author: CHIASSON, Judge.

text:
    Clarence R. FARRELL v. John W. WILBERT, Jr., et al.
    No. 12404.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Dan B. Cornett, Baton Rouge, of counsel for plaintiff-appellant Clarence R. Farrell.
    Allen N. Edwards, Plaquemine, of counsel for defendant-appellee John W. Wilbert, Jr.
    Arthur H. Andrews, Baton Rouge, of counsel for exceptor-appellee Milton B. Gold & Ruth B. Gold d/b/a Gold Foundry & Machine Works.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Plaintiff Clarence R. Farrell appeals the dismissal of his suit against Employers Mutual Liability Insurance Company of Wisconsin (Employers) on an exception of lack of in personam jurisdiction. The plaintiff, a Louisiana resident, alleges in his petition that he suffered severe injuries on June 1, 1976, while attempting to lower a burial vault into a grave located in the Ellis Cemetery near Franklinton, Louisiana. The injury occurred when a part of the device he was using came off and struck him. Farrell sued John W. Wilbert, Jr., F. Anton Wilbert, Michael W. Smith and The Travelers Insurance Company, all of whom plaintiff alleged were domiciled in Louisiana.

By supplemental and amending petition, plaintiff added as defendants, Milton B. Gold, Ruth Gold, d/b/a Gold Foundry and Machine Works, and their insurer, Employers. The defendants, Milton B. Gold, Ruth Gold, d/b/a Gold Foundry and Machine Works, and Employers filed exceptions of lack of jurisdiction in personam. On May 9, 1978, the trial court sustained the exception of lack of jurisdiction in personam as to Milton B. Gold and Ruth Gold, d/b/a Gold Foundry and Machine Works, and dismissed plaintiff’s suit as to them with prejudice. On May 24, 1978, the trial court sustained the exception of lack of jurisdiction in per-sonam as to Employers and dismissed plaintiffs suit as to it with prejudice. Plaintiff took a devolutive appeal only from the judgment which sustained Employers’ exception of lack of in personam jurisdiction.

The action against Milton B. Gold and Ruth Gold, d/b/a Gold Foundry and Machine Works, was brought under the Louisiana Long Arm Statute [La.R.S. 13:3201 through 13:3207]. Plaintiff has not appealed the judgment dismissing his suit as against these defendants. We will not comment on. this judgment except to the extent required to respond to the appellee’s contentions.

The action against Employers was brought under the Louisiana Direct Action Statute [La.R.S. 22:655]. Employers argues that absent jurisdiction over its insured the plaintiff cannot have jurisdiction and/or a right of action against the insurer.

We find that the Louisiana Direct Action Statute is not a legislative grant of jurisdiction over insurance companies, it merely allows claimants a direct right of action against liability insurers when there exists a cause of action against the insured or where the insured would be liable but for an immunity personal to him. Morse v. Hartford Casualty Insurance Company, 301 So.2d 741 (La.App. 3rd Cir. 1974); McKeithen v. M/T Frosta, 435 F.Supp. 572 (D.C.1977). Before a claimant may utilize the direct action procedure, the state must have an independent basis of jurisdiction which satisfies due process requirements.

The question is one of jurisdiction. Employers is a foreign insurer, authorized to do and doing business in Louisiana. Employers was issued a Certificate of Authority to transact business in the State of Louisiana under the provisions of La.R.S. 22:986. Before this certificate can be issued, La.R.S. 22:983(E) requires:

“No certificate of authority to do business in Louisiana shall be issued to a foreign or alien liability insurer until such insurer shall consent to being sued by the injured person or his or her heirs in a direct action as provided in R.S. 22:655, whether the policy of insurance sued upon was written or delivered in the state of Louisiana or not, and whether or not such policy contains a provision forbidding such direct action, provided that the accident or injury occurred within the state of Louisiana. The said foreign or alien insurer shall deliver to the commissioner of insurance as a condition precedent to the issuance of such authority, an instrument evidencing such consent.”
Additionally, La.R.S. 22:985 provides:
“Every foreign or alien insurer shall appoint the secretary of state to be its true and lawful attorney in this state upon whom, or some other person in his office during his absence he may designate, all lawful process in any action or proceeding against such insurer may be served, which shall constitute service on such insurer. Such appointment shall continue in force so long as any contract or other liability of such insurer in this state shall remain outstanding. Whenever such process shall be served upon the secretary of, state he shall forthwith forward a copy of the process by prepaid registered mail to the person designated for the purpose by the insurer.”

In Smith v. Globe Indemnity Co., 243 So.2d 882 (La.App. 1st Cir. 1971), the court found La.R.S. 22:985 sufficiently broad to vest Louisiana courts with jurisdiction in that case. The question in that case was whether Louisiana courts have jurisdiction in a suit by a Louisiana resident against a non-resident workmen’s compensation insurer, on a policy written in another state when the accident and employment occurred in another state. The only contact the insurer had with Louisiana was that it was authorized to do and was doing business in Louisiana.

In Morse v. Hartford Casualty Insurance Company, supra, one - issue was, when a Louisiana resident joint tortfeasor is a named defendant in a tort claim arising from an out of state accident, does Louisiana have sufficient due process “minimum contacts” to find jurisdiction over an insurance company doing business in Louisiana and insuring non-resident defendants with a policy written in another state? In Morse the court found jurisdiction over the insurer but held that there was no right of action under La.R.S. 22:655 since the accident occurred in another state and the insurance policy sued upon was issued in another state. This court in Easterly v. Dynamic Enterprises, Inc., 334 So.2d 467 (La.App. 1st Cir. 1976), writ refused 338 So.2d 288 (La. 1976) approved the finding of jurisdiction over insurers who are qualified to do and doing business in Louisiana but again found no right of action on the part of a Louisiana resident against such an insurer when neither the accident occurred in Louisiana nor was the insurance policy sued upon written or delivered in Louisiana.

For these reasons, we find that Louisiana courts have jurisdiction over Employers.

The next question is, does plaintiff have a right of action against Employers? The provisions of La.R.S. 22:655, in pertinent part, provides:

. . The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art. 42, Code of Civil Procedure. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana. . . (Emphasis added).

In the instant case the injury to the plaintiff occurred in Louisiana. We find that under La.R.S. 22:655 plaintiff has a right of action for his injuries against Employers since (1) there is jurisdiction over Employers, (2) the injury occurred in Louisiana, and (3) plaintiff is allowed to sue the insurer alone by virtue of La.R.S. 22:655.

For these reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings not inconsistent with the views expressed herein.

The defendants-appellees are cast for all costs of this appeal; all other costs are to await the final determination of the action.

REVERSED AND REMANDED.

      . This company is also known as Employers Insurance of Wausau.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Janet Lynn POUNDS v. Richard Miles SCHORI.
    No. 12340.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    Rehearing Denied April 16, 1979.
    Frank P. Simoneaux, Baton Rouge, of counsel for plaintiff-appellee Janet Lynn Pounds.
    Dennis R. Whalen, Baton Rouge, of counsel for defendant-appellant Richard Miles Schori.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This is an appeal by Richard Miles Schori from a judgment of the trial court which dismissed his action en desaveu on a peremptory exception urging the objections of peremption and/or no cause of action.

On June 21, 1977, Schori filed a petition, styled “Petition for Disavowal of Paternity,” seeking to disavow Kristina Pounds (Schori) as his child. The petition alleges that Schori and defendant, Janet Pounds Schori (also referred to as Janet Lynn Pounds), were married on June 10, 1967, and that a child named Kristina was born to the defendant, his wife, on July 22, 1976. Schori also alleges that he did not cohabit with the defendant at a time when she could have conceived the child, and that he believes that the child is not his. Schori further alleges that he filed a petition for separate maintenance and determination of paternity on October 29, 1976, in the State of Oklahoma, which suit for disavowal was subsequently dismissed due to lack of jurisdiction, and that he is entitled to a hearing on the question of paternity under the laws of Louisiana.

An attorney was appointed to represent the minor child. Subsequently, Mrs. Schori filed various exceptions including a peremptory exception urging the objections of per-emption, no cause of action and/or prescription.

Schori opposed these objections, contending that the time limitation for a disavowal action is prescription and that the prescriptive period was interrupted under LSA-R.S. 9:5801 by the suit in Oklahoma combined with service on the defendant. Scho-ri argues that this suit is therefore timely.

The trial court held that the time limitation governing the institution of the disavowal action is peremption rather than prescription, and that the peremptive period and the underlying cause of action had expired prior to the filing of the instant suit. Accordingly, the trial court sustained the peremptory exception and dismissed Scho-ri’s suit.

On appeal Schori urges anew the contentions raised in the trial court, namely: 1) the applicable time limitation is prescription; and 2) the prescriptive period was interrupted by service on the defendant under LSA-R.S. 9:5801.

Preliminarily, we note that at the time the child was born the delay during which an action for disavowal could be brought was fixed by LSA-C.C. art. 191, which was subsequently amended along with other co-dal articles in the section on disavowal by La.Acts 1976, No. 430, sec. 1 (effective October 1, 1976). The substance of article 191 is contained presently in LSA-C.C. art. 189. For the purposes of this suit however, the law prior to the amendment is applicable inasmuch as Act 430 of 1976 affects substantive rights, and its language does not require its retroactive operation or indicate that the Legislature intended for it to be applied other than prospectively. O’Banion v. Allstate Insurance Co., 347 So.2d 878 (La.App. 3rd Cir. 1977); LSA-C.C. art. 8.

