text:
    William D. OLIVER, Sr. v. Meridel Vincent OLIVER.
    No. 14974.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      Sam J. D’Amico, Baton Rouge, for plaintiff-appellee-appellant William D. Oliver, Sr.
    Patsy Jo McDowell, Baton Rouge, for defendant-appellant-appellee Meridel Vincent Oliver.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

William D. Oliver, Sr. brought suit against his wife, Meridel Vincent Oliver, seeking a divorce. Mrs. Oliver answered and filed a reconventional demand for a divorce and, in the alternative, for a separation and sought alimony pendente lite and permanent alimony of $1,500 per month. Following a trial, there was judgment in favor of Mr. Oliver granting the divorce and judgment against Mrs. Oliver dismissing her reconventional demand and rejecting her claim for permanent alimony. Mrs. Oliver appealed to this court only that part of the judgment finding her at fault and denying her permanent alimony. By judgment dated November 10, 1980, this court reversed the trial court determination of fault and granted Mrs. Oliver permanent alimony of $867 per month. No date for commencement of payment of the permanent alimony was set in the opinion. Oliver v. Oliver, 393 So.2d 192 (La.App. 1st Cir. 1980). Mr. Oliver applied for a rehearing which was denied on January 26,1981. He then applied to the Louisiana Supreme Court for a supervisory writ which was denied on March 27, 1981. Oliver v. Oliver, 397 So.2d 1358 (La.1981).

On April 22, 1981, Mr. Oliver filed a motion to reduce the permanent alimony award! On May 13, 1981, Mrs. Oliver filed a rule seeking the following relief: (1) judgment for all past due permanent alimony payments retroactive to the date of judgment in the trial court (March 13,1980) totaling $12,138 with legal interest thereon from the due date of each installment (La. C.C.P. art. 3945); (2) a reasonable attorney fee and costs (La.R.S. 9:305); and (3) that Mr. Oliver be cited for contempt of court for failure to comply with the permanent alimony payment order (La.C.C.P. art. 224 and La.R.S. 13:4611[A][4]). Mr. Oliver answered this rule and alleged that permanent alimony payments were not due until the judgment of this court became final with the denial of his application for writs by the Louisiana Supreme Court on March 27, 1981. By judgment rendered on May 21, 1981, and read and signed on May 28, 1981, the Judge of the Family Court of the Parish of East Baton Rouge reduced the permanent alimony payments to $600 per month, commencing June 1,1981. By judgment rendered June 30, 1981, and read and signed on July 9, 1981, the Family Court Judge rendered judgment in favor of Mrs. Oliver and against Mr. Oliver in the sum of $5,202 (representing six payments due through May 10, 1981) for arrearages of permanent alimony payments from November 10, 1980, (the date of this court’s decision) and made this judgment executory. This judgment did not provide for interest on the past due alimony payments, denied the claim for attorney fees, dismissed the contempt citation and cast Mr. Oliver for all costs. From these various judgments, both Mr. and Mrs. Oliver have appealed devolu-tively.

I. EFFECTIVE DATE OF COURT OF APPEAL JUDGMENT AWARDING PERMANENT ALIMONY

Mrs. Oliver argues that the effect of our judgment rendered on November 10, 1980, reversing the trial court and rendering judgment in her favor for permanent alimony at the rate of $867 per month is retroactive to the date of judgment in the trial court. There is authority in this Circuit that a reversal or modification of a trial court judgment by an appellate court places the parties in the same position as if the trial court judgment had not been rendered and is retroactive to the effective date of the trial court judgment. In O’Brien v. O’Brien, 347 So.2d 1288 (La.App. 1st Cir. 1977), Mrs. O’Brien was awarded permanent alimony of $500 per month. In a subsequent proceeding in the trial court, Mr. O’Brien was successful in having this award reduced to $275 per month. This court on appeal reversed the trial court reduction and reinstated the original award. During the time that this litigation was pending in this court, Mr. O’Brien paid Mrs. O’Brien $275 per month on the basis of the amended trial court judgment. This court held that Mr. O’Brien was responsible for payments of $500 per month during the time that the appeal was pending for the following reasons found at pages 1289 and 1290 of the Southern Reporter:

