text:
    RESIDENTS OF SHENANDOAH ESTATES SUBDIVISION v. GREEN TRAILS, L.L.C., Shenandoah Golf Club, L.L.C., East Baton Rouge Parish Planning Commission, East Baton Rouge Parish Department of Public Works, & Parish of East Baton Rouge.
    No. 2005-CA-1331.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied July 17, 2006.
    Charles A. Schutte, Jr., Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, Counsel for Plaintiffs/Appellants.

      E. Wade Shows, Parish Attorney, Lea Anne Batson, Special Assistant Parish Attorney, Gwendolyn K. Brown, Assistant Parish Attorney, Baton Rouge, Counsel for Defendants/Appellees, City of Baton Rouge/Parish of East Baton Rouge, et al.
    Gerald L. Walter, Jr., A. Michael Dufil-ho, Deborah E. Lamb, Thomas D. Gilder-sleeve, Taylor, Porter, Brooks & Phillips L.L.P., Baton Rouge, Counsel for Defendant/Appellee, Green Trails, L.L.C.
    Hansel M. Harlan, LeClere Law Firm, Baton Rouge, Counsel for Defendant/Ap-pellee, Shenandoah Golf Club, L.L.C.
    Panel composed of Ad Hoc Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge Ad Hoc.

| ¡¡Appellants, the Residents of Shenandoah Estates Subdivision, appeal the judgment of the trial court, which held that Appellees, Green Trails, L.L.C., Shenandoah Golf Club, L.L.C., and the City of Baton Rouge/Parish of East Baton Rouge, et al., were not required to seek amendment to the Horizon Plan before submitting their application to the Planning Commission for the Parish of East Baton Rouge (Planning Commission) to subdivide the former Shenandoah Country Club Property into lots for the development of a residential subdivision. We affirm.

FACTS AND PROCEDURAL HISTORY

From around 1970 until February 28, 2005, when the business closed, Shenandoah Country Club was operated as a privately owned, for-profit commercial country club. It has never been owned or operated by Shenandoah Estates Subdivision or its homeowners’ association. Restrictive covenants in the deed, which required the property’s use as a country club, expired in 1995. The Rgolf course and associated facilities are located on three parcels of land, referred to as SCC-1, SCC-2, and SCC-3. On January 12, 2005, Shenandoah Golf Club sold parcels SCC-1 and SCC-3 to Green Trails, L.L.C., and on the same day granted Green Trails a lease with option to purchase parcel SCC-2.

Following the sale of the property, Green Trails and Shenandoah Golf Club filed an application with the Planning Commission for approval of a preliminary plat to subdivide the SCC property into 282 lots to be used for single family residences. Appellants, owners of some lots in Shenandoah Estates Subdivision (referred to as Residents), filed suit to stop the development, styled as a petition for injunctive relief, declaratory relief, and damages. The Petition further asked for a grant of Writ of Mandamus, requesting that the Planning Commission be forbidden to act upon the application for preliminary plat.

The Residents allege, among other things, that Green Trails and Shenandoah Golf Club were required to obtain from the Planning Commission an amendment to the Horizon Plan before the Planning Commission could act on their application to subdivide the property, because the proposed “land use” category (low density residential) is incompatible with the designated land use category shown on the 2010 Land Use Map (recreational). Defendants, Green Trails and Shenandoah Golf Club, argued that no amendment was nee-essary before proceeding to the Planning Commission with the application for preliminary plat, because the zoning does not have to be changed. All parties to the lawsuit filed a Joint Motion by All Parties to Sever For Trial the “Horizon Plan Conflict,” with the trial court agreeing to hear the matter on an expedited basis. All parties specifically reserved their rights to all other claims.

| ¡¿Following a hearing held on April 13, 2005, the trial court rendered a final judgment on May 9, 2005, ruling in favor of Appellees, denying the Writ of Mandamus, finding that no amendment to the Horizon Plan was necessary before Appellees could present their preliminary plat application to the Planning Commission. This devolu-tive appeal followed.

HORIZON PLAN

The Horizon Plan was adopted by the Metropolitan Council on January 7, 1992, and was effective on April 1,1992.

The Horizon Plan is the 20-year “Comprehensive Land Use and Development Plan” for the City of Baton Rouge and Parish of East Baton Rouge. The plan acts as a “blueprint for the Future” by serving as a guide for officials making decisions about land use and development within the City-Parish. The Horizon Plan’s primary emphasis is to identify major issues that will influence future growth, to decide the actions necessary to address these issues, and to propose specific strategies that will help the City-Parish target its resources in the most efficient manner.

Structure of the Horizon Plan

The Horizon Plan is structured into twelve reports: A Horizon Plan Summary; the Horizon Plan Final Plan Report; seven Plan Elements; and three Special Reports. The Horizon Plan Summary provides a brief overview of the Comprehensive Land Use and Development Plan and is made available to the public. The Final Plan Report offers a more concise narrative on the overall Comprehensive Land Use and Development Plan for the future of the City-Parish. The Plan Elements are individual technical reports that address existing conditions and issues. The Elements are further divided into Goals, Objectives, Policies and Action Items.
* * * * *
The seven Elements of the Horizon Plan are: Land Use; Transportation; Wastewater, Solid Waste and Drainage; Conservation and Environmental Resources; Recreation and Open Space; Housing; and Public Services, Public Buildings and Health and Human Services.
The Horizon Plan also contains three Special Reports which describe implementation aspects for specific portions of the Horizon Plan. The Special Reports are: the Capital Finance and Capital Improvements Program, which addresses the financial implementation |r,of the Plan; the Plan Amendment Process, which outlines methods for updating and amending the Horizon Plan; and the Transition Rules, which examines how projects which were in various stages of development during the drafting of the Horizon Plan would be addressed and implemented into the Final Plan..

According to the briefs and evidence, one component of the Horizon Plan is the 2010 Land Use Map, which has been updated periodically in conjunction with the Horizon Plan’s mandate. This map differs from the Zoning Map in that it purports to show the actual “land use” of all the land in the parish (public and private), as opposed to the broader allowed land uses, which is reflected in the Zoning Map. The Shenandoah property is coded “green” on the land use map, which reflects that it is used for recreation.

Plaintiffs argue that the Developers are required to apply to the Planning Commission to amend the Horizon Plan first, before they submit an application for preliminary plat approval to the Planning Commission. First, they argue that such an amendment is required by Section 10.04(b) of the Plan of Government, which states:

(b) LEGAL EFFECT OF MASTER PLAN. Upon adoption of the Master Plan by the Planning Commission and Metropolitan Council, no subdivision, street, park or public way, ground or space, drainage, building development or structure, whether publicly or privately owned which is in conflict with the Master Plan or Zoning Ordinance of the City Parish shall be constructed or authorized by the appropriate department of the City-Parish government, until and unless the locations and extent thereof shall have been submitted to and approved by the Planning Commission and where appropriate, Zoning Commission. In case of disapproval, or approval the commission shall communicate its reasons to the Metropolitan Council, which shall have the power to overrule such disapproval or approval following public hearings, provided that any changes in the Master Land Use Plan shall require a 2/3 vote of the Metropolitan Council and upon such overruling the Metropolitan Council or appropriate office, department or agency shall have the power to proceed, and the Master Plan shall be amended to reflect such change or modification.
All land development regulations including zoning and map, subdivision regulations, roadway plan, and all public improvements, public facilities and all City-Parish regulatory actions relating to land use, subdivision and development approval shall be consistent with |7the comprehensive plan, element or portion thereof as adopted. For purposes of planning and land development process, the various types of local regulations or laws concerning the development of land may be combined in their totality in a single ordinance known as the Comprehensive Land Use and Development Code for the City of Baton Rouge and Parish of East Baton Rouge.