LSA-i-C.C. art. 191 provided:

“In all the cases above enumerated, where the presumption of paternity ceases, the husband of the mother, if he intends to dispute the legitimacy of the child, must do it within six months from the birth of the child, if he be in the parish where the child is born, or within six months after his return, if he be absent at that time, or within six months after the discovery of the fraud, if the birth of the child was concealed from him; or he shall be barred from making any objection to the legitimacy of such child.”

We have not been cited nor have we found through our independent research any case in which the instant issue was presented for review. Schori points to two cases, Kuhlman v. Kuhlman, 137 La. 263, 68 So. 604 (1915) and Feltus v. Feltus, 210 So.2d 388 (La.App. 4th Cir. 1968), to support his contention that article 191 is prescription. He notes that the courts employed the term “prescription” in connection with article 191. However, the distinction between peremption and prescription was not at issue in either case, and we do not view either case as persuasive authority for labeling the time limitation as prescription.

The Supreme Court in Succession of Pizzillo, 223 La. 328, 65 So.2d 783, 786 (1953) stated:

“The difference between prescription and peremption is that the former simply bars the remedy whereas, in the latter, time is made of essence of the right granted and a lapse of the statutory period operates as a complete extinguishment of the right. (Citations omitted.) Per-emption admits of no interruption or suspension; performance of the required act must be accomplished within the specified time or else the right of action no longer exists.”

See also Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971).

In Succession of Saloy, 44 La.Ann. 433, 10 So. 872, 875 (1892), it was observed:

“The action en desaveu belongs only to certain persons exactly determined; that is, the husband and his heirs. It belongs neither to the mother nor to her heirs. This action is limited to a fatal delay, and very short, after which it is extinguished by the renunciation, express or tacit, which is made by the husband or his heirs.” (emphasis supplied).

This language indicates clearly that the court considered the time limitation as per-emption. Indeed, the French commentators, in discussing the comparable article in French law (C.N. Article 316), recognized that the delay was not a prescription but rather was a short pre-established delay entailing forfeiture during which the action must be brought or the party is foreclosed from asserting it effectively. See 1 Planiol, Civil Law Treatise, pt. 1, nos. 1451 and 1457 (La.St.L.Inst. transí. 1959) and 2 Planiol, Civil Law Treatise, pt. 1, nos. 704 and 706 (La.St.L.Inst. transí. 1959).

We are convinced that the time limitation of our article 191 is likewise peremption. After the lapse of this delay, the cause of action is extinguished.

The child in the instant case was born on July 22, 1976. There is nothing in the pleadings or record to suggest that the time limitation commenced at any date other than the date of the child’s birth. Consequently the six month peremptive period hád elapséd and the cause of action to disavow the child had extinguished prior to the institution of the instant case on June 21, 1977.

The trial court was correct in sustaining the peremptory exception and dismissing Schori’s suit.

In view of our holding above, we need not and do not reach the question of whether a suit in a court of another state, which lacks jurisdiction, together with service can constitute an interruption of prescription under LSA-R.S. 9:5801.

For the above reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

      . We would nonetheless reach the same result if we were to apply the codal article as amended.

      . Compare McClendon v. State, Department of Corrections, 357 So.2d 1218 (La.App. 1st Cir. 1978) and the prior confusion concerning the same issue in the context of a wrongful death action.

      . The Supreme Court recognized recently in Flowers, Ine. v. Rausch, 364 So.2d 928, 931 (La.1978), that “peremption is a common law term which has crept into our jurisprudence (and) its counterpart in the civil law is really ‘forfeiture.’ ’’


author: ELLIS, Judge: CHIASSON, Judge,

text:
    Norma DUPONT v. The DOCTOR’S HOSPITAL et al.
    No. 12466.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 1, 1979.

      William C. Dupont, Plaquemine, of counsel for plaintiff-appellant Norma Dupont.
    Donald S. Zuber, Baton Rouge, of counsel for defendant-appellee Hospital Affiliates of Baton Rouge, Inc. d/b/a Doctors Memorial Hospital.
    Before ELLIS, CHIASSON and SAR-TAIN, JJ.
   ELLIS, Judge:

Plaintiff, Mrs. Norma Dupont, claims that she was injured on May 23, 1977, by the negligent acts of the employees of the defendant hospital. On May 22,1978, plaintiff wrote to the Commissioner of Insurance of Louisiana, requesting a review of her claim for damages arising therefrom, pursuant to R.S. 40:1299.47. At some time thereafter, plaintiff was notified that the defendant hospital had not qualified as a health care provider as of the date of the injury, and was, therefore, not covered by the Medical Malpractice Act, R.S. 40:1299.41 et seq. This suit was filed on June 2, 1978, and service was had on an employee of defendant on June 7, 1978.

Defendant filed a declinatory exception to the citation and service, and a peremptory exception of prescription. The trial court maintained the exception of prescription, and plaintiff has appealed.

Plaintiff concedes that the suit was filed more than one year after the alleged injury, and would ordinarily be prescribed under the provisions of Articles 3536 and 3537 of the Civil Code and R.S. 9:5628. However, she claims that prescription was interrupted by the writing of the letter to the Commissioner of May 22, 1978.

The Medical Malpractice Act provides for certain limitations on the right of recovery and for the review of claims filed against those covered by the act by a Medical Review Panel. R.S. 40:1299.47(A), provides, in part:

“A. All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided in this Section.
“The filing of the request for review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following the issuance of the opinion by the medical review panel. The request for review of a claim under this Section shall be deemed filed on the date of receipt of the complaint stamped and certified by the commissioner or on the date of mailing of the complaint if mailed to the commissioner by certified or registered mail.
“It shall be the duty of the commissioner of insurance within five days of the receipt of the claim to:
“(1) Confirm to the claimant that the filing has been officially received and whether or not the named defendant or defendants have qualified under this Part.”

It is argued that whether the defendant has qualified for coverage by the act is of no moment insofar as the interruptive effect of filing a claim with the Commissioner is concerned. The contention is without merit.

R.S. 40:1299.41(D) provides:

“D. A health care provider who fails to qualify under this Part is not covered by the provisions of this Part and is subject to liability under the law without regard to the provisions of this Part. If a health care provider does not so qualify, the patient’s remedy will not be affected by the terms and provisions of this Part.”

Interpreting the foregoing provision in the recent case of Everett v. Goldman, 359 So.2d 1256, 1261 (La.1978), the court said:

“The most significant provisions of the act fit generally in the following scheme. A health care provider (and this category includes physicians, hospitals, dentists, registered nurses, practical nurses, pharmacists, optometrists, podiatrists, chiropractors, physical therapists, psychologists, or any officer, employee or agent thereof acting in the course and scope of his or her employment) has the option of qualifying under the act. R.S. 40:1299.-41(A)(1). If he or she does not qualify, that person is not covered by the provisions of the statute and the patient’s remedy is not affected by the terms and provisions of the statute. R.S. 40:1299.-41(D). Thus the patient of a health care provider who has not qualified is no different from any other tort or contract victim, while the patient of a qualified health care provider (one who has qualified under the act) is regulated by the act insofar as malpractice recovery is concerned.”

We therefore hold that filing a claim with the Commissioner of Insurance against a health care provider who is not covered by the Medical Malpractice Act does not interrupt the running of prescription on the claim. Article 3521, Civil Code.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.

CHIASSON, Judge,

dissenting:

The record reveals that appellant filed a claim with the commissioner of insurance pursuant to La.R.S. 40:1299.47. Under the provisions of that statute the commissioner of insurance is required, within five days of the receipt of the claim, to confirm to the claimant that the filing has been officially received and whether or not the named defendant or defendants have qualified under the provisions of La.R.S. 40:1299.41 et seq. The claim must be filed before the notification provisions of the law become effective.

Appellant’s letter was dated May 22, 1978, one day before the running of prescription on her tort claim. By letter dated May 30, 1978 and received June 2, 1978, the commissioner of insurance informed the appellant that the nam'ed defendant, appellee, was not qualified under the provisions of La.R.S. 40:1299.41 et seq. Appellant filed suit the same day this letter was received, June 2, 1978. I believe that appellant timely filed her claim and that the prescriptive period of one year was suspended until the day appellant received notification that the health care provider was not qualified under La.R.S. 40:1299.41 et seq.

For these reasons, I am of the opinion that the exception of prescription should have been overruled.

I therefore respectfully dissent.


text:
    B & L ASSOCIATES, INC. v. James CRUMP.
    No. 12477.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.

      David A. Hamilton, Baton Rouge, for plaintiff-appellant B & L Associates, Inc.
    Billy O. Wilson, Baton Rouge, for defendant-appellee James L. Crump.
    Before COVINGTON, CHIASSON and SARTAIN, JJ.
   CHIASSON, Judge.

B & L Associates, Inc. (B & L), plaintiff-appellant, filed suit against Dr. James L. Crump, appellee, for $686.14 allegedly owed for private investigative services rendered by appellant. B & L offers private investigative services and had entered into a verbal agreement with an agent of the appel-lee to provide surveillance of the appellee’s former wife. Appellee employed B & L for the purpose of attempting to gain evidence to be used against his former wife in a divorce trial. A dispute arose as to the terms .of employment. Judgment was signed on September 7, 1978 in favor of the defendant. From this judgment plaintiff has taken this appeal.