“A suspensive appeal cannot be taken from a judgment relating to alimony, regardless of whether the judgment grants, denies, reduces, increases, or terminates alimony. LSA-C.C.P. art. 3943: Malone v. Malone, 282 So.2d 119 (La.1973); and Donica v. Donica, 324 So.2d 847 (La.App. 1st Cir. 1975).
“However, we reason that the intention of the legislature in denying suspensive appeals from judgments relating to alimony is aptly expressed in the comments to LSA-C.C.P. art. 3943 which states, ‘thus the wife will no longer be deprived of neeessary support pending appeal.’ To allow a husband to suspensively appeal an alimony award could deprive the wife of needed support during the appeal, and thus cause her to have reason to compromise her position.
“It is true the courts in interpreting LSA-C.C.P. art. 3943 have applied the suspensive appeal prohibition to all aspects of alimony awards, however, we find no merit in the argument that the reversal of an alimony reduction award retroactively to the date of the reversal is likened to a suspensive appeal.
“Generally ‘the effect of a general and unqualified reversal of a judgment, order, or decree is to nullify it completely and to leave the ease standing as if such judgment, order, or decree had never been rendered, except as restricted by the opinion of the appellate court.’ 5B C.J.S. Appeal and Error § 1950.
“If the Trial Court judgment would have increased alimony with the wife receiving the increase until that judgment was reversed on appeal, the husband after the reversal became final would be entitled to recover, in a separate action, the overage paid the wife. The wife certainly could not argue that the retroactive application of the reversal effected a suspensive appeal of the Trial Court increase. State, Department of Highways v. Busch, 254 La. 541, 225 So.2d 208 (1969) and Henry Waters Truck & Tractor Company, Inc. v. Relan, 277 So.2d 463 (La.App. 1st Cir. 1973), writ refused, 279 So.2d 206 (La.1973).
“In Whitt v. Vauthier, 295 So.2d 235 (La.App. 4th Cir. 1974), writ refused, 299 So.2d 793 (La.1974), wherein the husband was granted a divorce and the wife was found at fault thus denying her permanent alimony, the appellate court reversed the finding of fault and awarded alimony retroactively to the date of the divorce judgment.
“Thus, we reason that the reversal by the Court of the reduction of alimony places the parties in the same position as if no reduction had ever been decreed, and the retroactive application of the reversal does not operate as a suspensive appeal.” (Emphasis Added).

In Hartley v. Hartley, 336 So.2d 291 (La.App. 1st Cir. 1976), Mrs. Hartley was awarded alimony pendente lite in the trial court of $1,070 per month, plus $148.88 per month for payment of the home mortgage note and $300 per month to use to pay off debts. This court reduced this award to $545 per month for alimony pendente lite and ordered Mr. Hartley to make the monthly mortgage payments. The opinion did not fix an effective date for the reduction. Mrs. Hartley applied for supervisory writs to the Louisiana Supreme Court which were refused. Hartley v. Hartley, 339 So.2d 21 (La.1976). Mrs. Hartley filed a rule for past due alimony arrearages seeking payment for the amounts awarded by the trial court during the time that this matter was pending in the trial court, in this court and on writs to the Louisiana Supreme Court. The trial court granted judgment for 15 months at $1,518.88 per month for a total of $22,783.20. On appeal this court, pursuant to the authority of La. C.C.P. art. 2164, reduced this award retroactively to $545 per month or a total of $8,175. Hartley v. Hartley, 341 So.2d 1257 (La.App. 1st Cir. 1976). The Louisiana Supreme Court granted writs in this case, 343 So.2d 204 (La.1977), to review assignments of error that did not apply to the retroactive application of the reduction of the original alimony award. However, in its opinion in Hartley v. Hartley, 349 So.2d 1258 (La.1977), the Louisiana Supreme Court observed at page 1261 of the Southern Reporter as follows:

“. .. The award of $8,175.00 for unpaid alimony (as reduced to comport with an earlier appellate court reduction) is affirmed.”

