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Allison v. Citgo Petroleum Corp.

Court of Appeals of Louisiana, Third Circuit

December 19, 2018

ERIC MARK ALLISON, ET AL.
v.
CITGO PETROLEUM CORPORATION, ET AL.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-2786 C/W 2007-3286 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE.

          Robert E. Landry Scofield, Gerard, Pohorelsky, Gallaugher & Landry COUNSEL FOR: Defendant/Appellant - CITGO Petroleum Corporation

          Kirk Albert Patrick, III R. Heath Savant Donahue, Patrick & Scott COUNSEL FOR: Defendant/Appellee - R & R Construction, Inc.

          Wells 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

          Craig Isenberg Joshua O. Cox Barrasso Usdin Kupperman Freeman & Sarver, L.L.C. COUNSEL FOR: Defendant/Appellant - CITGO Petroleum Corporation

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE.

         The 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 judgment.

         I.

         ISSUES

         We must decide whether the trial court erred in denying CITGO's motion for summary judgment on the issue of statutory employer immunity.

         II.

         FACTS AND PROCEDURAL HISTORY

         A heavy 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.

         In the 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.

         In 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.

         At the 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.

         CITGO 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.[1] 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.

         However, 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.

III.
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).

         IV.

         LAW AND DISCUSSION

         In 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).[2]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, [3] 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. 966(D)(2).

         CITGO 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.

         Timeliness of Plaintiffs' Objections to Contracts

         Before 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 ...

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