Appellant urgés the following specifications of error:

1. The trial court erred in finding that the witnesses of the defendant were more credible than the witnesses of the plaintiff.
2. The trial court erred in finding that the plaintiff had not proved its case by a preponderance of the evidence.
3. The trial court erred in finding that the plaintiff had breached the original employment agreement.

Recently, in the case of Arceneaux v. Domingue, et al., 365 So.2d 1330, 1978, the Louisiana Supreme Court clarified its test for appellate review of facts which had been given in its decision in Canter v. Koehring Co., 283 So.2d 716 (La.1973). Now the test is two-pronged: First, the appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court and, second, the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous).

With this standard in mind, we now proceed to appellant’s specifications of error.

As to specification of error number one, the trial judge’s reasonable evaluation of the credibility of a witness at trial is based on the witness’ demeanor upon the stand and the manner in which he gives his testimony, as much as on what his testimony contains. The trial judge has had the benefit of observing the witnesses, which we have not. We have only the cold record before us. We have read the record and hold there is a reasonable factual basis for the trial court’s finding that the defendant’s witnesses are more credible. We further hold that the record establishes the trial court’s finding is not clearly wrong. We find that the trial court was fully aware of the prejudice and bias of each witness and took these into consideration in making its decision. We also find that there is nothing in the testimony that demonstrates that the trial judge was clearly wrong in his evaluation of the witnesses’ credibility.

As to specification of error number two, the basic dispute centers on the terms of the employment. Appellant argued that the issue involved a determination of whether a contractual relationship continued from May 7, 1976 through June 21, 1976. Appellant is mistaken. The threshold question of what was agreed to at the initial stage of employment will determine plaintiff’s allegations of what is owed.

There is no dispute that the terms of employment were determined verbally at a meeting of B & L’s president and appellee’s agent. Therefore, the terms of employment are evidenced by the facts established by the testimony of both plaintiff’s and defendant’s witnesses.

Three people attended the meeting at which the terms of employment were discussed: Richard L. Barrios, Jr., president of B & L; Susan Bonin Crump, an employee of the appellee at the time of the agreement and the current Mrs. Crump; and Jo Ann Osborne, who knew both Mr. Barrios and Susan Bonin Crump and was the person who recommended Mr. Barrios as a private investigator to Susan Bonin Crump.

The trial judge in written reasons for judgment made the following findings of fact and conclusions as to what was said at this meeting. We adopt as our own the following portion of his written reasons for judgment:

* * * * * *
“Their versions of what was said at that meeting vary considerably and form the basis of this dispute. Mr. Barrios testified that he agreed to work for a $500.00 advance retainer and work at rates of $25.00 per hour and twenty cents per mile of vehicle expenses together with other expenses and would keep her (Ms. Bonin) informed. He was requested to have no contact with Dr. Crump.
“Ms. Bonin (who was at the time of the trial the new Mrs. Crump) testified that Mr. Barrios agreed to accept $500.00 retainer and go to work; and that he was to let her know before the $500.00 was exhausted whether or not the investigation had been fruitful. He also added, according to Ms. Bonin, that she would probably get a refund.
“Ms. Osborne testified and corroborated the testimony that Barrios said he would charge a $500.00 retainer and that if he saw that his fee would go beyond that amount he would let her (Ms. Bonin) know.
“Subsequently, the word received from Barrios was that the investigation looked good. The next call was to inform her that he needed $750.00. She testified that she thought he meant an additional $250.00, but discovered later in the conversation to her surprise that he meant $750.00 additional, or a total of $1,250.00. “Ms. Bonin reiterated on direct examination that there had been no discussion at Del Lago’s about hourly rates or expenses.
“The Court, having heard the testimony of all three witnesses, believes the witness for defendant to be more credible as to what was said of the arrangement. “Plaintiff has the burden of proving the terms of his employment. In view of the above finding, plaintiff has failed to carry that burden.”

We find from the record that there is a reasonable factual basis for the trial court’s finding that the plaintiff had not proved its case by a preponderance of the evidence and that the record establishes that the trial court’s finding is not clearly wrong.

As to specification of error number three, by finding the defendant’s witnesses more credible than the plaintiff’s witnesses and that plaintiff had failed to establish its case by a preponderance of the evidence, the trial court concluded that the terms of employment were those testified to by the defendant’s witnesses. Those terms of em-. ployment were as follows: appellant agreed to accept a $500.00 retainer and go to work; appellant was to inform Susan Bonin Crump, before the retainer was exhausted, whether the investigation had been fruitful. There was no discussion about hourly rates or expenses. The testimony reveals that appellant was not certain he had told Susan Bonin Crump that the retainer was exhausted or about to be exhausted, nor was he certain, before the retainer was exhausted, whether or not he told her that the investigation had been fruitful. The testimony also reveals that Susan Bonin Crump was not informed as specified in the terms of employment about the fruitfulness of the investigation before the $500.00 retainer was exhausted.

We find from the record a reasonable factual basis for the trial court’s finding that the plaintiff had breached the original employment agreement and that the record establishes the trial court’s finding is not clearly wrong. Additionally, we agree with the trial court’s finding.

For the reasons given, we affirm the decision of the trial court at appellant’s cost.

AFFIRMED.


text:
    G. U. RYBISKI & COMPANY, LTD. v. LOUISIANA COASTAL UNDERWRITERS OF AUDUBON INSURANCE COMPANY.
    No. 12505.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied April 16, 1979.

      Felix Savoie, Jr., Napoleonville, Gordon Konrad, Gretna, for plaintiff-appellee.
    James M. Funderburk, Houma, for defendant-appellant.
    Before LOTTINGER, CHIASSON and SARTAIN, JJ.
   CHIASSON, Judge.

The Louisiana Coastal Underwriters of Audubon Insurance Company, defendant-appellant, had issued a policy to plaintiff-appellee, G. U. Rybiski & Co., Ltd., providing coverage for fire, windstorm and contents loss on a camp at Grand Isle, Louisiana. On or about February 9, 1976, the building and its contents were completely destroyed by fire. There is no dispute between these litigants that the structure and its contents were a total loss within the meaning of the policy.

A proof of loss was submitted on or about May 19, 1976. By letter dated October 8, 1976, the defendant-appellant forwarded a draft payable to the plaintiff-appellee in the amount of $1*7,629.90, noting that the release language was obliterated. On October 26, 1976, the plaintiff-appellee filed suit against defendant-appellant on the policy, praying for $39,376.60, and for penalty, interest and attorney’s fees as provided in La.R.S. 22:658.

The trial court gave judgment for the plaintiff-appellee and this appeal has been taken by defendant-appellant.

For convenience, we have designated the following sequence for appellant’s specifications of error:

1. The trial court erred in its finding as to the insurable interest of the insured, G. U. Rybiski & Co., Ltd.
2. The trial court erred in its application of the provisions, terms and conditions of the contract of insurance as between the parties.
3. The trial court erred in its finding that the insured, G. U. Rybiski & Co., Ltd., and its agent, J. Folse Roy, did not commit fraud or misrepresentation, such as to impair its recovery under the insurance contract.
4. The trial court erred in granting to the plaintiff penalty, interest and attorney’s fees.
5. The trial court erred in the mathematical determination of the amount of judgment.

As to specification of error number one, the major issue in this appeal is the question of the insurable interest of G. U. Rybiski & Co., Ltd., in and to the property in question. The resolution of this issue will assist in answering appellant’s other specifications of error.

The appellant argues that, during the course of their investigation of appellee’s contents loss, they discovered a letter which led them to believe that G. U. Rybiski & Co., Ltd. was not the sole owner of the property in question. The document appellant relies on is reproduced in full, as follows:

“December 17, 1974
“Mr. J. Folse Roy
3320 N. Causeway Blvd.
Metairie, Louisiana 70002
“Dear Folse:
“On February 1,1968, G.U. Rybiski & Co., Ltd. took title to five lots in Grand Isle on which there is a four-plex. The lots being Lots 4, 5, 6, 7 and 8 in Block 3, Grand Beach Subdivision. Said property forms the corner of Oleander Street (Highway # 1) and Lafitte St. We paid $30,000 for this property; $15,000 cash and a mortgage note of $15,000 payable over 10 years at the rate of $166.60 per month, said payment includes principal and interest at the rate of 6% per annum, payable on the unpaid balance.
“G.U. Bybiski & Co., Ltd. paid $15,000 cash which constitutes payment in full
for their one-half interest and you are to pay the mortgage note of $15,000 together with all of the interest which will constitute your payment of one-half of the total cost of this property.
“The purpose of this letter is to acknowledge that although the title is in G.U. Rybiski, Ltd’s name, you are one-half owner of this property and you do owe the complete and entire $15,000 mortgage note dated February 1, 1968 together with any and all interest or cost in connection with this mortgage note.
“In the event of any sale, you would receive one-half of the monies emanating from the sale, less of course, any money still due on the mortgage.
“Hoping this letter is satisfactory, I remain,
“Yours truly,
“G.U. Rybiski Co., Ltd.
“By /S/ Mildred S. Daigle
“Mildred S. Daigle, President”

The appellant characterizes this document as a counter letter between G. U. Rybiski & Co., Ltd. and J. Folse Roy. We find this characterization to be incorrect. There was no evidence that there was a resolution passed by the board of directors of G. U. Rybiski & Co., Ltd. authorizing such an instrument nor was there evidence provided proving that this document was in accordance with the corporation’s authorization or ratification.