Plaintiffs argue that the Shenandoah property is restricted to recreational use by the Horizon Plan, and in particular the 2010 Land Use Map component, which becomes useless as a land use planning tool if it does not accurately reflect actual land use and if amendments are not approved according to the process set forth in the Horizon Plan itself. They point out that there are three methods to amend the Horizon Plan, located in Section 19.9 et seq of the Horizon Plan, which specifically apply to people seeking “land use” changes in the 2010 Land Use Map. Plaintiffs point out that requiring defendants to seek amendment to the 2010 Land Use Map may ultimately not defeat their proposed subdivision, but that they are required to apply for this amendment as a first step in the development process, since the proposed subdivision requires a different land use than the one currently designated on the 2010 map.

Defendants advance several arguments against plaintiffs’ position. Defendants argue that since the proposed land use, low density residential, is an allowed land use under the “rural” zoning district, no amendment is necessary. They argue that under the Horizon Plan’s “Transition Rules,” since the subdivision proposal is in partial conformance with the Horizon Plan, no amendment is necessary. Next, they argue that since the Horizon Plan explicitly included only public lands, not privately held property, in its needs assessment for recreation, no amendment is necessary. They contend that since this property has always been privately owned since even before the development of the Horizon Plan, the property’s designation as “recreational” on the 2010 Land Use Map merely reflects this property’s historical and actual usage, rather than a restriction on its actual use.

| sThe parties agree that more than one type of “land use” is permitted within zoning districts. For instance, the property in this case is zoned “rural.” The 2010 Land Use Map component of the Horizon Plan shows that this property’s land use is designated “recreational.” Defendants’ proposed development would be “low density residential.” In East Baton Rouge Parish, a rural zoning district permits several different types of land use, including both recreational and low density residential.

TRANSITION RULES

The transition rules, relied upon by the City Parish attorney, apply by their own terms to “development projects that are either in existence or under review in the period following the adoption of the Horizon Plan.” Transition Rules Special Report, P-28 at p. 383. In this case, it is clear that this project did not exist in any stage of development during the drafting of the HP. Green Trails had neither investment-backed expectations nor legally vested rights in this property at the time the Horizon Plan was drafted and later adopted in 1992. The property was burdened with restrictive covenants that did not expire until 1995. Green Trails did not purchase the property until 2005, well after the adoption of the Horizon Plan.

The defendants in this action sought the opinion of the City-Parish attorney on the application of the Transition Rules to this project. The City-Parish attorney felt that the Transition Rules applied to this project, such that an amendment to the Horizon Plan was unnecessary before the developer could apply for a preliminary plat approval. The law plainly requires courts to give great weight to the interpretation given an ordinance by the governing body that had enacted it. A reviewing court should not overturn such a determination unless it is clearly wrong l3or unless a different construction is clearly required. Kneipp v. City of Shreveport, 550 So.2d 748 (La.App. 2 Cir.1989).

This Court has read the entirety of the Transition Rules Special Report, P-28, and other Horizon Plan components. Though the Horizon Plan states in several places that the Transition Rules were meant to apply to projects that were in various stages of development during the drafting of the Horizon Plan, other language in the Transition Rules creates an ambiguity in how they should be applied. Specifically, on p. 341 of Chapter 4, Horizon Plan Transition Rules, the report states:

Property with existing zoning that is in conflict with the Horizon Plan, will be exempt from conformance with Horizon Plan until the existing zoning is changed or amended, except that if a preliminary subdivision plan or building plan is submitted prior to amendment of the existing zoning, or within tioo years after the effective date of the Horizon Plan, whichever is later, the exemption will be extended for two additional years to allow time to obtain final approval ...

(emphasis added).

The “whichever is later” language creates the ambiguity. This phrase appears to include this project, not just those that were in development while the Horizon Plan was drafted. We agree that the City-Parish had a basis upon which to apply the Transition Rules to this project, and this Court cannot say that they were clearly wrong.

Defendants’ argument regarding the private nature of the property is also compelling. La Const Art. 1, § 4, states that every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power. The Horizon Plan’s Recreational and Open Space Element document clearly and explicitly states, in several places, that privately owned land, even that which was currently and/or historically used as recreational, was not considered in assessing the parish’s current or future needs for recreational property. This lends hocredence to defendants’ position that no amendment to the Horizon Plan is required in this case because the “green” designation is not a “restriction” on the use of this private property.

Plaintiffs argue that without amending the Horizon Plan, important issues such as drainage and infrastructure will not be addressed. This Court has reviewed Chapter 4 of the Unified Development Code, which is entitled “Permits and Final Plat Approval.” Therein, the procedures for obtaining final plat approval are outlined. A reading of this section makes clear that issues such as drainage and infrastructure are considered as part of the developers’ application for a preliminary plat, which is before the Planning Commission at this time.

For the stated reasons we affirm the trial court’s denial of the Writ of Mandamus.

AFFIRMED.

      . From the record before us, we cannot determine whether the Planning Commission has yet acted upon the application for a preliminary plat approval.

      . The Horizon Plan is fully described below.

      . http://brgov.com/dept/planning/horizonlO/

      . http://brgov.com/dept/plannmgdiorizonlO/


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Ray Don EVERETT v. RUBICON, INCORPORATED, and Huntsman Chemical Corporation.
    No. 2004 CA 1988.
    Court of Appeal of Louisiana, First Circuit.
    June 14, 2006.

      Frank Tomeny, III, Jason L. Melancon, Tomeny & Fisher, Baton Rouge, for Plaintiff-Appellant Ray Don Everett.
    John P. Manard, Jr., Nora B. Bilbro, Phelps Dunbar, LLP, New Orleans, H. Alston Johnson, III, Phelps Dunbar, LLP, Baton Rouge, for Defendant-Appellee Rubicon, Inc.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

li>Ray Don Everett (Everett) appeals the district court’s judgment granting summary judgment in favor of Rubicon, Inc. (Rubicon), finding that Rubicon was Everett’s statutory employer and immune from tort liability. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Rubicon is a manufacturer of various chemicals, including Methyl Diphenyl Diisocyanate (MDI). On or about October 2, 2000, Rubicon contracted with Spartan Constructors, Inc. (Spartan) to perform certain maintenance work at Rubicon’s MDI facility in Geismar. The work contemplated by the contract included the repair and replacement of the facility’s concrete structures, roads, and underground piping for the fire water system. In the written contract, the parties specified that Rubicon was to be considered the statutory employer of Spartan’s employees for the purposes of LSA-R.S. 23:1061(A)(3). The parties further agreed that the work to be performed pursuant to the contract was an integral part of and essential to Rubicon’s ability to generate its goods, products, or services.

Everett, a direct employee of Spartan, was assigned to perform concrete work at the Rubicon facility pursuant to the contract. Specifically, Everett was assigned to break up the concrete support pedestals surrounding an amine brine receiver, which Rubicon used to collect waste chemicals normally generated in the production of MDI. While performing this task on or about February 11, 2001, Everett allegedly sustained injuries as a result of exposure to chemical-filled concrete particles at the facility.

Everett subsequently filed this tort action, seeking damages for his injuries. Rubicon responded by filing a motion for summary judgment, alleging that it was entitled to tort immunity as Everett’s statutory employer. After a hearing, the district court granted the motion and dismissed Everett’s suit against Rubicon. Everett appeals, contending the district court erroneously interpreted and applied the test for determining statutory employer status.

| summary JUDGMENT

Am appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

STATUTORY EMPLOYER DOCTRINE

The test for determining statutory employer status has undergone many changes since it was first established by the Louisiana Supreme Court in Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950). In Thibodaux, the Sun Oil Company (Sun Oil) had contracted with J.C. Chance Well Service, Inc. (Chance) to drill or rework one of its oil wells. Chance then contracted with Houston Oil Field Material Co., Inc. (Houston) to “fish out” drilling tools and implements that Chance employees had lost in the well during the drilling operations. While Chance and Houston employees were carrying out their tasks, the oil derrick belonging to Sun Oil collapsed. As a result, an employee of Houston was injured, and an employee of Chance was killed. Thibodaux, 49 So.2d at 852.