It is within the discretion of trial judges to determine when payment of alimony awards shall commence when they render such judgments. McClure v. McClure, 363 So.2d 1334 (La.App. 3rd Cir. 1978). If the judgment of a trial court awarding alimony is silent as to the commencement date of payments, it will be presumed that the trial judge intended alimony payments to be effective from the date of his judgment, rather than commencement of suit. Henson v. Henson, supra. If a trial court on a rule for the reduction of an alimony award grants the relief requested, it has the discretion to fix the effective date of the reduction and may make it retroactive to the date that the rule was filed. Vinson v. Vinson, 292 So.2d 763 (La.App. 4th Cir. 1974). Where the facts and circumstances of the case dictate that fairness and justice would so require it, the reduction in alimony can be made retroactive beyond the date of the filing of the rule. Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978). By analogy it would seem that if a trial court has discretion in determining the date of commencement of alimony payments or the date of commencement of the modification of alimony payments, then such power should also be vested in the Courts of Appeal. Thus, the Courts of Appeal should have discretion to grant modifications or reversals of trial court alimony judgments commencing as early as the date that the request was initiated in the trial court or at such other time thereafter as would do justice in the case.

Mr. Oliver argues that Article 3943 of the Code of Civil Procedure as interpreted in the case of Frederic v. Frederic, 302 So.2d 903 (La.1974) is controlling. On October 5, 1972, Mr. Frederic had judgment rendered in his favor decreeing a divorce and ordering him to pay permanent alimony of $500 per month to his wife. After Mrs. Frederic received a substantial sum for the sale of her share of some community property, Mr. Frederic instituted a rule to terminate permanent alimony payments. This rule was denied in the trial court and he appealed. On February 6, 1974, the Court of Appeal for the Fourth Circuit reversed the judgment of the trial court and denied permanent alimony payments to Mrs. Frederic. Frederic v. Frederic, 290 So.2d 469 (La.App. 4th Cir. 1974). Mrs. Frederic then applied to the Louisiana Supreme Court for supervisory writs which were granted. On the basis of the Court of Appeal judgment of February 6,1974, Mr. Frederic discontinued permanent alimony payments to his wife. Mrs. Frederic then filed a rule for back alimony and the trial judge rendered judgment in her favor for $2,500. Mr. Frederic applied to the Louisiana Supreme Court for an order prohibiting the trial judge from signing the judgment accumulating the past due alimony and the Louisiana Supreme Court granted the order. In ruling on the effective date of the revocation of alimony, the Louisiana Supreme Court in Frederic observed at page 908 of the Southern Reporter as follows:

“Inasmuch as an appeal from a judgment awarding alimony does not suspend the execution of the judgment, La.Code Civ.P. Art. 3943, the husband was not authorized to discontinue alimony payments upon the strength of the Court of Appeal judgment of February 6, 1974 revoking alimony payments. The effect of the Court of Appeal judgment was itself suspended when this Court granted writs to review its correctness. The effective date of the revocation of the alimony due by the husband to the wife is the date the judgment of this Court in these consolidated matters becomes final. Therefore. our order staying execution of the judgment of the trial court of June 28, 1974 cumulating past due alimony is recalled and set aside.”

(Emphasis Added).

In a per curiam found at page 909 of the Southern Reporter, the Louisiana Supreme Court further observed as follows:

“In the application for rehearing of Norman Frederic, the mover raises a question as to the effective date of the revocation of alimony.
“As noted in the majority opinion, an appeal from a judgment awarding alimony is devolutive only. See LSA-C.C.P. Art. 3943. Hence, the effective date of the termination of alimony is the date that the judgment of this Court becomes final.”

(Emphasis Added).