The evidence does reveal that G. U. Rybi-ski & Co., Ltd. acquired the property in question by authentic act in February, 1968; that G. U. Rybiski & Co., Ltd. purchased insurance on the property from the appellant; that the insurance had been in effect for about five years prior to the fire; that the policy was in effect at the time of the fire; and that the appellee is the only record title holder of the property.

The record also reveals that Julius W. Daigle was the chief executive officer or manager of G. U. Rybiski & Co., Ltd. at the time the property was purchased. Julius W. Daigle, Jr. now occupies that position and in his testimony he stated that his father had a verbal agreement with Mr. J. Folse Roy relating to the subject property; that after the senior Daigle died, the letter was written in December of 1974 to J. Folse Roy recognizing an obligation by the senior Daigle to J. Folse Roy; and that this letter was written to confirm a moral obligation honoring his father’s verbal agreement.

From the evidence presented we find that the letter/document is some type of personal obligation between Margaret Daigle (the widow of the senior Julius W. Daigle) and J. Folse Roy, and that whatever this obligation may be it is a matter between the parties to the letter and does not legally obligate the G. U. Rybiski & Co., Ltd. The letter does not affect the insurable interest of the G. U. Rybiski & Co., Ltd. in the property which is the subject of this suit.

For these reasons, we find that G. U. Rybiski & Co., Ltd. was the full owner of the premises and its insurable interest in the property is for the whole.

As to specification of error number two, the appellant contends that the letter discussed hereinbefore is an assignment of the insurance policy in contravention of specific contractual provisions. Since we have found that the letter is a personal obligation between Margaret Daigle and J. Folse Roy, it cannot affect the contractual obligations of G. U. Rybiski & Co., Ltd. Therefore, there was no assignment of the insurance policy by the named insured, since the named insured was not a party to the letter which the appellant relies on for this argument.

Appellant’s other argument relating to the proof of loss of the contents is better left to our discussion of the next specification of error.

As to specification of error number three, the appellant argues that the submission of proof of loss of the contents was done in such a manner that it constituted a fraud and misrepresentation sufficient to preclude further payment by the insurer on the policy. The appellant relies on two contractual provisions which are as follows:

“This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”
“Loss, if any, under the household and personal property item shall be adjusted with the insured specifically named and shall be payable to him unless other payee is specifically named hereunder.”

The evidence reveals that there was no fraud or misrepresentation on the part of the named insured in its submission of proof of loss of the contents. The record demonstrates that the insured was attempting to recover all that it was entitled to under the provisions of the policy. When questioned by the insurer as to the exact amount of the loss of contents, the insured reduced its claim, and it was eventually stipulated by both parties that the loss of contents for the named insured was $358.00.

We do not believe because an insured submits a claim which is questioned by the insurer and which is later reduced in amount by the insured, that this action constitutes a fraud or misrepresentation on the part of the insured per se. We find that the named insured, G. U. Rybiski & Co., Ltd., did not attempt a fraud or misrepresentation on the insurer such as to either void the policy or preclude further payment.

As to specification of error number four, plaintiff-appellee sought recovery of penalty, interest and attorney’s fees as provided in La.R.S. 22:658, because appellant had unjustifiably failed to pay within sixty (60) days after the proof of loss was submitted.

La.R.S. 22:658 provides:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.” (Emphasis supplied)

The proof of loss was undated but the testimony reveals it was sent to the insurer by its agent with a report dated May 19, 1976. Estimating a week’s time for this report and proof of loss to be received by the insurer, making the date of receipt May 26, 1976, the insurer had until July 25, 1976 (60 days from the receipt of proof of loss) to honor the proof of loss. A draft was sent to appellant’s attorneys with accompanying letter dated October 8, 1976 for approximately one-half of the claim.

The trial court found that the appellee had not paid the claim timely and was either arbitrary, capricious, or without probable cause to refuse to pay, since he awarded appellee penalty, interest and attorney’s fees. No written reasons for judgment were given by the trial court.

The appellant defends its refusal to pay on the basis of La.R.S. 22:695(E) which provides:

“Liability of the insurer, in the event of total or partial loss, shall not exceed the insurable interest of the insured in the property and nothing herein shall be construed as precluding the insurer from questioning or contesting the insurable interest of the insured." (Emphasis supplied)

We recognize an insurer’s right to question the insured’s insurable interest; however, this statute does not relieve the insurer of his responsibility under La.R.S. 22:658. In reviewing the facts of this case, we find that the trial court was correct in assessing penalty, interest and attorney’s fees as provided by La.R.S. 22:658. The insurer solely relied on its interpretation as to the legal effect of the letter discussed above, and the submission of proof of loss of the contents as its basis for refusing to pay. We believe their reliance was misplaced. The appellant’s main argument was that the mere existence of the letter was sufficient proof that the appellee did not possess an insurable interest in the entire property. We find that the appellant had a sufficient amount of time in which to question and investigate further the insurable interest and that after the sixtieth day had elapsed, it had no proof to substantiate its claim that the insured was without the requisite insurable interest. Thus, appellants were arbitrary, capricious or without probable cause to fail to pay the claim within the time provided by La.R.S. 22:658. Gibsland Supply Co. v. American Employers Ins. Co., 242 So.2d 310 (La.App. 2nd Cir. 1970), writ refused 257 La. 987, 244 So.2d 858 (1971).

As to specification of error number five, on August 1, 1978, the judgment was amended by the trial court and reads as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant, Louisiana Coastal Underwriters of Audubon Insurance Company, pay unto Plaintiff, G. U. Rybiski & Co., Ltd., the sum of $39,376.60, plus 25% of said amount as penalty, and a fee for its attorney in the amount of $4,000.00, plus interest on the aggregate of said sums at the legal rate of seven (7%) per cent per annum, and all costs of court. That the above be subject to a credit of $17,629.90 previously paid by the Defendant.”

Both appellant and appellee have agreed on appeal that their joint stipulation prior to trial should control the amount of judgment awarded. They stipulated the claim was for $35,000.00 for the building and $358.00 for the contents, or a total of $35,-358.00, and this amount is subject to a credit of $17,629.90 previously paid by the defendant.

The trial court’s judgment is amended to conform to the stipulation. Therefore, we award the sum of $35,358.00 to the plaintiff-appellee. Penalty is awarded in the amount of 12% of the total award (12% of $35,358.00). Attorney’s fees are awarded in the amount of $4,000.00. The above amount is subject to a credit of $17,629.90, together with interest thereon at the legal rate of 7% per annum from date of judicial demand until paid.

For these reasons the judgment of the trial court is amended and affirmed at appellant’s cost.

AMENDED AND AFFIRMED.

      . We find that our jurisprudence has applied the 25% penalty specified in La.R.S. 22:658 only on policies insuring motor vehicles and the like against losses due to fire and theft, and therefore a 25% penalty is not applicable in the instant case. Foster v. Western World Ins. Co., 339 So.2d 395 (La.App. 1st Cir. 1976).


author: SARTAIN, Judge.

text:
    Johnny MORRISON, Plaintiff-Appellant, v. H. B. MITCHELL CONSTRUCTION COMPANY and Western Casualty and Surety Company, Defendants-Appellees.
    No. 12506.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    John G. Discon, Badeaux, Discon, Cumberland & Barbier, New Orleans, for plaintiff-appellant.
    Warren M. Schultz, Jr., Carrere & De-negre, New Orleans, for defendants-appel-lees.

      Before LOTTINGER, CHIASSON and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

Johnny Morrison filed suit against his alleged employer, H. B. Mitchell Construction Company (Mitchell Construction), and its workmen’s compensation insurer, Western Casualty and Surety Company, seeking recovery under the Louisiana Workmen’s Compensation Act (R.S. 23:1021, et seq.) for an injury he received while working in Louisiana.

The defendants excepted to the jurisdiction ratione materiae of the court. The judge a quo agreed with defendants and dismissed the suit for lack of jurisdiction over the subject matter. Plaintiff appeals.

Plaintiff in his petition made the following pertinent allegations: (1) plaintiff is a Mississippi resident; (2) Mitchell Construction is a foreign corporation doing business in the state; (3) plaintiff was injured in Louisiana; and (4) the accident occurred on March 29, 1977, while plaintiff was in the course and scope of his employment as a carpenter for Mitchell Construction when he fell from the roof of a house at the work location in Slidell, Louisiana.

At the hearing on the declinatory exception of lack of subject matter jurisdiction, neither plaintiff nor defendants offered any evidence in support of their respective positions. The court, therefore, was restricted to the allegations of the petition, which for purposes of the exception are to be accepted as true. State ex rel. Brenner v. Noe, 186 La. 102, 171 So. 708 (1936).

Although plaintiff’s allegations were the only evidence before the court, the judge a quo in his judgment sustaining the exception of lack of subject matter jurisdiction made the following statement in explanation of his ruling:

“The general rule is that a state workmen’s compensation statute is inapplicable even though the accident occurred within that state, where neither the employee nor the employer resided in the state, where no part of the employer’s business was localized therein, and where the employment therein was only of a temporary character.”

Without expressing an opinion on the validity of the above rule, we note that the record before us reveals no basis on which the court below could have concluded that Mitchell Construction had no business localized in this state or that plaintiff’s work here was temporary. Therefore, these findings of fact must be disregarded. Apparently the judge a quo mistakenly relied upon unproven assertions made in defendants’ brief.