The plaintiffs subsequently filed suit in tort against Sun Oil and others. Sun Oil responded by filing a peremptory exception pleading the objection of no cause of action, contending that the plaintiffs’ exclusive remedy was in workers’ compensation. In affirming the lower courts’ rulings granting the exception, the supreme court stated:

Here, the Sun Oil Company is engaged in the business of exploring |4for and producing oil. The drilling of wells, the reworking, if necessary, and the “fishing out” of well tools and implements which become stuck in the course of drilling the well are all interrelated and component parts, though different phases, of oil production. In other words, both Thibodaux and Baker were performing services in connection with work which was part of the business, trade and occupation of Sun Oil Company, or so closely related thereto as to become an integral part thereof. Therefore, the allegations of fact in the instant case clearly bring the matter within the rule of law provided in Section 6, Par. 1 of the Workmen’s Compensation statute as now written.

Thibodaux, 49 So.2d at 854.

After Thibodaux, the courts applied this “integral relationship” test very liberally to grant tort immunity to principals, rarely finding instances in which contract work was not a part of the principal’s business. However, one area of contract work the courts traditionally held to be outside the principal’s trade, business, or occupation was that of new construction and reconstruction of the principal’s buildings and facilities. Kirkland v. Riverwood Int’l USA, Inc., 95-1830 (La.9/13/96), 681 So.2d 329, 333. See also Horrell v. Gulf & Valley Cotton Oil Co., Inc., 15 La.App. 603, 131 So. 709 (1930) (it is not part of the trade, business, or occupation of a manufacturing company to erect its factory building); Reeves v. Louisiana & A. Ry. Co., 282 So.2d 503 (La.1973) (it is not the business practice of an oil company to engage a contractor to construct a new coking unit at its refinery). But see Slocum v. Lamartiniere, 369 So.2d 201 (La.App. 3rd Cir.), writ denied, 372 So.2d 569 (La.1979) (construction of new building found to be part of grocery store owner’s trade, business, or occupation).

|aIn 1976, the legislature specifically granted tort immunity to a principal for the first time by amending LSA-R.S. 23:1032 to codify the Thibodaux “integral relationship” test. The amended statute tracked the language defining “principal” in LSA-R.S. 23:1061 and further provided, in pertinent part:

The rights and remedies herein granted to an employee or his dependent ... shall be exclusive of all other rights and remedies of such employee ... against his employer, or any principal or any ... employee of such employer or principal .... For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.

After this amendment, the supreme court noted that the almost limitless standard of the “integral relationship” test yielded inconsistent and often illogical results, since almost everything could be said to be integrally related to the principal’s trade, business, or occupation. Berry v. Holston Well Serv., Inc., 488 So.2d 934, 937 (La.1986). Therefore, in the ten years following the amendment of LSA-R.S. 23:1032, the supreme court began a dis-cernable shift from a liberal to a more restrictive construction of the statutory employer defense. Kirkland, 681 So.2d at 334. See Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La.1982) (genuine issue of material fact existed as to whether work of breaking concrete and digging underground pathway for telephone conduit was part of telephone company’s trade, business, or occupation); Benson v. Seagraves, 436 So.2d 525 (La.1983) (worker | ¿who was injured while performing electrical planning and design work in connection with a new service substation for a rural electric cooperative, was not statutory employee of cooperative since cooperative did not have employees who customarily performed such work); Lewis v. Exxon Corp., 441 So.2d 192 (La.1983) (overall project of converting plant from one manufacturing process to another was not part of refinery’s normal business, despite the fact that specific task worker was performing at the time of injury could be considered part of refinery’s business); Rowe v. Northwestern Nat’l Ins. Co., 471 So.2d 226 (La.1985) (disconnection and reconnection of high voltage electricity was not part of routine maintenance activities, because it was not within the skill, training, or expertise of the principal’s employees).

This shift toward a more restrictive interpretation of the test, when used as a defense, culminated in Berry, in which the supreme court formally acknowledged its abandonment of the “integral relationship” test that it had begun to reject with its decisions in Benson, Lewis, and Rowe. According to the supreme court, this shift was necessary because the “integral relationship” test was being interpreted too expansively, thus transforming a doctrine that was originally intended to provide secondary protection to an injured employee into one that granted immunity to principals, regardless of whether they actually paid compensation. Berry, 488 So.2d at 937. To replace this test, the court established a three-tiered analysis, which it believed was more in line with the purpose of the statutes.

In the first tier of the Berry analysis, a court was required to assess the scope of the contract work. The central question in this step was whether the contract work was specialized or non-specialized. According to the supreme court, contract work determined to be specialized per se was, as a matter of law, not a part of the principal’s trade, business, or occupation, and the principal was not the statutory employer of the specialized contractor’s employees. In making this assessment, a court was required to look to the entire scope of the contract work, rather than merely the specific task to which the individual employee had been assigned. Berry, 488 So.2d at 937-38.

If the contract work was not specialized, the next tier of the analysis required the court to compare the contract work to the principal’s trade, business, or occupation to [7determine if the contract work could be considered a part of the principal’s trade, business, or occupation. To help resolve this issue, the Berry court provided the following non-exhaustive list of guidelines established by prior jurisprudence:

(1) Is the contract work routine and customary? That is, is it regular and predictable? Nonrecurring or extraordinary constructions and repairs usually are outside the scope of the statute. On the other hand, general maintenance and repair work, which by their very nature allow the smooth and continued operation of the principal, are within the scope of coverage.
(2) Does the principal have the equipment and/or manpower capable of performing the contract work? This is a sub-species of the specialty inquiry.... Here the primary focus is on determining whether the contract work as relates to the principal is handled ordinarily through employees.
(3)What is the practice in the industry relative to the contract work? Do industry participants normally contract out this type of work or do they have their own employees perform the work?

Berry, 488 So.2d at 938 (citations omitted).

The final tier of the analysis required a court to determine if the principal was engaged in the work at the time of the accident. In order for a principal to come within the scope of the statutory employer statute, he must have been engaged in the enterprise at the time of the injury. Berry, 488 So.2d at 938-39.

Thus, under the Berry analysis, statutory employer status was precluded as a defense when (1) the work was specialized per se, or (2) when the principal was not actually engaged in the contract work at the time of the accident. The second tier of the analysis merely provided a list of some of the factors that the courts had considered in determining statutory employment status in the ten years preceding the Berry decision. Kirkland, 681 So.2d at 335.

In 1989, the legislature amended the first paragraph of LSA-R.S. 23:1061 to provide, in pertinent part:

The fact that work is specialized or nonspecialized, is extraordinary construction or simple maintenance, is work that is usually done by contract or by the principal’s direct employee, or is routine or unpredictable, shall not prevent the work undertaken by the principal from being considered part of the principal’s trade, business, or occupation, regardless of whether the principal has the equipment or manpower capable of performing the work.

The legislature did not indicate that the amendment was intended to respond to the Berry test; however, because the language of the amendment tracked the analysis set | ¿forth in Berry, the majority of appellate courts determined that the amendment was intended to legislatively overrule Berry and return to the more liberal “integral relationship” test established by Thibodaux. Kirkland, 681 So.2d at 335-336; see Frith v. American Motorists Ins. Co., 613 So.2d 249, 251 (La.App. 1st Cir.1992), writ denied, 617 So.2d 932 (La.1993); Young v. Lyons Petroleum, Inc., 598 So.2d 702, 706 (La.App. 3rd Cir.), writs denied, 605 So.2d 1149, 1150 (La.1992); Forchia v. Browning-Ferris Indus. of Louisiana, 629 So.2d 1238, 1239 (La.App. 4th Cir.1993); Hanks v. Shell Oil Co., 93-737 (La.App. 5th Cir.1/25/94), 631 So.2d 1189, 1194, reversed on other grounds, 94-0483 (La.4/4/94), 635 So.2d 1118.