In Bruner v. Bruner, 373 So.2d 971 (La.App. 2nd Cir. 1979), Mrs. Bruner secured a divorce on June 30, 1977, and awards for alimony pendente lite in the amount of $622.72 monthly until the divorce became final and permanent alimony in the amount of $689.25 to commence after the judgment of divorce became final. Mr. Bruner appealed this judgment and the Second Circuit affirmed the divorce, reduced the alimony pendente lite award to $350 and reversed the permanent alimony award. Bruner v. Bruner, 356 So.2d 1101 (La.App. 2nd Cir. 1978). Mr. Bruner did not further contest the judgment of divorce and it became final on March 21, 1978. Mrs. Bruner applied for and was granted supervisory writs to the Louisiana Supreme Court which affirmed the decision of the Court of Appeal on November 13,1978, and denied Mrs. Bruner’s application for a rehearing on December 14, 1978. Bruner v. Bruner, 364 So.2d 1015 (La.1978). Mr. Bruner paid alimony pendente lite as ordered by the judgment of June 30, 1977, in the amount of $622.72 each month through February 15, 1978 but paid no further alimony past that time based on the Court of Appeal decision. On June 8, 1978, Mrs. Bruner filed a rule seeking a judgment for all alimony which became due subsequent to February 15, 1978. Mr. Bruner claimed that because the Court of Appeal ruled he owed alimony pendente lite in the amount of $350 and he paid alimony pendente lite in the amount of $622.72, that he was entitled to apply the excess paid by him as a credit against all sums he was subsequently ordered to pay. In answering this contention, the Court of Appeal for the Second Circuit observed as follows at page 976 of the Southern Reporter:

“... This contention is untenable because it is contrary to the rule as expressed in Frederic v. Frederic, supra, to the effect that once the alimony is established in a judgment, it is owed until the judgment reversing or modifying it becomes final....”

See also Langham v. Langham, 381 So.2d 1284 (La.App. 2nd Cir. 1980).

Frederic holds that when a trial court grants alimony, Article 3943 of the Code of Civil Procedure creates a right in favor of the successful trial court litigant that is irrevocable and unmodifiable during the appellate process. However, Malone v. Malone, supra, holds that Article 3943 is equally applicable to denials, reductions, increases and terminations of alimony as well as to grants of alimony. We must then reason from the Frederic postulate that Article 3943 also creates an irrevocable and unmodifiable right in favor of a successful trial court litigant during the appellate process when a trial court denies, reduces, increases or terminates alimony. What is sauce for the litigious goose must also be sauce for the litigious gander.

It appears that the holdings of Frederic and Bruner are in conflict with those of O’Brien and Hartley. We believe Fre deric and Bruner to be in error. The purpose of Article 3943 is to suspend the execution of the trial court judgment while the appeal is pending, i.e., to allow only devolu-tive appeals in alimony and custody cases. This Article of the Code of Civil Procedure must be construed in connection with Article 2164 which authorizes appellate courts to “render any judgment which is just, legal, and proper upon the record on appeal.” Article 3943 should not be construed to preclude appellate courts from reversing or modifying trial court judgments retroactively when they are wrong and the interests of justice require it.

However, we are obligated to follow the latest holding of the Louisiana Supreme Court. Phillips v. Nereaux, 357 So.2d 813 (La.App. 1st Cir. 1978); O’Connor v. Terry, 346 So.2d 739 (La.App. 1st Cir. 1977); Gamhino Industries, Inc. v. Security Ins. Co., 333 So.2d 759 (La.App. 4th Cir. 1976). For this reason, we will adhere to the rule established by Frederic and fix the effective date of commencement of permanent alimony payments in favor of Mrs. Oliver on March 27, 1981.

II. ATTORNEY FEES AND CONTEMPT

It was stipulated at the hearing held on May 21, 1981, that Mr. Oliver had not paid any alimony, but stood ready to pay the April payment for that year. Because of the dispute about the date of commencement of permanent alimony payments and because of the ruling rendered herein, Mrs. Oliver is not entitled to recover attorney fees pursuant to La.R.S. 9:305 and Mr. Oliver is not in contempt for successfully litigating his claim.

III. REDUCTION OF PERMANENT ALIMONY PAYMENTS

The trial judge, after a hearing, reduced the permanent alimony payments due by Mr. Oliver from $867 per month to $600 per month, effective June 1, 1981.

The burden is on a party seeking to modify an award of permanent alimony to prove a change in the circumstances of one or both of the parties from the time of the divorce decree to the time of. the rule for modification. Article 160, Louisiana Civil Code; Sonfield v. Deluca, 385 So.2d 232 (La.1980); Blondeau v. Blondeau, 396 So.2d 403 (La.App. 1st Cir. 1981). A trial judge has much discretion in fixing the amount of permanent alimony and his award, or modification of an award, will not be disturbed on appeal in the absence of a showing of an abuse of such discretion. Loyacano v. Loyacano, 358 So.2d 304 (La.1978); Gautreaux v. Gautreaux, 382 So.2d 996 (La.App. 1st Cir. 1980).