Lack of jurisdiction over the subject matter does not appear on the face of plaintiff’s petition. Therefore, the onus was on the defendants to offer evidence in support of their exception. C.C.P. art. 930. Defendants having failed to do so, the exception to jurisdiction ratione materiae must be overruled.

Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings. All costs relating to this appeal are to be borne by appellees. All other costs are to await a final determination on the merits.

REVERSED AND REMANDED.

      . An injured employee need not be a resident to be entitled to benefits under the Louisiana Workmen’s Compensation Act. E. g., Johnson v. El Dorado Creosoting Co., 71 So.2d 613 (La. App. 2d Cir. 1954). 99 C.J.S. Workmen’s Compensation § 76.


text:
    Brownie Reed HEBERT v. GULF STATES UTILITIES COMPANY and Kelly R. Parrino, d/b/a K. R. Parrino Builders.
    No. 12509.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Vance R. Andrus, Lafayette, for plaintiff-appellant Brownie Reed Hebert.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Gulf States Utilities Co.
    Ben L. Day, Baton Rouge, for defendant-appellee Kelly R. Parrino d/b/a K. R. Parri-no Builders.
    Ben L. Guelfo, Baton Rouge, for interve-nor-appellee Fidelity & Cas. Co. of New York.
    Before CHIASSON, PONDER and SAR-TAIN, JJ.
   CHIASSON, Judge.

Plaintiff, Brownie Reed Hebert, brought this tort action against Gulf States Utilities Company and Kelly R. Parrino, individually as the landowner, and d/b/a K. R. Parrino Builders. On August 1, 1977, plaintiff was employed by Southern Structure, Inc. (Southern), in construction work on property belonging to Parrino. Parrino had contracted with Southern to erect a metal building. Plaintiff was injured when an angle iron he was holding came in contact with a high voltage electrical line causing him to sustain a severe shock, electrical burns, and to fall from the top of the building sustaining further injuries.

Defendant-appellee, Kelly R. Parrino, filed a motion for summary judgment on the basis that plaintiff’s exclusive remedy is workmen’s compensation as provided in La. R.S. 23:1061 and 23:1032. The trial court granted the motion for summary judgment dismissing as defendant, Kelly R. Parrino, individually, and d/b/a K. R. Parrino Builders from plaintiff’s suit.

We must determine whether summary judgment was appropriate in this case. La. C.C.P. art. 966 provides for a summary judgment when no genuine issue exists as to a material fact and the moving party is entitled to judgment as a matter of law. Tbe burden is on the mover to show that there is no dispute regarding facts material to the suit. And since the motion for summary judgment is not a substitute for a trial on the merits, any doubt as to the existence of a material factual issue is to be resolved against the granting of a summary judgment and in favor of a trial on the merits. Wilkinson v. Husser, 154 So.2d 490 (La.App. 1st Cir. 1963), writ refused, 245 La. 60, 156 So.2d 603 (1963); Parker v. South Louisiana Contractors, Inc., 340 So.2d 322 (La.App. 1st Cir. 1976).

The issues in the instant case are whether Parrino has established, sufficient for summary judgment purposes, that (1) the work he contracted with plaintiff’s employer to perform was part of Parrino’s trade, business, or occupation, and (2) Parrino in his capacity as landowner is not liable to plaintiff in tort for the injuries plaintiff sustained.

Appellee argued in the motion for summary judgment that plaintiff’s exclusive remedy lies in workmen’s compensation and not tort, by virtue of the provisions of La. R.S. 23:1061 and 23:1032, which are as follows:

La.R.S. 23:1061 provides:
“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 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.
“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 the employee or his dependent, and shall have a cause of action therefor.” (Emphasis supplied)
La.R.S. 23:1032 provides:
“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 Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations.
“Nothing in this Chapter shall affect the liability of the employer to a fine or penalty under any other statute.”

The affidavits submitted by the appellee show that appellee, d/b/a K. R. Parrino Builders, is a general commercial contractor engaged in general commercial construction work; pursuant to that trade, business, or occupation the mover has contracted for the construction of various works, including the erection of metal buildings of the general type and nature as in the instant case; the building being erected by Southern, on property owned by the affiant, was being built pursuant to a contract between the affiant and Southern; affiant’s own employees actually laid the concrete slab for the metal building; and the metal building under construction was to be utilized by the affiant as a warehouse in connection with the further operation of his trade, business, or occupation.

La.R.S. 23:1061 indicates that a principal is either any person who undertakes to carry out any work which is a part of his trade, business, or occupation; or any person who had contracted to perform work and sublets any portion to another. Appel-lee is not a principal under the second definition since he was not under contract to build the metal building. If appellee is a principal, he must meet the criteria of the first definition to come within the ambit of statutory employer.

Appellee argues that by the construction of this building he is performing work which is a part of his trade, business, or occupation. His rationale is based on three factors: (1) the erection of buildings is his trade, business, or occupation; (2) his own employees poured the slab on which the building would stand; and (3) he will use the building in his trade, business, or occupation.

Appellant argued that a building contractor’s trade, business, or occupation does not necessarily include building buildings for himself; appellee is in the business of building for others to make a profit; and the construction of a building to be used as a warehouse in appellee’s trade, business, or occupation is not appellee’s trade, business, or occupation.

The trial court hinged its decision on one point, the fact that Mr. Parrino had begun the construction of the building with his own employees. Once the slab was poured, Parrino contracted out for the completion of the structure. The trial court reasoned that because Parrino had poured the slab and subcontracted the completion of the building that this was in the nature of appellee’s trade, business, or occupation.

We find there is no genuine issue as to the following material facts: Parrino is a general commercial contractor and constructing buildings in his trade, business, or occupation; the building in the instant case was being erected for use in the appellee’s business; and appellee contracted with Southern to erect the building. We find that under these facts mover was entitled to a summary judgment as a matter of law since he comes within the provisions of La. R.S. 23:1061 and is appellant’s statutory employer. Under the Louisiana Workmen’s Compensation Act , specifically under La. R.S. 23:1032, appellant’s exclusive remedy against appellee is workmen’s compensation.

Plaintiff-appellant has sued Mr. Par-rino as the owner of the land on which the building was being erected. The appellant has pleaded that as owner the defendant-appellee committed acts or omissions which caused or contributed to the appellant’s injuries and that as owner, appellee is liable, notwithstanding any immunity he enjoys under the Act. Under this argument, appellant asserts that, although appellee may be immune from tort suit in his capacity as statutory employer, appellee is liable in tort suit in his capacity as landowner. This concept is known as the dual capacity doctrine. Larson, The Law of Workmen’s Compensation, Section 72.80 at page 14-112, et seq., and the cases cited therein.

Appellee’s basic argument is that by virtue of the Act, all of the injuries incurred by appellant occurred such as to place appellant’s exclusive remedy within the provisions of the Act. The thrust of appellee’s argument is that there was no separate duty owed to plaintiff-appellant by the ap-pellee as landowner, and therefore, the dual capacity doctrine is inapplicable. Both counsel concede there are no decisions on this question.

As we perceive the issue, the question involved can be stated as follows:

When an employee of a statutory employer is injured in the course and scope of his employment on property owned by the statutory employer, and the injury may be wholly or partly caused by or aggravated by the actions or omissions of the landowner-statutory employer as a result of a breach of duty owed to the employee/person, may the employee sue the landowner-statutory employer in tort or is the employee’s exclusive remedy in workmen’s compensation?

Appellant’s argument is twofold: Appel-lee, as landowner, chose the location for the erection of the building, failed to request the power lines involved be de-energized, and failed to warn the petitioner of the danger of the power lines. Appellee admits he is the landowner and that he chose the site for the building but again argues that by virtue of La.R.S. 23:1061, appellant’s exclusive remedy is under workmen’s compensation.

La.R.S. 23:1101 gives an injured employee a cause and right of action against a third person who has a legal liability to that employee.

La.R.S. 23:1101 provides as follows:
“When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury. “Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.”

It is apparent that if the landowner in the instant case were another person, a third person who violated legal obligations to the employee, that the employee could sue the third person in tort. Is the landowner to be held liable in tort for breach of legal obligations when he is also immune from tort actions because he is also the statutory employer of the employee? We find he cannot. We have reviewed extensively the dual capacity doctrine and find it is inapplicable. Even if the doctrine were viable in Louisiana, the allegations of fault against the landowner are really failure to furnish employee a safe place to work.

We believe the adoption of the dual capacity doctrine in Louisiana should be made by the Legislature and not the Judiciary. We find the Legislature has already expressed strong policy considerations in formulating the workmen’s compensation laws. We believe an abrogation of these policy considerations is best left to the legislative branch of government.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Hereafter referred to as the Act.


text:
    Sol KAPLAN et al. v. UNIVERSITY LAKE CORPORATION et al.
    No. 12511.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.

      Ashton L. Stewart, Baton Rouge, for plaintiff-appellee Sol Kaplan, et al.
    Floyd J. Falcon, Jr., Baton Rouge, William P. Stahl, New Orleans, for defendant-appellant University Lake Corp., et al.
    Before CHIASSON, BAILES and SAR-TAIN, JJ.
   SARTAIN, Judge.

This appeal arises from the judgment of the trial court rendered adverse to appellant, Guaranty Savings Assurance Company. The other two defendants, University Lake Corporation, a domestic corporation, and International Speedways, Inc., a North Carolina corporation, against whom judgment by default was confirmed, have not appealed. The judgments rendered against the two latter named parties are now definitive.

