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O'Steen v. Valero Refining-Meraux LLC

United States District Court, E.D. Louisiana

April 10, 2019


         SECTION: “H”


          Jane Triche Milazzo, United States District Judge.

         Before the Court are Defendant Valero Refining-Meraux, LLC's Motion for Partial Summary Judgment (Doc. 14); Defendant Shawn Trahan's Motion for Summary Judgment (Doc. 32); and Defendants' Motion to Dismiss (Doc. 42). For the following reasons, the Motions are GRANTED.


         This matter arises out of injuries that Plaintiff Larry O'Steen alleges he sustained when he suffered a chemical burn while working at Defendant Valero Refining-Meraux, LLC's (“Valero”) refinery. At the time of the incident, Plaintiff was an employee of Zachry Industrial, Inc. (“Zachry”) at the Valero refinery. In the process of rinsing and draining an inactive vessel, a chemical solution sprayed onto Plaintiff, burning through his personal protective equipment and contacting his skin.

         In Plaintiff's Petition for Damages, First Supplemental and Amending Petition for Damages, and Amended Complaint (collectively “Complaint”), he brings claims for negligent and intentional torts against Valero and two of its employees. Plaintiff first alleges that Defendant Kerry Vic failed to properly inspect the vessel prior to issuing a permit allowing Plaintiff to begin cleaning the vessel. He later alleges that Vic did inspect the vessel and issued a permit despite full awareness of the chemicals present there. He also alleges that Shawn Trahan, a nurse employed by Valero who treated Plaintiff's burns, failed to properly treat his injury and advised him not to seek outside treatment. Plaintiff alleges that Valero is vicariously liable for the negligent and intentional acts of Vic and Trahan. Further, Plaintiff alleges that he was retaliated against by Valero for reporting its mishandling of caustic chemicals to the Occupational Safety and Health Administration (“OSHA”).

         Defendants Valero and Trahan separately moved for summary judgment arguing that Plaintiff's negligence claims are barred by the Louisiana Worker's Compensation Act (LWCA). In addition, Defendants Valero and Trahan moved to dismiss the remaining claims against them, arguing that Plaintiff has failed to plead sufficient facts to support them. This Court will address each motion in turn.


         A. Motion for Summary Judgment

         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”[1] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[2]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[3] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”[4] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”[5] “In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non- movant would bear the burden of proof at trial.”[6] “We do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”[7] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”[8]

         B. Motion to Dismiss

         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts “to state a claim for relief that is plausible on its face.”[9] A claim is “plausible on its face” when the pleaded facts allow the court to “draw reasonable inference that the defendant is liable for the misconduct alleged.”[10]A court must accept the complaint's factual allegations as true and must “draw all reasonable inferences in the plaintiff's favor.”[11] The court need not, however, accept as true legal conclusions couched as factual allegations.[12] To be legally sufficient, a complaint must establish more than a “sheer possibility” that the plaintiff's claims are true.[13] If it is apparent from the face of the complaint that an insurmountable bar to relief exists and the plaintiff is not entitled to relief, the court must dismiss the claim.[14] The court's review is limited to the complaint and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.[15]


         A. Valero's Motion for Summary Judgment

         The Louisiana Worker's Compensation Act (LWCA) provides employers immunity from tort liability for injuries their employees suffer in the course and scope of employment.[16] When an employer enters into a contract with a “principal” to perform the principal's work, and the principal qualifies as a “statutory employer” under the LWCA, tort immunity extends to the principal.[17]

         Louisiana Revised Statutes § 23:1061 establishes the requirements that a principal must meet to qualify as a statutory employer.[18] Although the statute is relatively lengthy, it cannot be properly interpreted without reference to each subsection in the statute. As such, this Court reproduces the entire text of the statute here.

         The statute provides:

(1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal's trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor's employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.[19]

         The statute, then, clearly provides that a statutory employer relationship “shall not exist” unless one of two situations arise: either (1) “there is a written contract . . . which recognizes the principal as a statutory employer;” or (2) “whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate employer.”[20] Here, the Multi-Site Work Agreement (the “Contract”) between Valero and Zachry falls into the first category and expressly states that:

[P]erformance of any Work by [Zachry] constitutes their recognition and agreement that a statutory employer relationship as envisioned by La. R.S. 23:1061(A), as amended by Act 315 of 1997, exists between the [Zachry] and Valero. Such statutory employer relationship applies to [Zachry's] direct, borrowed, special or statutory employees. Further, the parties acknowledge that the Work to be performed under this Agreement is an integral part of, or essential to, the ability of Valero to generate its own goods, products or services.[21]

         Accordingly, the written Contract between Valero and Zachry recognizes Valero as the statutory employer of Zachry's employees. Pursuant to § 23:1061(A)(3), Valero is therefore entitled to a rebuttable presumption that it is Plaintiff's statutory employer. The burden then shifts to Plaintiff “to rebut this presumption by demonstrating that the work he was performing at the time he sustained his injuries was not an integral part of or essential to [Valero's] ability to generate its goods, products, or services.”[22]

         Plaintiff does not offer any evidence to rebut this presumption, and indeed, does not defend Valero's summary judgment motion on its merits. Rather, Plaintiff offers two procedural objections in an effort to prevent the entry of summary judgment. First, Plaintiff complains that Valero has failed to properly authenticate the Contract upon which its motion relies. The Contract was provided to this Court as an exhibit attached to the Notice of Removal, along with a declaration from the Supply Chain Executive Manager at Valero, John St. Pierre, II, stating that he has reviewed the Contract and its amendments. Plaintiff nitpicks certain statements or omissions made in St. Pierre's declaration, arguing that he fails to establish that he is the custodian of records or that he has personal knowledge of the contents of the Contract.

         Federal Rule of Civil Procedure 56(c), however, clearly states that a party may only object to evidence used to support a summary judgment motion if such evidence “cannot be presented in a form that would be admissible in evidence” at trial.[23] Plaintiff offers no reason that the Contract “is not capable of being admitted at an eventual trial.”[24] Indeed, Plaintiff offers no reason that the Contract is not an authentic representation of the agreement between the parties. Rather, Plaintiff relies only on technical arguments that are inappropriate at the summary judgment stage.

         Second, Plaintiff complains that Valero's summary judgment motion is premature and that he should be allowed a chance to conduct discovery. Federal Rule of Civil Procedure 56(d) provides that, “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, ” the court may defer consideration of the motion or allow the nonmovant additional time for discovery. Plaintiff contends that he should be allowed time for discovery to determine whether the Contract and its amendments “are in fact authentic, if they are complete, or if there are any additional contracts or agreements.”[25] Plaintiff's request ...

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