In Kirkland, the supreme court addressed a split in the appellate circuits on the effect of the 1989 amendment. However, unlike the majority of the appellate courts, the supreme court determined that the 1989 amendment was intended primarily to overrule the part of Berry dealing with specialization per se and to declare that a finding of specialization was not determinative of the absence of a statutory employer relationship. Kirkland, 681 So.2d at 336. The supreme court further stated:

The 1989 amendment does not prohibit the court’s considering the factors enumerated in Berry, the amendment merely proscribes making any one of the factors conclusive of the determination of whether the contract work was part of the principal’s trade, business or occupation. In effect, we interpret the 1989 amendment as intended to overrule Berry, but not intended to overrule this court’s decisions, in the ten years preceding Berry, that the court was to consider all pertinent factors under the totality of circumstances.
We therefore hold that the appropriate standard under the amended Section 1061 for determining whether the contract work is part of the alleged principal’s trade, business or occupation is for the court to consider all pertinent factors under the totality of the circumstances. The presence or absence of any one factor is not determinative, and the presence of one factor may compensate for the lack of another. Among those factors to be considered in determining whether a statutory employment relationship exists are the following:
(1) The nature of the business of the alleged principal;
(2) Whether the work was specialized or non-specialized;
(3) Whether the contract work was routine, customary, ordinary or usual;
(4) Whether the alleged principal customarily used his own employees to perform the work, or whether he contracted out all or most of such work;
|fl(5) Whether the alleged principal had the equipment and personnel capable of performing the contract work;
(6) Whether those in similar businesses normally contract out this type of work or whether they have their own employees perform the work;
(7) Whether the direct employer of the claimant was an independent business enterprise who insured his own workers and included that cost in the contract; and
(8) Whether the principal was engaged in the contract work at the time of the incident.

Kirkland, 681 So.2d at 336-37.

In 1997, the legislature again amended LSA-R.S. 23:1061 to its present form, which provides:

A.(l) 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 contract 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.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this | inSection would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor. (Emphasis added).

For the first time, the statute provided a definition for what work should be considered part of the “principal’s trade, business, or occupation.” The amendment further provided that when the written contract between the principal and a contractor recognizes a statutory employer relationship, there shall be a rebuttable presumption of such a relationship between the principal and the contractor’s employees, whether direct or statutory employees. In addition to these substantive changes in the statute, the legislature specifically noted its intention to legislatively overrule the statutory employer tests stated in Berry and Kirkland. See 1997 La. Acts, No. 315, § 2.

The supreme court has not yet addressed the effect of the 1997 amendment on the statutory employer standard. However, several appellate courts have addressed the amendment, finding that the amendment established a more liberal standard for statutory employer determination.

In Jackson v. St. Paul Insurance Company, 04-0026 (La.App. 1st Cir.12/17/04), 897 So.2d 684, writ denied, 05-0156 (La.3/24/05), 896 So.2d 1042, the principal, Gulf Liquids New River Project, L.L.C. (Gulf Liquids) was in the business of processing chemicals for transportation and sale. Gulf Liquids and Gulsby Engineering, Inc. entered into a written contract for the construction of Gulf Liquids’ new fractionation plant in Geismar. The parties agreed that for all employees on the project, including the various layers of subcontracted direct, borrowed, special, or statutory employees covered by the Louisiana Workers’ Compensation Act, the construction was an integral and essential part of Gulf Liquids’ ability to generate its products and services pursuant to LSA-R.S. 23:1061(A)(1). The contract further specified that Gulf Liquids was a statutory employer for the purposes of LSA-R.S. 23:1061(A)(3). Jackson, 897 So.2d at 685.

Ronald Jackson, who was employed directly by one of the many subcontractors Non the project, was injured while working at the construction site. Jackson and his wife then filed a suit for damages against various defendants, including Gulf Liquids. In response, Gulf Liquids filed a motion for summary judgment, contending that it was entitled to tort immunity as a statutory employer. The district court agreed and signed a judgment dismissing the plaintiffs’ claims against Gulf Liquids. The plaintiffs appealed, contending that construction of the new facility was not a part of Gulf Liquids’ trade, business, or occupation. Jackson, 897 So.2d at 685.

This' court determined that Jackson had failed to rebut the presumption established by LSA-R.S. 23:1061(A)(3), because he had not demonstrated that the new plant was not necessary to Gulf Liquids’ ability to generate its products. Therefore, the court affirmed the district court’s judgment, finding that Gulf Liquids was a statutory employer, because construction of the new plant was part of Gulf Liquids’ trade, business, or occupation. Jackson, 897 So.2d at 689.

In reaching this conclusion, this court reviewed the history of the statutory employer doctrine and stated:

Based on the 1989 and 1997 legislative amendments made in response to the supreme court’s restrictive interpretations of the statutory employer defense, and the legislature’s stated intention to overrule Berry and Kirkland, we find that the legislature has specifically rejected a restrictive analysis in favor of a more liberal interpretation of the words “integral” and “essential.”

Jackson, 897 So.2d at 688-89.

Having determined that the 1997 amendments to LSA-R.S. 23:1061 mandated a more liberal interpretation of the statutory employer relationship, the court’s inquiry shifted to whether or not construction of a new building or facility would qualify as an integral part of the principal’s trade, business, or occupation under this liberal interpretation. After acknowledging that new construction was found not to be a part of the principal’s work in most pre-1997 cases, the court noted that the words of the statute had changed since those cases had been decided. In particular, LSA-R.S. 23:1061(A)(1) now specifies that “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.” The court 112applied that definition to the facts of the case and found that a building or facility was certainly essential to Gulf Liquids’ ability to generate its goods, products, or services within the meaning of the statute. The court acknowledged that this interpretation was more expansive than the original “integral relationship” test established by Thibodaux; however, the court determined that such an interpretation was supported by the precise definitional wording chosen by the legislature, as well as by the legislature’s obvious intent to overrule the Berry and Kirkland tests. Jackson, 897 So.2d at 689. See also Applegarth v. Transamerican Ref. Corp., 00-1547 (La.App. 5th Cir.2/28/01), 781 So.2d 804, writ denied, 01-0834 (La.5/11/01), 792 So.2d 738 (contractor’s work in refurbishing refinery by constructing a retaining wall around the oil tanks and laying cement forms for the installation of pipe racks to transport oil and other products through the refinery was essential to the ability of the refinery to generate its goods, products, or services); Trent v. PPG Indus., Inc., 03-1068 (La.App. 3rd Cir.2/4/04), 865 So.2d 1041 (construction of the foundation and structural steel for a pipeline was essential to the ability of the project owner to generate its goods, products, or services, such that the project owner was the statutory employer of the construction worker).

DISCUSSION

The record demonstrates that Rubicon is a chemical manufacturer and is not in the construction business. Spartan, on the other hand, was incorporated specifically for the purpose of providing construction work for chemical plants. Spartan contracted to provide minor construction work at Rubicon’s MDI facility, including the repair or replacement of the facility’s curbs, pump bases, and small vessel supports. Rubicon’s maintenance division would inspect the facility’s concrete structures several times a month and determine what structures needed repair or replacement.

At the time of his injury, Everett was breaking up the concrete of the support pedestals surrounding the amine brine receiver. Thomas C. Evins, Rubicon’s maintenance manager, testified by deposition that a properly supported amine brine receiver is necessary to collect and hold the waste chemicals generated in the production of MDI until they can be disposed of properly. Without such a receiver, Rubicon would be unable to produce its chemicals safely or properly.

11sThe written contract between Rubicon and Spartan recognizes Rubicon as the statutory employer of Spartan’s employees. Therefore, pursuant to LSA-R.S. 23:1061(A)(3), Rubicon was entitled to a rebuttable presumption that it was Everett’s statutory employer. The burden then shifted to Everett 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 Rubicon’s ability to generate its goods, products, or services.

