United States District Court, E.D. Louisiana
DANIEL KENNEDY, ET AL.
BRASKEM AMERICA, INC., ET AL.
ORDER AND REASONS
(L C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court is the defendants' motion for summary judgment
invoking an immunity defense under the Texas Workers'
Compensation Act. For the reasons that follow, the motion is
DENIED without prejudice.
lawsuit arises from a construction worker's claim that he
was severely injured after being struck by a large piece of
mud which caused him to fall. Daniel Kennedy, who lives in
Mississippi, alleges that he was injured on December 2, 2017
while working on a construction site at a petrochemical
facility, located in LaPorte, Texas. The site and facility
are owned by Braskem America, Inc., which is incorporated in
Delaware with its principal place of business in
Pennsylvania. At the time of the incident, Linde Engineering
North America, Inc., which is incorporated in Delaware with
its principal place of business in Oklahoma, was the
contractor on the project involving engineering, procuring,
and constructing a polypropylene plant for Braskem. Kennedy
worked on the site as an employee of an alleged project
subcontractor, Cajun Deep Foundations, LLC.
1, 2017, Braskem contracted with LENA to act as the general
contractor on the project. Several months later, the original
Engineering, Procurement, and Construction Contract (EPC
Contract), which is governed by Texas law, was amended on
October 1, 2017. The amendment deleted the parties' prior
agreement on insurance, and replaced it with an Owner
Controlled Insurance Program (the “OCIP”). By the
OCIP, Braskem provided workers' compensation insurance
coverage for LENA, all tiers of subcontractors enrolled in
the OCIP, and their employees for on-site work on the
project. Article 18.1.1 of the Amended EPC Contract provides:
Owner has arranged for the Work to be performed under this
Contract to be insured under its OCIP Program. The OCIP is an
insurance program that insures Owner eligible and enrolled
Contractor and its Subcontractors, and other Owner-designated
parties for Work performed at the covered Project Site.
Certain contractor and subcontractors are excluded from this
OCIP and these parties are identified in Exhibit C-11,
Schedule 001. Coverage under the OCIP includes Workers
Compensation and Employers Liability, General Liability and
Umbrella Liability (excluding automobile, rental equipment
(owned or third party), aircraft, watercraft, professional,
and environmental liability) and apply only to the operations
of Contractor and its Subcontractor of any tier conducted at
or emanating from the specified Project Site. Such OCIP
insurance does not apply to manufacturing, fabrication, or
other operations at Contractor's regular offsite main or
branch office, warehouse, or similar places of business.
Contractor shall enroll in OCIP provided by Owner. The
provisions of this Article 18.1.1 shall apply to Contractor
and any Subcontractors of any tier to the extent enrolled in
and covered by the OCIP unless otherwise agreed upon by the
Parties. It is the responsibility of the Contractor acting as
Owner's Construction Manager and Prime Contractor to
include the OCIP requirements in all subcontracts and to
insure that any lower tier contracts include the OCIP
added). Liberty Mutual was the insurance carrier for the
workers' compensation coverage provided under the OCIP.
after Braskem established the OCIP, on October 17, 2017,
Cajun Constructors, LLC, allegedly one of the subcontractors
on the project, enrolled in the OCIP. On November 13, 2017,
Liberty Mutual issued to LENA Policy Number
WA2-65D-292072-037, which is governed by Texas Workers'
Compensation law, providing LENA with workers'
compensation coverage insurance from October 1, 2017 to April
30, 2020. Also, on November 13, 2017, Liberty Mutual issued
to Cajun Constructors, LLC, Policy Number WA2-65D-292072-047
(the “Cajun Constructors Policy”) providing Cajun
Constructors with workers' compensation coverage from
October 17, 2017 to April 30, 2020.
December 2, 2017, it is alleged that a large piece of mud
fell onto Kennedy's head while he was working for Cajun
Deep at the project site. As a result, he fell to the ground,
injuring his head, neck, thoracic and lumbar spine, ankle,
days after the incident, on December 7, 2017, a claim was
submitted to Liberty Mutual under the Cajun Constructors
Policy in connection with Kennedy's alleged injury. In
processing Kennedy's claim, it was discovered that Cajun
Deep was not enrolled in the OCIP. Nevertheless, Liberty
Mutual agreed to provide coverage under the Cajun
Constructors Policy. Liberty Mutual insured Cajun Deep under
the Cajun Constructors Policy, effective November 20, 2017,
which is allegedly the date on which Cajun Deep became a
subcontractor on the project.
November 5, 2018, Kennedy filed a “disputed
claim” for workers' compensation in
Louisiana. Three weeks later, on November 21, 2018,
Kennedy filed an Employee's Claim for Compensation for a
Work-Related Injury or Occupational Disease with the Texas
Department of Insurance, Division of Workers'
Compensation. On November 30, 2018, Kennedy and his wife,
Brandi Smith, sued Braskem America, Inc. and Linde
Engineering North America, Inc. in this Court, alleging
negligence and premises liability. The defendants now move
for summary judgment that they are immune from suit.
Rule of Civil Procedure 56 instructs that summary judgment is
proper if the record discloses no genuine dispute as to any
material fact such that the moving party is entitled to
judgment as a matter of law. No. genuine dispute of fact
exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). A genuine dispute of
fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Court emphasizes that the mere argued existence of a factual
dispute does not defeat an otherwise properly supported
motion. See id. Therefore, "[i]f the evidence
is merely colorable, or is not significantly probative,"
summary judgment is appropriate. Id. at 249-50
(citations omitted). Summary judgment is also proper if the
party opposing the motion fails to establish an essential
element of his case. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). In this regard, the non-moving
party must do more than simply deny the allegations raised by
the moving party. See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
Rather, he must come forward with competent evidence, such as
affidavits or depositions, to buttress his claims.
Id. Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in
evidence at trial do not qualify as competent opposing
evidence. Martin v. John W. Stone Oil Distrib.,
Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P.
56(c)(2). "[T]he nonmoving party cannot defeat summary
judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007)(internal quotation marks and citation omitted). In
deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most
favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378 (2007). Although the Court must
"resolve factual controversies in favor of the nonmoving
party," it must do so "only where there is an
actual controversy, that is, when both parties have submitted
evidence of contradictory facts." Antoine v. First
Student, Inc., 713 F.3d 824, 830 (5th Cir.
2013)(internal quotation marks and citation omitted).
“A federal court sitting in diversity jurisdiction must
apply the choice of law rules of the forum state when a
conflict of law exists.” Burdett v. Remington Arms
Co., L.L.C., 854 F.3d 733, 735 (5th Cir. 2017) (quoting
Ingalls Shipbuilding v. Federal Ins. Co., 410 F.3d
214, 230 (5th Cir. 2005)). Neither side identifies an actual
conflict between Texas and Louisiana law. Nevertheless, the
defendants' motion is predicated on Texas law, the only