Our perusal of the record, the authorities relied on by the trial court and its reasons for judgment convinces us that the judgment appealed is correct, and accordingly, the judgment is affirmed.

We adopt as our own the well reasoned written opinion of the trial judge and quote it in full, as follows:

“This is an action to enforce a mortgage by ordinary process.
“The plaintiff is the executor of the Succession of Seymour Weiss.
“The defendants are three corporations, namely:
(1) University Lake Corporation (Lake), a Louisiana business corporation which entered into a loan transaction with the American Bank and Trust Company of Baton Rouge on October 22, 1963. The loan in question was secured by a collateral mortgage on property described in detail in P-1.
(2) International Speedways, Inc. (Speedways), a North Carolina business corporation which acquired ownership of said property burdened with said collateral mortgage on December 29, 1970, from Lake’s successor in title.
(3) Guaranty Savings Assurance Company (GSA), a Louisiana business corporation which acquired the property from Speedways on June 15, 1971, ‘assuming, binding, and obligating itself, its successors and assigns to pay all mortgages, judgments, and valid liens now extant against the property-’
“Plaintiff seeks a money judgment against all three corporate defendants, in solido, for $132,000.00 plus 6% interest, subject to credits for interest payments made, plus 10% attorney’s fees. Plaintiff also asks that the mortgage be recognized and maintained against the property.
“Service of process was made on Lake’s designated agent, P. D. V. de LaBarre on November 25, 1974. Lake filed an answer on December 10, 1974, appearing through ‘M. R. Fletcher, President in Proper Person.’ Lake was not represented in the case; its address is not known to the court, and no further appearance has been made on its behalf.
“Speedways was served under the Long Arm Statute. It made no appearance and a preliminary default was entered against it. The evidence on trial was offered by plaintiff in confirmation of said default. Under the Long Arm Statute, any judgment against Speedways will be ‘in rem.’
“The principal dispute is between the plaintiff and GSA, the present record owner of said property.
“PACTS
“Lake owned a 15.19-acre tract of land in East Baton Rouge Parish and wanted to develop it into a residential subdivision. Its plan of development called for eighteen equal-sized lots fronting on a single street and backing up to two man-made lakes. It applied on September 26, 1963, to the American Bank for a loan of $144,000.00, representing that it owned eighteen lots in Twin Lake Subdivision and had a contract for construction of all of the offsite improvements, including streets, lakes, water and sewerage system.
“The loan was consummated on October 22, 1963. Pursuant thereto, a $144,000.00 ‘hand note’ was executed with Lake as Maker. The hand note was secured by the pledge of a $144,000.00 note which was par-aphed ‘Ne Varietur’ with an act of collateral mortgage on said tract (P-1).
“A ‘Pledge of Proceeds of Contracts’ was also executed covering the eighteen contracts to purchase the lots of the proposed Twin Lake Subdivision. The parties disagree as to which of the two notes, the hand note or the ‘Ne Varietur’ note, was meant to be secured by this act of pledge.
“American Bank advanced Lake a total of $132,000.00. The original plan of development fell through and was replaced by an apartment complex plan. Lake defaulted on its obligation under the loan. The bank began to call on lake for payment and made its final demand on April 11, 1966. On June 24, 1966, American Bank sold the obligation represented by the hand note and all its accompanying security devices to Seymour Weiss for $133,848.00.
“After several conveyances to and from various parties, Speedways acquired the 15.-19-acre tract on December 29, 1970, from Town House Trace, Inc. In this transaction Speedways assumed all mortgages ‘extant’ against the property at that time.
“On June 15, 1971, GSA acquired the property from Speedways and assumed ‘all mortgages . . now extant against the property.’
“Suit was filed herein on November 15, 1974, for the $132,000.00 advanced under the hand note and for recognition of the mortgage.
“LAW
“GUARANTY SAVINGS ASSURANCE COMPANY
“I. GSA contends that when it assumed all mortgages extant against the property, it did not ‘acknowledge, assume, or agree to pay any debts, loans or obligations of others.’ In other words, it only assumed the mortgages, not the underlying debts and therefore cannot be liable to the plaintiff on the notes.
“The argument fails for two reasons:

“First, it is evident that in using the word ‘mortgages’ in the act of sale, the parties intended that which is the ‘common and usual significance’ of the term, which was that GSA assumed the total obligation against the property, its debts and security. The words of a contract are to be interpreted according to their ‘common and usual signification’ and in an effort to ‘ascertain the common intention of the parties.’ Civil Code Articles 1946 and 1950. Only by the most strained interpretation could GSA be said to have assumed the security but not the debt.

“Second, the jurisprudence indicates that a person who assumes a mortgage becomes personally obligated and a co-debtor on the obligation secured by the mortgage. Simon v. McMeel, [167 La. 243,] 119 So. 35 (La.1928), was a suit for the balance due on a promissory note, with interest and attorney fees, and for the recognition and enforcement of the mortgage by which the note was secured. The defendant had bought the property burdened by the mortgage and as part of the purchase price, ‘assumed and obligated herself to pay all mortgages and encumbrances bearing upon the property.’ The court said that, ‘in assuming and binding herself to pay these obligations, the defendant became a codebt- or thereon with the original obligor.’ Federal Land Bank of New Orleans v. Cash, [Cook] et al., [179 La. 857,] 155 So. 249 (La.1934), was a suit to enforce a mortgage against the successors in title of the original mortgagor. The court first noted that, ‘Each of the purchasers expressly assumed and agreed to pay the mortgage in favor of the Federal Land Bank.’ The court then held that, ‘A vendee who assumes and binds himself to pay mortgages or obligations placed on the property by his vendor thereby becomes a co-debtor with the original obligor.’

“II. GSA contends that the hand note is prescribed. The argument is without merit because the ‘Ne Varietur’ note was pledged to secure the hand note pursuant to authority granted to F. D. V. de LaBarre by resolution of Lake. Prescription does not run against an obligation during the existence of a pledge to secure such obligation. Scott v. Corkern, 231 La. 368, 91 So.2d 569; Succ. of Picard, 238 La. 455, 115 So. 2d 817; Reconstruction Finance Corp. v. Holloway, 191 La. 35, [583] 186 So. 35.

“GSA further contends that the principle that a pledge constantly interrupts prescription is without application in this case because the ‘Ne Varietur’ note is prescribed itself, and therefore, valueless. However, even if it were correct that the ‘Ne Varietur’ note had prescribed, it would make no difference insofar as the interruption of prescription of the hand note is concerned. The Supreme Court faced precisely this question in Succ. of Picard, supra., and held:

‘It is not the detention of a thing of value by the pledgee which serves as a constant acknowledgement of the debt and hence a constant renunciation of prescription. Regardless of the value of the thing pledged, the obligation of the pledgee to return the property continues. [. . . ] Under the well settled law the detention or possession is the factor which serves as a constant acknowledgement of the debt.’ mortgage note of even date and in like amount, paraphed for identification herewith.’ The eighteen contracts are listed. The pledge then provides that the $144,-000.00, ‘represented by the note hereinabove described was made in consideration of the promise and agreement of the said University Lake Corporation to pledge and/or assign unto American Bank and Trust Company the monies due and payable or hereafter to become due and payable to the said Lake under the hereinabove described contracts . . . and now, in order to secure said American Bank and Trust Company for the indebtedness aforesaid, as well as to secure the payment of any other obligation or liability direct or contingent, of said University Lake Corporation to said American Bank and Trust Company, now existing or hereafter arising, up to the sum of One Hundred Forty-Four Thousand and No/100 Dollars ($144,000.00).’ The pledge is then made of, ‘any and all sums due or owing to the said University Lake Corporation, or that may hereafter become due or owing to it under and by virtue of the contracts hereinabove described . . . ’

“Under the facts of this case, the hand note is virtually imprescriptible. See Nathan and Marshall, ‘The Collateral Mortgage,’ 33 La. Law Review 497, at 507.

“HI. GSA next contends that the ‘Ne Varietur’ note has prescribed. The plaintiff answers that this nóte is secured by the pledge of proceeds of the eighteen contracts to buy and sell lots in Twin Lake Subdivision; that the pledge is still in existence; that therefore, prescription has not run on the note. GSA responds: (1) the pledge of proceeds was meant to secure the hand note, not the ‘Ne Varietur’ note; (2) it was a pledge of the proceeds of the contracts, not of the contracts themselves, so that when the plan of development was changed and there were to be no proceeds from the contracts, the pledge was abrogated; and (3) because the pledge was not recorded, it cannot affect GSA since it is a third party under the Public Records Doctrine.

“111(A) The act of pledge in question is in authentic form. Attached to it are (1) the Resolution of Lake’s Board of Directors authorizing F. D. V. deLaBarre to enter into the pledge, and (2) the originals of the eighteen written contracts to ‘purchase and sell’ the lots.

“The pertinent language of the pledge first states that Lake, ‘is justly and truly indebted unto American Bank in the full and true sum of One Hundred Forty-Four Thousand and No/100 Dollars ($144,000.00), and represented by one (1) certain collateral

“Lake’s corporate resolution authorizes M. R. Fletcher or F. D. V. de LaBarre to enter into the pledge, ‘as additional security for the loan.’ (emphasis supplied)

“The court is convinced that the pledge was intended to secure, and does secure, the ‘Ne Varietur’ note.