At the original hearing to fix permanent alimony, Mrs. Oliver had expenses totaling $1,550.83. Mr. Oliver listed his expenses at $1,028 per month with a net monthly income of $2,396. Based on these figures, this court fixed permanent alimony at $867 per month.

At the reduction hearing, Mrs. Oliver claimed expenses of $1,224.50. She no longer has to pay a house note or a car note. These two notes total over $300. Since the original rule Mr. Oliver has remarried and bought a home. His wife’s gross monthly income is about $1,000. His note on his home is $540 more than he listed as a rent expense at the prior hearing. He has also purchased furniture and appliances for the new home. He listed his expenses at $2,498 per month and his personal net monthly income was $2,783.54.

In view of the circumstances, it is our opinion that the trial judge has not abused the much discretion allowed him in modifying permanent alimony awards.

IV.CONCLUSION

For the foregoing reasons, the judgment of the Family Court of East Baton Rouge Parish, insofar as it reduced the permanent alimony payments from $867 per month to $600 per month commencing June 1, 1981, and dismissed the rules for contempt and attorney fees, is affirmed. The judgment of the Family Court is amended to provide that Mrs. Meridel Vincent Oliver is entitled to permanent alimony payments commencing March 27, 1981, with legal interest on each unpaid permanent alimony payment from its due date until paid. Miller v. Miller, 321 So.2d 318 (La.1975); Marshall v. Marshall, 390 So.2d 1365 (La.App. 4th Cir. 1980); Thompson v. Gourville, 372 So.2d 579 (La.App. 3rd Cir. 1979); Weeks v. Weeks, 349 So.2d 1008 (La.App. 2nd Cir. 1977). Mr. Oliver is cast for all costs in the trial court and for the costs of this appeal.

AMENDED IN PART AND AFFIRMED.

      . Mr. Oliver could have appealed suspensively from the judgment accumulating back alimony. Frazier v. Frazier, 374 So.2d 198 (La.App. 4th Cir. 1979); Lacour v. Lacour, 355 So.2d 1083 (La.App. 4th Cir. 1978); Henson v. Henson, 350 So.2d 979 (La.App. 2nd Cir. 1977); Picinich v. Picinich, 271 So.2d 670 (La.App. 1st Cir. 1972).

      . La.C.C.P. art. 2164 provides:
      “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The Court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

      . La.C.C.P. art. 3943 provides:
      “An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.”

      (Emphasis Added).

      . A wife is entitled to alimony pendente lite pursuant to Article 148 of the Civil Code during the pendency of a suit for divorce until the divorce decree becomes final. Thereafter, she is entitled to permanent alimony pursuant to Article 160 of the Civil Code. Golson v. Golson, 351 So.2d 100 (La.1977).

      . See Malone v. Malone, supra, at page 121 of the Southern Reporter.


source: Caselaw Access Project

author: LANIER, Judge. LEAR, Judge,

license: Public Domain

text:
    Sidney J. LACY, Jr. v. CITY-PARISH OF EAST BATON ROUGE and/or Pat Screen, Mayor-President.
    No. 14979.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.
    Robert L. Kleinpeter, Baton Rouge, for plaintiff-appellant Sidney J. Lacy, Jr.
    Frank J. Gremillion, Lynn E. Williams, Baton Rouge, for defendants-appellees City of Baton Rouge, et al.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit by Sidney J. Lacy, Jr. to be reinstated to the position of Personnel Administrator for the City-Parish Government of East Baton Rouge Parish, Louisiana. In the trial court and in this court, Lacy maintains that he was unlawfully terminated because the procedural requirements for removal from office required by Section 4.03 of the Plan of Government of the City-Parish of East Baton Rouge were not complied with. The trial court rejected this argument and found as a matter of fact that Lacy resigned his position. This devolutive appeal followed.

