WILLIE F. WALTON
DUSTIN GUIDRY, CLINT EDWARD GIVENS, AND A-PORT, LLC
from the 21st Judicial District Court In and for the Parish
of Tangipahoa State of Louisiana Case No. 2013-0003330 The
Honorable Robert H. Morrison, Judge Presiding
Gregory E. Bodin Christopher M. Vitenas Baton Rouge,
Louisiana Counsel for Third Party Defendant-Appellant
Louisiana Workers' Compensation Corporation
H. LeBas F. Douglas Ortego Lafayette, Louisiana Counsel for
Third Party Plaintiffs-Appellees Original USA General Labor,
LLC and American Interstate Insurance Company
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
Workers' Compensation Corporation ("LWCC")
appeals the judgment of the Twenty-First Judicial District
Court granting summary judgment in favor of Original USA
General Labor, LLC ("Original USA") and its
insurer, American Interstate Insurance Company
("AIIC"). For the following reasons, we affirm.
AND PROCEDURAL HISTORY
LLC ("A-Port") is a shorebase facility located in
Grand Isle, Louisiana that provides crane, forklift, storage,
and other services to its customers by transporting inbound
and outbound equipment and materials. Occasionally, A-Port
requires additional personnel when its permanent employees
are on leave or there is an increased demand for services by
customers. On June 20, 2012, A-Port entered into a letter
agreement with Original USA in which Original USA agreed to
provide riggers to A-Port for a fixed rate of $23.00 per
Walton ("Mr. Walton") was hired by Original USA to
work as a rigger beginning on May 23, 2011, and was assigned
to provide labor services to businesses in the
Lafourche/Terrebonne Parish areas. Mr. Walton worked at the
A-Port facility from October 20, 2012, until the day he was
injured, October 31, 2012. Mr. Walton was injured while
assisting the crane operator, Dustin Guidry, in the loading
of an industrial mud tank onto a flatbed trailer. Another
employee, Clint Givens, was also assisting with loading the
mud tank. During this process, Mr. Walton suffered injuries
to his left foot and ankle.
Walton filed a tort suit against Mr. Guidry, Mr. Givens, and
A-Port, alleging that the accident and his injuries were
caused by the negligence of A-Port and its employees. The
defendants in that case filed a motion for summary judgment,
contending that they were entitled to judgment as a matter of
law on the basis that A-Port was a borrowing employer and,
thus, immune from tort liability. The trial court granted
their motion for summary judgment, finding there was no issue
of material fact that Mr. Walton was the borrowed employee of
A-Port and that Mr. Walton's right of recovery was
therefore limited to workers' compensation. Upon appeal,
this Court affirmed the trial court's findings and held
that Mr. Walton was a borrowed employee of A-Port. See
Walton v. Guidry, 2015-0196 (La.App. 1 Cir. 9/18/15);
2015 WL 5515725 (unpublished).
Original USA and its insurer, AIIC, sought and obtained
permission to file a petition as intervenors for a
third-party demand against A-Port and A-Port's
workers' compensation insurer, LWCC. In their third-party
demand, Original USA and AIIC alleged that a contract existed
between Original USA and A-Port that required A-Port (as a
borrowing employer) and LWCC to reimburse Original USA and
AIIC for the Longshore & Harbor Workers' Compensation
("workers' compensation") benefits and to
assume responsibility for the payment of future workers'
compensation benefits to Mr. Walton.
August 10, 2016, LWCC filed an answer to Original USA and
AIIC's third party demand, along with a reconventional
demand seeking a declaratory judgment that the written
contract between A-Port and Original USA barred Original USA
and AIIC from seeking reimbursement or recovery of
workers' compensation benefits paid from A-Port or LWCC.
On August 24, 2016, Original USA and AIIC filed a motion for
summary judgment. In their motion, Original USA and AIIC
alleged that LWCC was the responsible carrier on Mr.
Walton's workers' compensation claim. Specifically,
Original USA and AIIC argued that because A-Port was a
borrowing employer, LWCC (as A-Port's workers'
compensation insurer) was required to pay the workers'
compensation benefits of Mr. Walton and to reimburse AIIC for
any workers' compensation benefits it had already paid to
Mr. Walton. Original USA and AIIC further argued that because
the contract contained no valid and enforceable
indemnification agreement, no "waiver of subrogation,
" and no reference to "alternate employer coverage,
" LWCC was the responsible carrier on this claim.
Original USA and AIIC based their arguments primarily on the
holding of Sanchez v. Harbor Const. Co., Inc.,
2008-0316 (La.App. 4 Cir. 10/1/08); 996 So.2d 584, writ
denied, 2008-2572 (La. 1/9/09); 998 So.2d 720.
memorandum in opposition to Original USA and AIIC's
motion for summary judgment, LWCC argued that the contract
between Original USA and A-Port required that Original USA
procure workers' compensation insurance to all Original
USA payroll employees, including Mr. Walton. In support of
this argument, LWCC points to the contract that provided the
hourly rate for riggers, which stated that the hourly rate
"includes Original USA General Labor providing the
required General Liability and Workers Compensation Insurance
for our personnel." LWCC further argued that the AIIC
policy issued to Original USA contained an alternate employer
endorsement, which, along with the pay rate information,
indicates that A-Port would be insured for its compensation
obligations as Walton's borrowing employer and that
recovery would be waived against the insurer of the borrowing
employer. LWCC argued that Original USA and AIIC were
therefore not entitled to summary judgment. AIIC argued in
response that the alternate employer endorsement proffered by
LWCC would not take effect unless there was a contractual
requirement to trigger it. AIIC argued that there was no such
trigger in the present case.
November 29, 2016, the trial court granted the motion for
summary judgment filed by Original USA and AIIC, dismissing
the claims asserted by LWCC in its reconventional and third
party demands. On January 6, 2017, the trial court amended
its judgment and certified the judgment as final for appeal
purposes pursuant to La. C.C.P. art. 1915(B).
assigns the following as error:
(1) The Trial Court erred in ruling that LWCC is the
responsible carrier for Walton's LHWCA benefits when
A-Port is an additional insured under Original USA's
policy with AIIC, which further states that AIIC will not
pursue LWCC as insurer of A-Port, the ...