“Both notes are demand instruments made payable to the order of ‘Itself’ by Lake as maker. Both are for $144,000.00, the ‘Ne Varietur’ note calling for 8% interest and the hand note calling for 6%.

“At the outset, the pledge states that it is to secure the obligation represented by the collateral mortgage note, ‘paraphed for identification herewith.’ The language is inartfully drafted in that the ‘Ne Varietur’ note is paraphed for identification with the collateral mortgage, but the intent is clear. The hand note is not paraphed at all. The reference is to the ‘Ne Varietur’ note.

“It is correct that the evidence of the debt is the hand note, not the ‘Ne Varietur’ note. It is also correct that both the act of pledge and the corporate resolution state that the pledge is to secure the, ‘indebtedness aforesaid’ or the ‘loan.’ However, all such references relate back to a debt represented by, ‘the note hereinabove described,’ which is the ‘Ne Varietur’ collateral mortgage note. The pledge also states that it is to secure, in addition to the ‘indebtedness aforesaid,’ ‘any other obligation or liability,’ of Lake to American Bank, ‘now existing or hereafter arising, up to,’ $144,000.00. This language indicates that the parties were dealing with a collateral mortgage ‘Ne Var-ietur’ note. A hand note represents a specific debt only, but the purpose of the collateral mortgage security device is to, ‘create a mortgage note that can be pledged as collateral security for either a pre-existing debt, or for a debt created contemporaneously with the mortgage, or for a future debt or debts, or even for a series of debts,’ up to a maximum amount. (Nathan and Marshall, supra., at 498.)

“Though the language of the act of pledge is not as carefully drafted as it should be in light of the complex nature of the collateral mortgage security device, it is clear that the parties intended the pledge to secure the ‘Ne Varietur’ note.

“111(B) The essence of GSA’s next contention is that the fact that the plaintiff still holds the act of pledge and the eighteen contracts does not act as an interruption of prescription on the note because the pledge was not of the contracts themselves, but of monies due under the contract. When the plan of development was changed, there were to be no proceeds; therefore, the pledge was abrogated.

“The question is whether or not a pledge of the proceeds of contracts includes a pledge of the written evidence of the contracts.

“Succession of Bier, 145 La. 722, 82 So. 868 (1919) provides guidance. The case was an action denying the existence of a pledge.

“The pledge in Bier was of, ‘all my rights, title, interest, and equity in and to the following mortgaged notes . . ..’ The pledge at hand is of the, ‘proceeds of contracts,’ ‘monies due and Payable,’ and ‘any and all sums’ due under the contracts.

“A contention in that case was that, ‘by this document the note itself is not purported to be pledged, but only the equity of the pledgor in the note.’ The contention in this case is that the contracts were not pledged, only their proceeds.

“The court in Bier held: ‘To say that this .owner of the note owns the equity in the note or an equity in it, is merely a form of expression devoid of legal significance . When, therefore, Bier executed said document, he pledged the thing he had, and the thing he had was the note.’

“A similar holding here is that when Lake pledged its interest as creditor of the contracts, it pledged what it had and what it had was the written contracts.

“The pledge of the proceeds herein included the pledge of the contracts themselves. The fact that the contracts are valueless in light of the changed plan of development makes no difference insofar as interruption of prescription through the continued existence of the pledge is concerned. Succ. of Picard, supra.

“111(C). Finally, GSA contends that the pledge can have no effect against it because the pledge was not recorded; that it is a third party, and all documents affecting immovable property must be recorded to have effect against third parties under the Public Records Doctrine. Civil Code Article 3342; McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909).
“The argument fails for two reasons:
(1) GSA is not a third party for purposes of the Public Records Doctrine; and
(2) GSA assumed all encumbrances extant against the property, not just all those indicated by the public records.

“In Hite, et al. v. Charbonnet, 193 La. 581, 192 So. 64 (1939), the Supreme Court held that a person who assumed a mortgage became personally bound for the debt, the same as the original mortgagor, ‘and a party to the mortgage within the meaning and contemplation of the provisions of the Revised Civil Code, and that neither the inscription of the mortgage nor its reinscription was necessary to preserve the same as to him.’

“If a person who assumes a mortgage becomes a party to the mortgage such that neither inscription nor reinscription of the mortgage is necessary to preserve the mortgage as to him, then a person who assumes a collateral mortgage likewise becomes a party to the mortgage such that the recordation of a written pledge done to further secure the collateral mortgage note, as part of the total collateral mortgage security package, is not necessary to affect him.

“Further, when GSA acquired the property it assumed all ‘mortgages, judgments and valid liens now extant against the property.’ Counsel for GSA has indicated in brief that the term ‘mortgages now extant’ means those legally existing and attaching to the property on that date. The court reads this assumption to be broader than all such encumbrances against the property indicated by the public records. GSA assumed everything, not just those things shown by the public records. This act of assumption was tantamount to a waiver of any protection afforded by the Public Records Doctrine.

“IV. GSA also contends that because the attempted reinscription of the collateral mortgage to preserve its efficacy against third parties was defective, the mortgage cannot affect GSA.

“For the reasons noted above, this contention is without merit. Hite, et a 1. v. Charbonnet, supra.
“For all of the above reasons, plaintiff is entitled to judgment as prayed for against GSA.
U * * * >>

In supplemental briefs, appellant advances further argument.

Appellant argues that it has the right to attack the Lake mortgage, citing C.C.P. Articles 2701, 2702 and 2703. It argues that these articles are consistent with the right of a subsequent transferee, such as GSA, to attack the mortgage given by Lake. GSA relies on the early case of Deloney v. George, 20 La.Ann. 216 (1868).

The Deloney case as well as the Code of Civil Procedure articles cited are clearly distinguished from the instant case. C.C.P. Articles 2701, et seq., are applicable to exec-utory process whereas the instant suit is an ordinary proceeding. The most clearly distinguishing fact is that GSA expressly assumed the payment of the note for which the mortgage was given as security and any lack of inscription or reinscription cannot be taken advantage of by GSA, and as we hold supra prescription has not run against the Lake note because of the extant pledge.

In the Deloney case relied on by GSA there was no assumption of the encumbrance, thus as Deloney was a third party to the encumbrance by the original vendee, inscription of the mortgage ceased at the end of ten years within which a reinscription should have been made.

Further, appellant cites First Guaranty Bank v. Alford, 366 So.2d 1299 (La.1978) to support its argument that the mere retention of the 18 contracts does not determine the continued existence of the pledge. The Alford case is inapposite to the facts of the instant case and has no application herein.

We find no factual basis for concluding that the contract of pledge was unilaterally terminated by the pledgee or mutually terminated by the parties.

The judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


text:
    John W. ROBERTS, II v. ALLIED CHEMICAL CORPORATION et al.
    No. 12513.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.

      Bart Eaton, Baton Rouge, for plaintiff-appellee John W. Roberts, II.
    Frank M. Coates, Jr., Baton Rouge, for defendant-appellee Allied Chemical Corp. & The Travelers Indem. Co.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellant Nat. Maintenance Corp. & United States Fidelity & Guaranty Co.
    Before CHIASSON, BAILES and SAR-TAIN, JJ.
   CHIASSON, Judge.

On April 21, 1977, John W. Roberts, II filed a tort suit against Allied Chemical Corporation (Allied), its insurer, The Travelers Indemnity Company (Travelers), National Maintenance Corporation (National) and its insurer, United States Fidelity and Guaranty Company (USF&G). Allied and Travelers answered and filed a third party demand against National and USF&G. In November of 1977, Allied and Travelers moved for a summary judgment against the plaintiff and for a summary judgment against National. On December 19, 1977, USF&G and the plaintiff entered into a release and assignment of plaintiff’s claim.

On February 1, 1978, the motion for summary judgment was granted as to Allied and Travelers against plaintiff. On September 29, 1978, summary judgment was granted as to Travelers against National and declaring that National, under the terms and conditions of a written contract between National and Allied, is legally obligated to indemnify and hold harmless Allied’s officers, directors, and employees against all liability assessed against them in this case; that Travelers is entitled to be subrogated to the aforesaid rights of Allied’s officers, directors, and employees against National; and that Travelers is entitled to be defended by National. From this judgment National and USF&G have appealed.

Appellants urge one specification of error. They argued that the lower court erred in holding that the indemnity agreement between Allied and National required National to indemnify Allied’s employees for negligence which had no connexity or relationship with the work actually being performed by National when the accident occurred.

The indemnity agreement is contained in Article IX of the contract between Allied and National. It provides as follows:

“9.01 CONTRACTOR shall be responsible for and shall indemnify, exonerate and save harmless ALLIED CHEMICAL, its officers, agents and employees, from and against:
“b) Any and all liability, damage, loss, cost, expense, claims, demands, suits, actions, judgments, or recoveries for or on account of any injury to or death of persons or damage to property, including, but not by way of limitation, damage to property of CONTRACTOR, ALLIED CHEMICAL or others, or injury, death of, or damage to property of ALLIED CHEMICAL or CONTRACTOR’S officers, agents, employees, servants or representatives, arising out of or in any way occurring directly or indirectly in connection with the work, except as set forth in c) below, including, without limitation, dele-gable or non-delegable duties imposed on CONTRACTOR or ALLIED CHEMICAL by law, whether or not any such injury, death, or damage may have been caused or alleged to have been caused by the negligence (whether classified as active, passive or otherwise) of ALLIED CHEMICAL, or the condition of the premises or otherwise, and CONTRACTOR shall at its own expense defend any and all actions based thereon. Any loss, damage, cost or expense incurred by ALLIED CHEMICAL in connection with the foregoing may be deducted from CONTRACTOR’S compensation then due or thereafter to become due, in addition to any other remedy that ALLIED CHEMICAL may have.
# s}: :{: %
“9.02 Anything to the contrary notwithstanding, CONTRACTOR’S liability under this ARTICLE IX shall not include the risks to be insured against by ALLIED CHEMICAL which are set forth in Sections 5.04 and 5.05 of ARTICLE V insofar as any loss is covered by such insurance.”