In brief, the appellant concedes that the basic facts set out by the trial judge “are substantially correct”, but claims that the trial court’s determination that he resigned, rather than was terminated, is manifestly erroneous and clearly wrong. The factual findings of the learned trial judge are as follows:

“Mr. Lacy, prior to January 2, 1981, occupied the position of Personnel Administrator for the City-Parish of East Baton Rouge for 16 years. After the election of James Patrick Screen, Jr., as Mayor-President of the City-Parish of East Baton Rouge in the fall of 1981, Mr. Lacy was contacted by J. David Bourland, a member of Mayor-President Screen’s transition committee, about implementing six new unclassified positions that were provided for in the Plan of Government of the City-Parish of East Baton Rouge. Mr. Lacy knew in November 1981 that the position of Personnel Director would be given to another person, however, from his conversations with Mr. Bourland he thought he would get a position in the new administration as Assistant Personnel Director, an unclassified position he helped implement (Exhibit P-9, page 29). Mr. Lacy was desirous of this position so he could continue working for the City-Parish for at least 16 months in order to earn full retirement.
“Mr. Lacy testified that on December 30, 1981, he met with Mayor-President elect Screen and Mr. Bourland and was informed that the new administration would not retain him in the new administration. Mr. Lacy testified that he decided to salvage what he could, so on December 31, 1980, he made application for severance pay of 120 days and was paid $20,403.16. He also sought leave for the unused vacation time in excess of the accumulated sick and/or vacation time of 120 days (Exhibit D-l).
“After assuming the office of Mayor-President, Mayor-President Screen can-celled Mr. Lacy’s annual leave, as in the case of Mr. Burgess. Mr. Lacy seeks reinstatement to the position of Assistant Personnel Administrator effective January 2, 1981, or alternatively, reinstatement to the position of Personnel Administrator and not subject to removal until full compliance of Section 4.03 of the Plan of Government.
“REINSTATEMENT AS ASSISTANT PERSONNEL ADMINISTRATOR “Mr. J. David Bourland testified that he sought Mr. Lacy’s help in implementing the six new unclassified positions for the new administration. He stated that it was his wish that Mr. Lacy would be retained by the new administration due to his expertise of the personnel office. Mr. Bourland candidly testified that his enthusiasm could have led Mr. Lacy to believe that he would be retained as Assistant Personnel Administrator. “Testimony revealed that at no time did Mr. Bourland possess any authority from Mayor-President elect Screen to offer, promise or hire anyone for any position whatsoever.
“This Court finds that neither Mayor-President Screen, nor anyone acting with his authority, agreed to hire Mr. Lacy as Assistant Personnel Director. “REINSTATEMENT OF PERSONNEL ADMINISTRATOR
“Mr. Lacy argues that if he is not hired as Assistant Personnel Administrator, then he should be reinstated as Personnel Administrator and not removed until full compliance of Section 4.03 of the Plan of Government.
“The testimony reveals that after the December 30, 1980, meeting with Mayor-President elect Screen and Mr. Bourland, Mr. Lacy submitted a request on December 31, 1980, for severance pay and unused vacation time (Exhibit D-l). He was paid $20,403.16 severance pay and never returned to work. The Court does not find Section 4.03 applicable inasmuch as Mr. Lacy was not terminated by May- or-President Screen, but in fact resigned.”
* * * * * *

The facts of record show that appellant was aware well in advance of January 2, 1981, that he would not be retained in the post of Personnel Administrator in the Screen administration. The record further reflects that on December 30, 1980, that appellant was advised by Mayor-President Screen that he would not be retained in the new administration in any position. Thereafter, on December 31, 1980, appellant submitted a Personnel Status Change form to the Personnel Department of the City-Parish of East Baton Rouge indicating that he anticipated a change in status as of January 3, 1981, from the position of Personnel Administrator and sought and did collect 120 days accrued vacation time and sick leave benefits of $20,403.16.