Everett contends that summary judgment was inappropriate, because the district court erroneously interpreted and applied the test for statutory employer status in this matter. Specifically, Everett contends that the 1997 amendment simply restores the Thibodaux “integral relationship” test as it was refined and restricted by the jurisprudence in the pre-Berry era. In support of this argument, Everett places particular emphasis on the Thompson, Benson, Lewis, and Rowe line of cases decided in the ten years immediately preceding Berry.

In essence, Everett is raising the same argument the supreme court relied on in Berry and Kirkland in an effort to establish and maintain a more restrictive interpretation of the statutory employer doctrine defense. In Berry, the supreme court relied on the jurisprudence narrowing the “integral relationship” test in order to formally reject that test and establish a more restrictive, three-tiered analysis. See Berry, 488 So.2d at 938. When the legislature amended LSA-R.S. 23:1061 in response to Berry, the supreme court in Kirkland attempted to salvage the validity of the restrictive interpretation by specifically finding that the 1989 amendment had not intended to |uoverrule the jurisprudence decided in the ten years immediately preceding Berry. The Kirkland court then established a “totality of the circumstances” analysis based primarily on guidelines culled from this pre-Berry jurisprudence. See Kirkland, 681 So.2d at 336-37.

In response to Kirkland, the legislature again amended LSA-R.S. 23:1061; however, this time, the legislature specifically noted its intention to overrule Berry and Kirkland. Now, Everett asks this court to find that the 1997 amendment only overrules Berry and Kirkland, without affecting the jurisprudence upon which those cases were based. Considering the interplay between the legislature and the supreme court since Berry, there can be no doubt that the legislature intended to reject the restrictive interpretation of the statutory employer doctrine defense found in the pre-Rem/ jurisprudence in favor of a more liberal interpretation. See Jack son, 897 So.2d at 688-89. Therefore, Everett’s argument that the 1997 amendment merely restores the state of the law to its pr e-Berry status is untenable.

The legislature further indicated its intent to break from the restrictive interpretation found in the jurisprudence by providing a definition for what work is to be considered a part of the “principal’s trade, business, or occupation” for the first time, rather than simply relying on the various interpretations provided by the jurisprudence. In addition, the legislature has now shifted the burden of proof to the employee to rebut the presumption of a statutory employer relationship where a written contract recognizes such a relationship, and the statute specifies the burden the employee must meet in order to rebut the presumption.

In an effort to rebut the presumption, Everett relies on pr e-Berry jurisprudence that attempted to define what constituted the “principal’s trade, business, or occupation” when there was no statutory definition on which to rely. Everett attempts to conform his argument to the tests established by pr e-Berry jurisprudence, characterizing the work performed by Spartan as non-routine, extraordinary construction work. However, Everett has not offered any evidence to rebut the presumption in the manner prescribed by the statute. Specifically, Everett has not provided any evidence tending to demonstrate that a properly supported amine' brine 11 ¿receiver is not essential to Rubicon’s ability to generate its chemicals. Therefore, we find that Everett has failed to overcome the presumption conferred by LSA-R.S. 23:1061(A)(3), and accordingly, we affirm the judgment of the district court, granting summary judgment in favor of Rubicon, Inc. All costs of this appeal are assessed to the plaintiff, Ray Don Everett.

AFFIRMED.

      . In addition to naming Rubicon as a defendant, Everett also filed suit against Huntsman Chemical Corporation, the alleged parent corporation of Rubicon. Huntsman was dismissed from the proceedings and is not involved in this appeal.

      . The court quoted the relevant statutes (1914 La. Acts, No. 20, as amended) as providing, in pertinent part:
      Section 6: That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contract of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that 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 act, 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.

      Section 34: The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employee....

        Thibodaux, 49 So.2d at 853.

      . The 1976 version of LSA-R.S. 23:1061 provided:
      Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal 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 the 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.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to die employee or his dependent, and shall have a cause of action therefor.

      . The current version of LSA-R.S. 23:1032 retains the same definition of principal. See LSA-R.S. 23:1032(A)(2).

      . Justices Kimball and Victory dissented, stating that they believed the legislature had clearly intended to overrule Berry and return to the more liberal "integral relationship" test of Thibodaux. According to Justice Kimball, any other interpretation would render the 1989 amendment meaningless. Justice Marcus subsequently joined in the dissent after the denial of an application for rehearing.

      . The use of the expression “legislatively overrule” perhaps clouds the issue. To say that a judicial decision was "legislatively overruled” is a descriptive expression for the legislature changing the law as previously interpreted by the court. St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 819 (La.1992).

      . The contract between Rubicon (as Owner) and Spartan (as Contractor) contained the following clause:
      This Agreement recognizes that Owner shall be considered the statutory employer of Contractor's employees and its subcontractors who provide work or services under this Agreement in accordance with Louisiana R.S. 23:1031 or R.S. 23:1061. Thus Owner is to be granted the exclusive remedy protection of Louisiana [R.S.] 23:1032 and it shall be liable to pay compensation benefits if the immediate employer, Contractor or its subcontractors as applicable, is unable to meet their obligation under the Louisiana Workers' Compensation statute for work or service that is performed under this Agreement. The parties agree that the recognition of the Statutory Employer status is made pursuant to R.S. 23:1061 of the Louisiana Workers’ Compensation Statute and that Owner is not the actual employer of any of the employees of Contractor or any of its subcontractors. Further, that Owner has no control or involvement in the hiring, firing, or direct supervision or direction of any such employees. The Work to be performed under this Agreement is an integral part of and essential to the ability of the Owner to generate its goods, products or services.


author: McDonald, j.

text:
    Verna Veronica BYRD v. DSM ELASTOMERS AMERICAS and LIBERTY MUTUAL INSURANCE COMPANY.
    No. 2005 CA 1191.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.
    Rehearing Denied Aug. 11, 2006.

      Johnnie A. Jones, Sr., Baton Rouge, Counsel for Plaintiff/Appellee Verna Veronica Byrd.
    Patrick F. Robinson, Baton Rouge, Counsel for Defendants/Appellants DSM Elastomers Americas and Liberty Mutual Insurance Company.
    Before: PARRO, McDONALD and HUGHES, JJ.
   McDonald, j.

| ¡¡Verna Veronica Byrd worked at DSM Elastomers Americas (DSM) as an assistant operator for $18.00 an hour. On May 22, 2002, as she went to clean excess rubber from the scale doors, the doors suddenly closed, catching her left hand, three fingers and her forearm. She was treated by numerous physicians and underwent several months of physical therapy.

Thereafter, she filed a disputed claim for compensation, asserting that wage benefits were terminated or reduced on March 18, 2003, and that her disability status was “restricted duties.” DSM and Liberty Mutual Insurance Company (Liberty Mutual), DSM’s workers’ compensation insurer, answered the claim, admitting that Ms. Byrd sustained an injury on or about May 22, 2002, she was an employee of DSM at the time of the injury, and she was performing services arising out of and in the course of her employment at the time of her injury. DSM and Liberty Mutual asserted that they had paid workers’ compensation benefits to or on behalf of Ms. Byrd in the amount of $3,649.70 in indemnity benefits and $10,913.49 in medical expenses and that Ms. Byrd had received or was receiving all the benefits to which she was entitled by law. Thus, they denied liability for additional benefits. Alternatively, and only in the event that the defendants were held liable for additional compensation, the defendants asserted any and all rights to reduce benefits and medical expenses; any right to a credit for medical expenses and/or for wages earned by the claimant or which the claimant was capable of earning; any rights to have benefits forfeited; and any rights to claim reimbursement for or an offset against any compensation benefits for which they were held liable, to be paid from any settlement | ¡¡proceeds and/or proceeds pursuant to a judgment that Ms. Byrd might receive from a third party. The parties entered a stipulation prior to trial that the issues contested were the nature and extent of Ms. Byrd’s disability and her entitlement to indemnity benefits, penalties and attorney fees. There was no claim for medical benefits.

