ERIC MARK ALLISON, ET AL.
CITGO PETROLEUM CORPORATION, ET AL.
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2007-2786 C/W 2007-3286 HONORABLE G. MICHAEL
CANADAY, DISTRICT JUDGE.
E. Landry Scofield, Gerard, Pohorelsky, Gallaugher &
Landry COUNSEL FOR: Defendant/Appellant - CITGO Petroleum
Albert Patrick, III R. Heath Savant Donahue, Patrick &
Scott COUNSEL FOR: Defendant/Appellee - R & R
Talbot Watson Bagget, McCall, Burgess COUNSEL FOR:
Plaintiffs/Appellees - Robert D. Marshall, Tamara N.
Marceaux, Daron Christopher Hidalgo, John Thomas Cochran,
Gewan Papillion, Alfred Joseph Carrier, Eric Mark Allison,
and Marcus Dwayne Clark
Marshall Joseph Simien, Jr. Simien Law Firm COUNSEL FOR:
Defendant/Appellant - CITGO Petroleum Corporation
Richard Elliott Wilson Cox, Cox, Filo, Camel & Wilson
COUNSEL FOR: Plaintiffs/Appellees - Gewan Papillion, Eric
Mark Allison, Marcus Dwayne Clark, John Thomas Cochran, Daron
Christopher Hidalgo, Tamara N. Marceaux, Alfred Joseph
Carrier, and Robert D. Marshall
Isenberg Joshua O. Cox Barrasso Usdin Kupperman Freeman &
Sarver, L.L.C. COUNSEL FOR: Defendant/Appellant - CITGO
composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J.
Gremillion, and Candyce G. Perret, Judges.
ULYSSES GENE THIBODEAUX CHIEF JUDGE.
defendant, CITGO Petroleum Corporation (CITGO), appeals the
trial court's judgment denying its motion for summary
judgment on the issue of statutory employer immunity. The
dispute arose following a release of toxic slop oil and fumes
and wastewater for which CITGO stipulated fault. Finding
genuine issues of material fact and law, we affirm the trial
court's judgment denying CITGO's motion for summary
decide whether the trial court erred in denying CITGO's
motion for summary judgment on the issue of statutory
AND PROCEDURAL HISTORY
rainfall on June 19, 2006, flooded CITGO's waste
treatment facility, and CITGO released toxic slop oil and
wastewater into the Calcasieu River and surrounding
waterways. On the same date, CITGO also released toxic fumes,
hydrogen sulfide (H2S) and sulfur dioxide (S02),
into the air. It is estimated that close to 1, 000 people
filed tort suits in the Lake Charles area based upon injuries
caused by the toxic releases. Trials have been ongoing, and
many damages have been awarded.
months following the releases, CITGO hired various local
companies/contractors to clean the oil and sludge from the
waterways, exposing additional workers to the toxic liquid
and fumes. On September 19, 2008, CITGO filed an Admission of
Fault for the releases as to "all cases" filed by
the law firm of Baggett McCall and the firm of Cox, Cox,
Filo, Camel & Wilson. In the Admission, CITGO stated that
it would "pay plaintiffs for all their compensatory
damages, if any" which they could prove were proximately
caused by the releases on June 19, 2006. The present
Plaintiffs were party litigants at the time of the
stipulation of fault.
December 2016, over ten years after the releases and the
initial cleanup activities, CITGO filed motions for summary
judgment in the now-consolidated suits of Eric Mark
Allison, et al. v. CITGO Petroleum Corporation, et al.
(Trial Docket No. 2007-2786, Appeal No. 18-302) and
Wilvon Allison, el al. v. CITGO Petroleum Corporation, et
al. (Trial Docket No. 2007-3286, Appeal No. 18-303).
Therein, CITGO asserted that it was the statutory employer of
certain plaintiffs and was, therefore, immune from tort suits
by those plaintiffs. In support of its motions, CITGO
attached partial contracts containing language that it was
the statutory employer of the contractors' employees.
combined hearing on the two above-listed motions for summary
judgment on January 13, 2017, the trial court found the
partial contracts inadmissible and denied CITGO's motions
as to nine plaintiffs. The trial court mailed the
consolidated judgment of denial on February 6, 2017. CITGO
did not seek writs on the judgment. The plaintiffs proceeded
to trial on the merits on damages and causation on February
13, 2017, and a consolidated final judgment awarding them
damages was mailed in December 2017. CITGO did not raise the
issue of statutory immunity at the trial on the merits; nor
did it attempt to supply the missing parts of the contracts.
has now filed a suspensive appeal of the final judgment on
causation and damages as to five plaintiffs working under
three contractors, but it does not appeal any element of the
damage awards. Rather, CITGO appeals the earlier ruling
denying CITGO's statutory employer status. The denial of
a motion for summary judgment is an interlocutory judgment
which is not subject to appeal. See La.Code Civ.P.
arts. 968, 1841, and 2083. The only remedy is to request the
appellate court to exercise its supervisory jurisdiction by
applying for writs. Louviere v. Byers, 526 So.2d
1253 (La.App. 3 Cir. 1988) (citing Batson v. Time
Inc., 298 So.2d 100 (La.App. 1st Cir.1974)). The
thirty-day time period for taking writs from the February 6,
2017 judgment denying summary judgment is long past.