Ordinance 2216 of the City of Baton Rouge and Parish of East Baton Rouge and Rule IX of the Rules Governing Employees in the Classified Service concerning payment for accrued sick leave and/or vacation time not to exceed 120 working days treat classified and unclassified employees identically. Section 2.4 of Rule IX prohibits payment of any kind to the employee in lieu of vacation time except in two instances: (1) if the employee is required to work during a vacation period, or (2) upon termination of employment after completing at least one year of service. Section 2.9 of Rule IX provides for payment of accrued sick leave and/or vacation time not to exceed 120 days when employment is terminated by retirement, discharge, removal through no fault of the employee or death. Since appellant was Personnel Director and responsible for the proper administration of these rules, he certainly knew and understood that when he submitted the Personnel Status Change (PSC) form # 56148 requesting payment for 120 days accrued vacation time and sick leave that he was terminating his employment. Otherwise, he would have been in obvious violation of the ordinances, rules and regulations previously set forth. This conduct indicates a voluntary termination of employment and is inconsistent with a continuation of employment.

Appellant also sought leave for 55 days of unused vacation time in excess of the 120 days previously claimed. In his testimony at pages 72 and 79 of the transcript, he indicated that the purpose of this leave time was to give him “time to look for employment elsewhere.” Mayor-President Screen could not remove the appellant from his position prior to January 2,1981, because he was not in office. Appellant voluntarily removed himself from office in anticipation of action by Mayor-President Screen. The appellant did not attempt to be retained in the position of Personnel Administrator and insist on compliance with Section 4.03 until after his excess leave time was cancelled by Mayor-President Screen. We cannot say that the trial judge was clearly wrong in determining that these facts and circumstances demonstrated an intention by the appellant to voluntarily terminate and/or resign his position as Personnel Administrator. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In view of our determination that the trial judge was not clearly wrong in finding as a matter of fact that the appellant resigned his position, it is not necessary for us to pass on the alternative allegation of equitable estoppel.

For the foregoing reasons, the judgment of the trial court is correct and will be affirmed at appellant’s costs.

AFFIRMED.

LEAR, J., dissents and assigns reasons.

APPENDIX NO. 1

“SECTION 4.03. Chief Executive Officer of the Parish and City.
The mayor-president shall be the chief executive officer of the parish and city and shall have power, subject to this plan of government, the ordinances and resolutions of the councils adopted in pursuance thereof, and the constitution and general laws of the state, to supervise and direct the administration of all departments, offices and agencies of the parish and city governments the heads of which are appointed by him. He shall have all the powers and duties, not inconsistent with the provisions of this plan of government, conferred or imposed on the mayor of the City of Baton Rouge by its charter or which may be conferred or imposed on the mayors of cities by the general laws of the state applicable to such city. He shall have power to appoint and remove, subject to the provisions of Chapter 9, of this plan of government, the director of finance, purchasing agent, personnel administrator, director of public works, the chief of the fire department and the chief of police, and such other officers and employees as the respective councils may provide by ordinances pursuant to this plan of government. In the case of any officer or employee, who is not a member of the classified service as provided by Chapter 9 of this plan of government or by any general law applicable to the City of Baton Rouge, the mayor-president shall, before he may exercise the power of removal, first serve on the officer or employee sought to be removed a notice in writing setting forth the grounds of the proposed removal and fixing a time and place, not less than ten days after the service of such notice, at which the officer or employee shall be given an opportunity to be heard thereon. After such hearing, which shall be public at the option of the officer or employee, the action of the mayor-president shall be final. The mayor-president may suspend from duty for not more than sixty days any such officer or employee pending final action.” (Emphasis Added).

LEAR, Judge,

dissenting.

Mr. Lacy held the position of personnel administrator for the city-parish government of East Baton Rouge Parish, Louisiana, in the administration of Mayor-President Dumas. The last day of the Dumas administration was January 2, 1981. The record indicates that Mr. Lacy did not resign from his position in the Dumas administration and that he continued to hold this position through January 2, 1981. The record clearly indicates that Mr. Lacy fully expected and intended to continue working in the city-parish government under the incoming Screen administration. However, as pointed out by the majority, the record further reflects that on December 30, 1980, Mr. Lacy was advised by then mayor-president elect Screen that he (Lacy) would not be retained in the new administration in any position. This clearly amounted to a termination by Mayor-President Screen as of January 3, 1981.