After a hearing, the workers’ compensation judge ruled in favor of Ms. Byrd and against the defendants, awarding supplemental earnings benefits from March 18, 2003, to date of judgment and continuing thereafter, based on an average weekly wage of $818.51, and subject to wages she had earned or was able to earn while working at Pelican State Credit Union and Convergís Corporation, together with legal interest and all costs of the proceedings; and awarding attorney fees in the amount of $6,000.00 based on the defendants’ arbitrary and capricious termination of her supplemental earnings benefits.

The defendants are appealing that judgment and make the following assignments of error:

1. The workers’ compensation judge committed manifest error in finding that Ms. Byrd proved she was unable to earn 90% of her pre-injury wage.
2. The workers’ compensation judge committed legal error in applying a presumption of causation to Ms. Byrd’s complaints of ulnar neuropathy, despite the testimony of her treating physician that such are unrelated to her work accident.
3. The [workers’ compensation judge] committed manifest error in finding that the termination of claimant’s supplemental earnings benefits was arbitrary and capricious and awarding attorney fees.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the defendants assert that the workers’ compensation judge committed manifest error in finding that Ms. Byrd proved she was unable to earn ninety percent of her pre-injury wage. In 14order to recover supplemental earnings benefits, a workers’ compensation claimant must prove by a preponderance of the evidence that a work-related injury has resulted in an inability to earn ninety percent or more of her average pre-injury wage. Tynes v. Gaylord Container Corp., 02-0519 (La.App. 1 Cir. 2/14/03), 844 So.2d 80, 86, writ denied, 03-0769 (La.5/9/03), 843 So.2d 404. It is only after such a showing that the burden shifts to the employer to show that the employee is earning less than she is capable of earning. Edmondson v. PCA International, American Studios, 02-1989 (La.App. 1 Cir. 7/2/03), 859 So.2d 31, 33.

The day after the accident, Ms. Byrd saw Dr. J. Simeca at the Occupational Health Clinic complaining of pain in her left hand and fingers. An examination showed swelling in her hand but no fractures. When she returned to Dr. Simeca on May 29, 2002, he diagnosed a contusion of her arm and hand and recommended she see an orthopedist and work at light duty. On May 30, 2002, Ms. Byrd saw Dr. Randall Lea, an orthopedist, who performed numerous tests. X-rays were negative for fractures and soft tissue swelling, and a bone scan was normal.

On June 3, 2002, Ms. Byrd saw another orthopedist, Dr. Robert Brennan, who diagnosed a left hand contusion. He recommended conservative treatment and physical therapy, and continued light duty work. Ms. Byrd began physical therapy on June 5, 2002, and was discharged from physical therapy in September of 2002, with substantial improvements in her strength and a significant decrease in pain. Dr. John Clark conducted EMG/Nerve Conduction studies on January 6, 2003, which yielded normal results. Dr. Brennan found that Ms. Byrd had reached maximum medical improvement (MMI) on January 13, 2003, pending an evaluation by a vascular surgeon. Dr. James W. McNeil performed such an evaluation on | ^February 20, 2003, and found no vascular injury. Dr. Lea released Ms. Byrd to full duty work on February 26, 2003, with no restrictions.

On March 7, 2003, Dr. Brennan found that Ms. Byrd’s hand was unchanged, showed good range of motion and was neurovascularly intact. Dr. Brennan instructed her to return as needed. Ms. Byrd saw Dr. Brennan again on March 17, 2003, and he found no change in her condition. Thereafter, in an April 7, 2003 letter to Ms. Byrd’s lawyer, Dr. Brennan stated, “the patient is at maximum medical improvement and can return to full duty work without limitation.” He further stated that she “will have no permanent impairment from this injury.” Ms. Byrd did not seek any further medical treatment until September 22, 2003, shortly after the hearing in this matter was continued, when she again saw Dr. Brennan, and he again found she could work at full duty.

Ms. Byrd was laid off from DSM on January 1, 2003. She was paid wage benefits from January 2, 2003, until March 18, 2003. She returned to working full time in February of 2003 and began attending graduate school full time at night. Her first job was at Pelican State Credit Union where she did collections work for $11.00 an hour. She quit that job in October of 2003 and moved to Houston to try to get a better job with the federal government. She did not get the government job, but began working for Convergís Corporation full time in December 2003 doing telephone technical support work for $11.06 an hour.

The workers’ compensation judge simply accepted Ms. Byrd’s testimony that she cannot earn ninety percent of her pre-injury wage while she was able to perform household tasks, work full time and attend graduate school full time, and all of her doctors had released her to full-duty work.

LA claimant’s testimony that she is no longer able to return to her pre-injury employment, without more, is insufficient to prove entitlement to supplemental earnings benefits. Cannedy v. Yarborough, 02-0728 (La.App. 1 Cir. 6/27/03), 858 So.2d 504, 507. After a thorough review of the record, we find that the workers’ compensation judge’s determination that Ms. Byrd proved that she could not earn ninety percent or more of her pre-injury wage is manifestly erroneous, and we reverse the award of supplemental earnings benefits.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, the defendants assert that the workers’ compensation judge committed manifest error in finding that the termination of claimant’s supplemental earnings benefits was arbitrary and capricious and erred in awarding attorney fees. The burden of proof is on the claimant to establish that the insurer’s conduct was arbitrary and capricious in discontinuing the payment of benefits. See former La. R.S. 23:1201.2.

Having found that the workers’ compensation judge erred in finding Ms. Byrd was entitled to supplemental earnings benefits, we likewise find that the workers’ compensation judge erred in finding that the defendants were arbitrary and capricious in terminating supplemental earnings benefits, and we reverse the attorney fees award of $6,000.

DECREE

For the foregoing reasons, we reverse the judgment of the Office of Workers’ Compensation Administration and render judgment in favor of 17defendants, DSM and Liberty Mutual. Costs of this appeal are assessed against Ms. Byrd.

REVERSED.

PARpRO, J., concurs.

HUGHES, J., dissents.

      . Ms. Byrd’s claim for disputed compensation asserted that her wage benefits were terminated on January 2, 2003, but at trial the parties stipulated that they were actually terminated on March 18, 2003.

      . We pretermit discussion of assignment of error number 2 in light of the conclusion reached in assignment of error number 1.

      . Acts 2003, No. 1204 § 2 repealed La. R.S. 23:1201.2, which related to discontinuance of payment and allowance of attorney fees for discontinuance. See, now, La. R.S. 23:1201(F), (I), and (J).


author: McCLENDON, J.

text:
    PELTS & SKINS, L.L.C. v. The LOUISIANA DEPARTMENT OF WILDLIFE AND Fisheries.
    No. 2005 CA 0952.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2006.

      Nancy Scott Degan, Daniel S. Terrell, Covington, Counsel for Plaintiff/Appellant Pelts & Skins, L.L.C.
    Charles C. Foti, Jr., Attorney General, Terry Hessick, Karen Godwin, Asst. Attorney General, Baton Rouge, Counsel for Defendant/Appellee Louisiana Department of Wildlife and Fisheries.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

| Jn • this appeal, the plaintiff-appellant, Pelts & Skins, L.L.C. (the company), assigns error to the trial court’s maintenance of a peremptory exception raising the objection of no cause of action in favor of the defendant-appellee, the Louisiana Department of Wildlife and Fisheries (the department). To determine whether the trial court erred in its grant of the department’s exception, we must consider whether the company stated a cause of action for a constitutional challenge to two Louisiana statutes, LSA-R.S. 56:253 C(2)(a) and 56:256. After reviewing the petition and the statutes, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

In this case, the company is a Louisiana alligator farming business with a principal place of business in St. Tammany Parish. On August 12, 2004, the company filed a petition for declaratory judgment, injunc-tive relief, and damages. In its petition, the company alleged that the department collected tag fees on alligators and alligator skins shipped out of state, pursuant to LSA-R.S. 56:253 C(2)(a), and, under LSA-R.S. 56:256, a severance tax on alligator skins shipped out of the state. Essentially, the company asserted that the two statutes in question violated both the Commerce Clause and Export-Import Clause of the United States Constitution, and that the department also violated various statutory requirements governing the use of the monies collected.