See Uniform Rules-Courts of Appeal, Rule 4-3.
while not addressing this exact procedural posture, where no
part of the final judgment on causation and damages is being
appealed, we have generally held that review of an
interlocutory judgment may be obtained by assigning the issue
as error in the unrestricted appeal of the final, appealable
judgment to which it relates. See Boquet v. Boquet,
18-105 (La.App. 3 Cir. 3/21/18), 241 So.3d 1127; Martinez
v. Rivet, 16-100 (La.App. 3 Cir. 4/13/16), 190 So.2d
461; Babineaux v. Univ. Med. Ctr., 15-292 (La.App. 3
Cir. 11/4/15), 177 So.3d 1120. Here, where there was no
objection to the appeal, we will review the denial of
CITGO's motion for summary judgment. For the reasons that
follow, we affirm the judgment of the trial court denying
summary judgment on the issue of statutory employer immunity.
STANDARD OF REVIEW
Appellate courts review the grant or denial of a motion for
summary judgment de novo, "using the same criteria that
govern the trial court's determination of whether summary
judgment is appropriate; i.e. whether there is any genuine
issue of material fact, and whether the movant is entitled to
judgment as a matter of law." Samaha v. Rau,
07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882; La.Code
Civ.P. art. 966(A)(3). The party that files a motion for
summary judgment bears the burden of proof on the motion.
La.Code Civ.P. art. 966(D). If, however, the
moving party will not bear the burden of proof at trial on
the issue addressed in the motion and points out that
there is an "absence of factual support for one or more
elements essential to the adverse party's claim, action,
or defense[, ]" the non-moving party must then
produce evidence showing that a genuine issue of material
fact exists "or that the mover is not entitled
to judgment as a matter of law." La. Code Civ.P.
art. 966(D)(1). If the non-moving party then fails to
produce such evidence, "there is no genuine
issue of material fact[, ] and summary judgment will be
granted." Bufkin v. Felipe's La., LLC,
14-288, p. 3 (La. 10/15/14), 171 So.3d 851, 854.
Stutes v. Greenwood Motor Lines, Inc., 17-52, p. 5
(La.App. 3 Cir. 11/22/17), 234 So.3d 75, 80 (emphasis added).
these consolidated suits, CITGO contends that the trial court
erred in denying it statutory employer status as to Gewan
Papillion, Alfred Carrier, John Cochran, Earl Jones, and
Wilvon Allison, where their direct employers/contractors had
contracts with CITGO stating that CITGO was the statutory
employer of the contractors' employees. The three
contracts at issue are between CITGO and Miller Environmental
Services, Inc. (Miller Environmental), Gulf Services
Mechanical, LLC (Gulf Services), and Angelle Concrete, Inc.
(Angelle Concrete).CITGO contends that it properly submitted
the relevant portions of the three contracts, along with
affidavits of CITGO's representatives, Jamie Boudreaux
and Ray Hill,  proving CITGO's statutory employer
status, and the trial court erred in excluding the contracts
from evidence. CITGO further contends that Plaintiffs did not
timely object to the incomplete condition of the contracts in
their opposition brief in violation of La.Code Civ.P. art.
further argues that, even if Plaintiffs had objected timely,
it was still error to exclude CITGO's offerings
"since it is plaintiffs' burden, not CITGO's, to
demonstrate to the trial court that the [missing portions of
the] contract exhibits which were not offered [by
CITGO] contained language which would somehow affect or
change the statutory employer language in the primary portion
of the contracts" (emphasis added). CITGO further
contends that Plaintiffs were working pursuant to contracts
giving CITGO statutory immunity from tort, and that
Plaintiffs failed to present "any evidence creating a
genuine factual issue concerning plaintiffs' status as
statutory employees and, thus, CITGO was entitled to summary
judgment." For the following reasons, we find no merit
in any of CITGO's contentions.
of Plaintiffs' Objections to Contracts
we address the contracts at issue, we will address
CITGO's assertions regarding the timeliness of
Plaintiffs' objections under La.Code Civ.P. art.
966(D)(2) (emphasis added), which states:
The court may consider only those documents filed in support
of or in opposition to the motion for summary judgment and
shall consider any documents to which no objection is made.
Any objection to a document shall be raised in a timely
filed opposition or reply memorandum. The court shall
consider all objections prior to rendering judgment. The
court shall specifically state on the record ...