Appellants argued that the Allied employees’ liability for the injury did not arise out of the work as defined by the contract. Appellants contend that under the provisions of Article 9.01, they (National) contracted to indemnify Allied, its officers, agents and employees from and against “Any and all liability ... for or on account of any injury ... of persons . arising out of or in any way occurring directly or indirectly in connection with the work. . . . ” The contract also provides in Article I, 1.01 a statement of work, as follows:

“Services — CONTRACTOR shall furnish to ALLIED CHEMICAL at-its aforesaid chemical plants miscellaneous maintenance services consisting in general of, but not limited to, supervision, labor, materials, tools and equipment. Such services shall be performed by CONTRACTOR only as and when directed by ALLIED CHEMICAL.”

Plaintiff was injured when some hot phosphoric acid escaped from an evaporator vessel after he had moved a flange at the bottom of the vessel. Under appellants’ argument the injury did not result from negligence on the part of any Allied or National employee working on the procedure of moving the flange, but rather from the negligence of the safety or design employees of Allied in developing the procedure for cleaning the vessel before opening the flange. Further, appellants contend this negligence was at a different time and at a different place as compared to the time and place of this accident.

Appellants’ argument is novel but we cannot accept it. A fair reading of the plaintiff’s petition is that he is complaining of “the condition of the premises.” Additionally, the indemnity agreement specifies that Allied, its officers, agents, and employees are indemnified against their liability for injury to a person “arising out of or in any way occurring directly or indirectly in connection with the work.” We find in the instant case that negligence on the part of Allied’s employees in the design or determination of the procedure to be used in cleaning such a vessel before it is opened comes within the ambit of the above cited language. Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977); Lee v. Allied Chemical Corporation, 331 So.2d 608 (La.App. 1st Cir. 1976).

For the reasons given, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.

      . This is the correct name of this insurer, erroneously referred to by the trial court as The Travelers Insurance Company.

      . A pipe fitter employee of National performing maintenance work at Allied’s Geismar plant at the time of the injury.


text:
    Robert BOUDREAUX v. Vernon BOUDREAUX et al.
    No. 12515.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Writ Refused April 27, 1979.
    Edwin R. Fleischmann, Jr., Andry & An-dry, New Orleans, for plaintiff-appellant.

      W. Arthur Abercrombie Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellee Highlands Ins. Co.
    Daniel R. Atkinson, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for defendants-appellees 1st Miss. Corp. & Miss. Chem. Corp. & Triad Chem.
    Victor L. Marcello, Talbot, Sotile & Car-mouche, Donaldsonville, for defendant-ap-pellee Luke Dipuma.
    T. Barry Wilkinson, Port Allen, for defendant-appellee Sline Industrial Painters, Inc.
    Before CHIASSON, PONDER and SAR-TAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

The question before us on this appeal is whether First Mississippi Corporation and Mississippi Chemical Corporation, joint ven-turers doing business as Triad Chemical, are by virtue of La.R.S. 23:1061 the statutory employer of Robert Boudreaux, plaintiff.

Plaintiff sued in tort to recover for personal injuries he received on July 24, 1975, while working as an employee of Quinco, Inc., at Triad Chemical’s plant in Donald-sonville, Louisiana. Named among the defendants were the appellees herein, First Mississippi Corporation, Mississippi Chemical Corporation, and Triad Chemical. Ap-pellees were dismissed in a summary judgment on the grounds that plaintiff’s exclusive remedy against them was under the Workmen’s Compensation Act. Plaintiff appeals their dismissal. We affirm.

The pleadings, affidavit and depositions before us reveal no dispute as to any material fact.

Triad Chemical owns and operates a chemical plant at Donaldsonville for the manufacture of anhydrous ammonia. At the time of the accident, plaintiff was employed as a pipe-fitter by Quinco, Inc. His work at the Triad plant was performed pursuant to a 1971 contract between Quinco and Triad. This contract, denominated by the contracting parties as a maintenance agreement, describes the scope of the work undertaken by Quinco as follows:

A. Except as otherwise provided in this Agreement, Contractor [Quinco] shall provide all necessary supervisory, skilled, common, clerical and special personnel to perform such routine and preventative maintenance, and such repair, renovation, modification and service work as assigned by Owner [Triad] in connection with Owner’s anhydrous ammonia and urea facilities at Owner’s Donaldsonville, Louisiana, plant site.

Nothing in the evidence before us indicates that the work performed at Triad by Quinco’s employees and by plaintiff in particular was anything other than routine maintenance and repairs. On the night of the accident, plaintiff along with other Quinco employees was assigned to remove the top from a sixty foot high tank so that the bundle of pipes within the tank could be repaired, as one was thought to have ruptured. The job was to be done with the help of an electric cable hoist which ran along a track above the tank on which plaintiff was working. This equipment was a permanent fixture installed by Triad to aid in repairs such as that in which plaintiff was engaged. Plaintiff’s injury occurred when the electric hoist malfunctioned causing a cable to lift plaintiff into the air and later drop him. The testimony of both plaintiff and his supervisor indicates that the job plaintiff was performing was routine repair work.

It is appellees’ position that the work being done by plaintiff was part of the trade, business, or occupation of Triad thereby making Triad a statutory employer against which the exclusive remedy is in workmen’s compensation. La.R.S. 23:1032, 1061.

The determination of whether a principal is a statutory employer must be handled on a case by ease basis. Sisk v. Insurance Co. of North America, 356 So.2d 1109 (La.App.2d Cir. 1978). However, it is well established that as a general rule routine repairs and maintenance, as contrasted with new or additional construction, are part of the regular business of a manufacturing plant. Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); Reeves v. Louisiana & Ark. Ry. Co., 282 So.2d 503 (La.1973); Sisk v. Insurance Co. of North America, 356 So.2d 1109 (La.App.2d Cir. 1978); Kelly v. United States Fid. & Guaranty Co., 353 So.2d 349 (La.App.1st Cir. 1977), writ granted 354 So.2d 1383; Duplechin v. Pittsburgh Plate Glass Co., 265 So.2d 787 (La.App.3d Cir. 1972). We find the instant case to be no exception. The work being done by plaintiff and other Quinco employees was an integral part of Triad’s business, essential to the day-to-day efficient operation of the plant.

Plaintiff argues that since Triad chose not to perform its own maintenance, the case of Cain v. Witco Chemical Corp., 341 So.2d 1220 (La.App.1st Cir. 1976), supports his position that Quinco’s work was not part of Triad’s regular business. In answer to plaintiff’s argument and in recognition of comments appearing in several cases (Sisk v. Insurance Co. of North America, supra; Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061 (La.App.3d Cir. 1977)), we feel the need to explain a statement this court made in Cain.

In that case the plaintiff, Cain, a truck driver employed by Younger Brothers, Inc., was injured at the Witco plant while waiting to unload his cargo of sulfuric acid. Witco, sued by Cain in tort, asserted the statutory employer defense. We determined that Witco’s business did not include the transportation and delivery of raw materials to its manufacturing plant although certainly that activity was essential to the operation of the Witco Chemical facility as every manufacturer must have raw materials. We expressed this idea in the following language at page 1226:

“The record clearly establishes that the hauling of acid was a function which Witco required for the successful operation of its business but was also one which they did not desire to become involved in. . ”

We did not mean to indicate thereby that a principal could avoid statutory employer status by contracting with another for the performance of a job integral to its trade, business or occupation, for that would be in direct conflict with Sec. 1061. Our intent was merely to point out that while some manufacturers might also be in the business of transporting raw materials to their plants, Witco was not. Cain is not authority for plaintiff’s argument in the instant case.

Plaintiff also places emphasis upon the maintenance agreement between Quinco and Triad wherein it states, “Neither the contractor [Quinco] nor any of its employees are in any way, directly or indirectly, expressly or by implication, employees or agents of Owner [Triad].” Even if this clause is interpreted to be an attempt by Triad to avoid liability under the Workmen’s Compensation Act, it is entitled to little weight in our determination of Triad’s status. A court must inquire into the true nature of the parties’ relationship without giving undue consideration to how the parties may have characterized themselves in a contract. Sones v. Mutual of Omaha Insurance Co., 272 So.2d 739 (La.App.2d Cir. 1972); Murphy v. Tremont Lumber Co., 22 So.2d 79 (La.App.2d Cir. 1945).

For the reasons assigned, the judgment of the lower court is affirmed. Plaintiff-appellant is to bear the costs of this appeal.

AFFIRMED.

      . Plaintiff sued Triad Chemical as a partnership composed of First Mississippi Corporation and Mississippi Chemical Corporation. In their answer, the two corporations asserted that Triad Chemical was a joint venture, not a partnership. The issue of Triad Chemical’s status as partnership or joint venture is not before us.