Finding that the statutes were constitutional, the court granted the department’s exception of no cause of action and dismissed the company’s constitutional claims. The trial court certified the judgment as final. The company appealed and assigned error to the trial court’s grant of the ^exception and failure to find that the company had stated a cause of action challenging the statutes as unconstitutional.

PROCEDURE FOR PARTIAL JUDGMENTS

Initially, we note a procedural defect. Although the company’s suit attacked the statutes as unconstitutional and also asserted that the department does not follow the statutory requirements, the department’s exception of no cause of action was directed only at the constitutional challenges. Thus, the trial court’s judgment, dismissing only some of the company’s claims, did not end the litigation. Such a judgment is a partial judgment subject to the provisions of LSA-C.C.P. art. 1915 B.

For the purpose of an immediate appeal from a partial judgment, the trial court must find “no just reason for delay” and certify the judgment as a final judgment. LSA-C.C.P. art. 1915 B(l). When the trial court fails to state its reasons, we shall conduct a de novo review to determine whether a reasonable basis existed for the certification of finality, utilizing the non-exclusive factors outlined in Motorola, Inc. v. Associated Indemnity Corporation, 2002-1351, pp. 16-17 (La.App. 1 Cir.10/22/03), 867 So.2d 723, 732.

In this case, although the trial court certified the judgment as final, it did not express a basis for its action. Therefore, before we address the merits, we must first determine whether the trial court erred in designating the judgment as final.

Under the particular facts here, if we determine that the exception of no cause of action was improvidently granted, the issue of constitutionality would again be before the trial court. If the district court subsequently found one or both of the statutes unconstitutional, such a judgment would end the litigation or a substantial part of it. Thus, based on the relationship between j4the adjudicated constitutional challenges and the unadju-dicated statutory claims, and the possibility that all the claims could be mooted by the future action of the district court on the constitutional questions, we find that the judgment was properly certified as a final judgment. See Motorola, 2002-1351 at pp. 16-17, 867 So.2d at 732.

CHALLENGED LOUISIANA STATUTES

At issue is LSA-R.S. 56:253 C(2)(a), which provides that:

Every resident fur dealer, alligator hunter, alligator farmer, taxidermist, nonresident fur dealer, or nonresident alligator hunter, before shipping alligators or raw alligator skins out of state, or before tanning or using for taxidermy of raw alligator skins within the state, shall pay to the department an alligator shipping label fee for each alligator so shipped and shall pay an alligator hide tag fee for each raw alligator skin to be so shipped, used for taxidermy, or tanned. The alligator shipping label fee and the alligator hide tag fee shall be collected by the department from the fur dealer, taxidermist, alligator hunter, alligator farmer, nonresident fur dealer, or nonresident alligator hunter who is shipping alligators or raw alligator skins, or who intends to tan, or use for taxidermy, the raw alligator skins. The department shall collect such fees at the time of shipment, using for taxidermy, or tanning, and no alligator shipping label or out-of-state shipping tag shall be issued by the department for a shipment before payment of the appropriate fee is received by the department.
The severance tax in question, LSA-R.S. 56:256, in part provides that:
There is levied a severance tax on all skins or hides taken from any furbear-ing animals or alligators, within the state, payable to the state through the department by the fur trapper, alligator hunter, or alligator farmer shipping or taking his own catch out of state, or by the dealer, shipping skins or hides out of state or tanning fur pelts or alligator skins in the state ....

BASIS FOR CONSTITUTIONAL CHALLENGES

The United States Congress received from the people the power “[t]o regulate Commerce with foreign Nations, and among the several States .... ” U.S. Const, art. I, § 8, cl. 3. This power touches “all state taxation and regulation of interstate and foreign commerce .... ” Department of 5Revenue, State of Washington v. Association of Washington Stevedoring Companies, 435 U.S. 734, 751, 98 S.Ct. 1388, 1400, 55 L.Ed.2d 682 (1978). If a statute on its face clearly discriminates against interstate or foreign commerce, the statute may be held per se invalid under the Commerce Clause. Crescent Towing & Salvage Co., Inc. v. Ormet Corporation, 97-1531, p. 5 (La.9/9/98), 720 So.2d 628, 631 (and cases cited therein); cert. denied, 525 U.S. 1142, 119 S.Ct. 1035, 143 L.Ed.2d 43 (1999). In more ambiguous cases, the constitutionality under the Commerce Clause of the statutes in question “depends upon the practical effect of the exaction.” Department of Revenue, State of Washington, 435 U.S. at 750, 98 S.Ct. at 1399.

[Interstate commerce must bear its fair share of the state tax burden. The Court repeatedly has sustained taxes that are applied to activity with a substantial nexus with the State, that are fairly apportioned, that do not discriminate against interstate commerce, and that are fairly related to the services provided by the State.

Department of Revenue, State of Washington, 435 U.S. at 750, 98 S.Ct. at 1399. (emphasis added). This inquiry or analysis, which originated in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), may be fact intensive. Department of Revenue, State of Washington, 435 U.S. at 747, 98 S.Ct. at 1398. Under the Commerce Clause, which is more generally applied to commerce between states, if the “burden on interstate commerce outweigh[s] the State’s interest,” the tax will be invalidated. Department of Revenue, State of Washington, 435 U.S. at 747, 98 S.Ct. at 1398.

The United States Constitution, in Article I, § 10, cl. 2, provides that “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for ^executing its inspection Laws ....” In Michelin Tire Corporation v. W.L. Wages, 423 U.S. 276, 279, 96 S.Ct. 535, 537-38, 46 L.Ed.2d 495 (1976), the Unites States Supreme Court moved away from an earlier review of foreign commerce based on whether the goods to be taxed could be defined as imports or exports. Instead, the Court focused on the nature of the tax under review and the policy underlying the prohibition contained in the Export-Import Clause.

First, the Federal Government must speak with one voice when regulating commercial relations with foreign governments. For example, tariffs which might affect foreign relations could not be implemented by the States consistently with that exclusive power. Second, import revenues were to be the major source of revenue for the Federal Government and should not be diverted to the States. Finally, harmony among the States might be disturbed unless seaboard States, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through then-ports to the other States not situated as favorably geographically.

Louisiana Land and Exploration Company v. Pilot Petroleum Corporation, 900 F.2d 816, 819 (5th Cir.), cert. denied, 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 207 (1990).

However, a per se violation of the Export-Import Clause may be found if the goods themselves are taxed after they have entered the stream of exportation or importation. See United States v. International Business Machines Corporation, 517 U.S. 843, 861-62, 116 S.Ct. 1793, 1803-04, 135 L.Ed.2d 124 (1996); see also Louisiana Land and Exploration Company, 900 F.2d at 817 & 820-21; Virginia Indonesia Company v. Harris County Appraisal Dist., 910 S.W.2d 905, 915 (Tex.1995), cert. denied, Harris County Appraisal Dist. v. Virginia Indonesia Co., 518 U.S. 1004, 116 S.Ct. 2523, 135 L.Ed.2d 1048 (1996).

7The quintessential requirement underlying both Clauses and the applicable jurisprudence seems to be fairness. The “balance tips against the tax only when it unfairly burdens commerce by exacting more than a just share from the interstate activity.” Department of Revenue, State of Washington, 435 U.S. at 748, 98 S.Ct. at 1398. For example, if a tax is levied on the goods themselves while in transit, the requisite connection between the state, the thing taxed, and services provided is broken. When the thing actually being taxed is the importation or exportation of the goods, the tax is prohibited. Conversely, if services helpful to a business are rendered by a state, and a proportionate reimbursement is sought from all the beneficiaries, the tax will usually pass constitutional muster. The same is true of the Michelin inquiry. Such a grounded, fair, and related tax would not equate to a protective tariff, or an impost or duty, arising only from the goods’ or activity’s place of origin. Such a levy would not deprive the United States of revenues to which it alone was entitled, but rather serve only as a recompense to the state for monies actually expended to benefit the taxpayer. See Michelin, 423 U.S. at 286-89, 96 S.Ct. at 541-42. Nor would other states be disturbed by a tax that, by definition, was not imposed on goods “merely flowing” through a taxing state with no other connections to the goods or activity. Louisiana Land and Exploration Company, 900 F.2d at 819.

NO CAUSE OF ACTION

The petition must set forth the material facts on which the cause of action is based. However, the conclusions of law are not conceded and are decided by the court after reference to the law in question. Lambert v. Riverboat Gaming Enforcement Division, 96-1856, p. 4 (La.App. 1 Cir. 812/29/97), 706 So.2d 172, 175, writ denied, 98-0297 (La.3/20/98), 715 So.2d 1221.

The peremptory exception raising the objection of no cause of action is a procedural device used to test the legal sufficiency of the petition. Unlike a motion for summary judgment, in making the determination on an exception of no cause of action, all well pleaded allegations of fact in the petition must be accepted as true, and no reference can be made to extraneous supportive or controverting evidence. The court must then determine whether the law affords any relief to the claimant if those factual allegations are proven at trial. If the allegations of the petition state a cause of action as to any part of the demand, the exception must be overruled. A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692, p. 5 (La.App. 1 Cir. 9/24/99), 754 So.2d 1057, 1060. The question therefore is whether, in the light most favorable to plaintiff, with every doubt resolved in his favor, the petition states any valid cause of action for relief under any evidence admissible under the pleadings. Home Distribution, Inc., 98-1692 at p. 5, 754 So.2d at 1060; see Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La.1993). A claim of vagueness or uncertainty directed at the factual allegations is subject to an exception raising the objection of vagueness, not the exception of no cause of action. Lyons v. Landry, 293 So.2d 674, 675 (La.App. 1 Cir.1974). The burden of demonstrating that no cause of action has been stated rests on the exceptor. In reviewing a trial court’s sustaining an exception of no cause of action, the reviewing court conducts a de novo review. Home Distribution, Inc., 98-1692 at p. 5, 754 So.2d at 1060.

| ..APPLICATION OF THE LEGAL PRECEPTS TO THE FACTS

In its petition, the company specifically alleges that the fees and severance tax discriminate against out-of-state shipping, and are thus unconstitutional under both the Commerce and Export-Import Clauses. Although the language of the statutes on first reading seems fair, the time and method of collection of the fee or severance tax create an anomaly. For example, LSA-R.S. 56:253 C(2)(a) requires a fee to be collected on all raw skins shipped out of state. However, the fee is not collected on raw skins kept in the state, unless the raw skin is to be tanned or used in taxidermy. The same disparate treatment occurs in the collection of the LSA-R.S. 56:256 severance tax. The severance tax is levied on “all skins” taken within the state, which appears to be an evenhanded application of a customary severance tax. The problem arises in the next phrase, which provides that the tax is to be collected on all skins shipped out of state, but collected in-state only when the skins are to be tanned. Although this alleged discriminatory dichotomy may prove to be a distinction without a difference in real world transactions, especially after evidence is adduced showing how raw skins are preserved for use, we again note that the case is before us only on an exception of no cause of action, and not on a motion for summary judgment or after trial.

Under the Commerce Gl&use/Complete Auto analysis, the failure to tax all raw hides, if proven, could be found to be an unfair apportionment of the tax and a discriminatory burden on interstate commerce. Similarly, under the Michelin analysis, a discriminatory tax could be found to violate the Exporb-Import Clause by singling out exportation and discouraging it in [ina manner inconsistent with federal policy, which could also lead to diminished federal revenues. Thus, we find that the company sufficiently stated at least one basis for its cause of action asserting constitutional challenges.

As another basis for its claims, the company, in paragraph 14 of its petition, directly alleges that the fees and tax are unconstitutionally imposed on the “skins themselves while they are in transit”; a possible per se violation of the Export-Import Clause. See International Business Machines Corporation, 517 U.S. at 861-62, 116 S.Ct. at 1803-04; see also Louisiana Land and Exploration Company, 900 F.2d at 817 & 820-21; Virginia Indonesia Company, 910 S.W.2d at 915. However, we note that paragraph 12 alleges that the state collects the fees and tax when the skins intended for out of state shipping are “segregated from its inventory.”

A review of the pertinent jurisprudence shows that an intention to ship is not enough to place the goods “in transit.” Empresa Siderurgica, S.A. v. County of Merced, California, 337 U.S. 154, 157, 69 S.Ct. 995, 997, 93 L.Ed. 1276 (1949); see Department of Revenue, State of Washington, 435 U.S. at 755, 98 S.Ct. at 1402. To qualify as “in transit,” the goods must have physically entered into “the stream of exportation.” Kosydar v. National Cash Register Co., 417 U.S. 62, 71, 94 S.Ct. 2108, 2114, 40 L.Ed.2d 660 (1974).

While paragraphs 12 and 14 seem to be inconsistent, it may be that the paragraph 14 “in transit” claim is based on an alternate or different factual scenario than the one described in paragraph 12. In search of additional information that may clarify any ambiguity, we look to the statutes for guidance on when the legislature actually intended the tax to be levied or collected.

lnOn this issue, both statutes provide for collection “at the time of shipment.” See LSA-R.S. 56:253 C(2)(a); LSA-R.S. 56:257 B. However, we can find no statute in the applicable section of Louisiana law that explains whether “time of shipment” means at the time the goods are segregated and prepared for out of state shipment, or at the time they are physically shipped, that is, in transit.

Finding that the statutes provide no specific denial of the claims made in the petition that the tax is collected on goods in transit, and regardless of the actual timing process that may be proved by the evidence at a hearing or trial, the petition’s factual allegation that the fees and tax are placed on the “alligator skins themselves while they are in transit,” must be taken as a true alternate assertion when reviewing the exception of no cause of action. In addition, “[e]very reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.” Industrial Companies, Inc. v. Durbin, 2002-0665, p. 7 (La.1/28/03), 837 So.2d 1207, 1213. Certainly, we cannot say that “it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle [it] to relief.” Industrial Companies, Inc., 2002-0665 at p. 7, 837 So.2d at 1213. If the company does prove that fees and taxes are levied or collected on the skins themselves while “in transit,” the exaction may initially qualify as a per se violation of the Import-Export Clause, whether or not the Michelin analysis applies. See International Business Machines Corporation, 517 U.S. at 861-62, 116 S.Ct. at 1803-04; see also Louisiana Land and Exploration Company, 900 F.2d at 817 & 820-21. Under the “stream of export” doctrine, or as a discriminatory burden on interstate commerce, a levy on any goods themselves while in transit could likely be | 1Pfound to have violated the Commerce Clause as well. See Virginia Indonesia Company, 910 S.W.2d at 908, n. 1.

CONCLUSION

For these reasons, we find at least two instances where, based solely on the factual allegations taken as true, analyzed under the wording of the statutes in question and applicable law, the company sufficiently stated a cause of action. Therefore, we find that the trial court erred in granting the exception of no cause of action and dismissing the company’s constitutional challenges. We reverse and remand the case for further proceedings consistent with this opinion. The costs of the appeal, $480.38, are assessed to the appellee, the Louisiana Department of Wildlife and Fisheries.

REVERSED AND REMANDED.

WELCH, J., concurs in result.

      . Although the department argues that taxing hides when tanned covers all alligator hides retained for use in Louisiana, we cannot make such an inference or finding on an exception of no cause of action.

      . Nothing in this opinion is intended to be a finding on the actual merits of this case or a prediction of the likelihood that either party will prevail. The case before us is decided solely on the principles of review on an exception of no cause of action.