On December 31, 1980, the day after being informed of his intended termination, Mr. Lacy sought to claim his accrued annual leave and sick benefits and unused vacation time and notified the personnel department of the city-parish of East Baton Rouge that he desired these benefits as of January 3, 1981, the date of his termination.

I do not believe that requesting and receiving these benefits upon termination was any indication of Mr. Lacy’s intention to resign his position, nor is it in any way inconsistent with his claim that he was improperly removed. Simply, Mr. Lacy was terminated by Mr. Screen as of January 3, 1981, and on that day he picked up his belongings, took his benefits and went home. Nothing more or less should be expected of a terminated employee. My examination of the record reveals absolutely no action or statement by Mr. Lacy or any other evidence which indicates Mr. Lacy’s intention to resign. I believe that the trial court was clearly wrong in finding that Mr. Lacy resigned.

For these reasons, I respectfully dissent.

      . Section 4.03 of the Plan of Government of the City-Parish of East Baton Rouge, Louisiana, is attached hereto as Appendix No. 1.


author: LANIER, Judge.

text:
    Floyd W. EDWARDS v. SUPERIOR COACH SALES, INC., et al.
    No. 14982.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.
    Whit M. Cook, II, Baton Rouge, for plaintiff-appellant Floyd W. Edwards.
    Peter T. Dazzio, Baton Rouge, for defendants-appellees Superior Coach Sales, Inc. and Fidelity and Cas. Co. of New York.
    Robert S. Rooth, New Orleans, for defendant-appellee E. I. du Pont Nemours and Co.
    James B. Doyle, Baton Rouge, for inter-venor-appellee The Fidelity and Cas. Co. of New York.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort by Floyd W. Edwards against Superior Coach Sales, Inc. (hereinafter referred to as Superior), its liability insurer, The Fidelity and Casualty Company of New York (hereinafter referred to as Fidelity), and E. I. du Pont de Nemours & Company (hereinafter referred to as du Pont). Superior and Fidelity filed exceptions of no right of action and no cause of action and, alternatively, a motion for summary judgment alleging that there was an employer-employee relationship between Superior and Edwards at the time of the accident, that Edwards’ exclusive remedy against Superior and Fidelity was for workmen’s compensation benefits and that Edwards accepted workmen’s compensation benefits and medical payments for over a year in recognition and acknowledgment of the fact that he was in the course and scope of his employment at the time of the accident. The trial judge sustained the .peremptory exceptions and granted the summary judgment and dismissed Superior and Fidelity from the suit. Edwards took this devolutive appeal.

I. FACTS

Superior is a business involved in the maintenance, lettering and sales of school buses and has its principal place of business in East Baton Rouge Parish, Louisiana. In December of 1978, appellant was a regular employee of Superior and did maintenance and part-time sales work. On Saturday, December 2, 1978, Superior was open for business, but appellant was not scheduled to do maintenance work that day. However, appellant had a customer who wanted to look at a new school bus, but could not come during the week, so they agreed to meet at the office of Superior on Saturday to view the bus and negotiate the sale. After the sales agreement was consummated, appellant asked permission of L. C. Eddie Edwards, the President of Superior, to use the welding equipment on Superior’s premises for the purpose of welding a bracket on a display rack for clothing that was used by the appellant and his wife in a small business that they had just acquired. Appellant proceeded to the portion of the premises where the welding equipment was located, placed the rack in a vice and commenced welding operations. After several minutes, there was an explosion and subsequent fire. The appellant was burned and injured. Appellant alleges that the explosion resulted when the welding arc ignited vapors from a five gallon can containing acrylic enamel reducer owned by Superior and manufactured by du Pont.

II. EXCEPTION OF NO RIGHT OF ACTION

The exception of no right of action raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted. La.C.C.P. art. 927(5); Lambert v. Donald G. Lambert Construction Company, 370 So.2d 1254 (La. 1979); Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3rd Cir. 1981); Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977). Evidence supporting or controverting an exception of no right of action is admissible. La.C.C.P. art. 931; Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979).

Superior and Fidelity claim that the plaintiff was injured by an accident arising out of and in the course of his employment (La.R.S. 23:1031) and that accordingly he has no right of action in tort because his remedy for workmen’s compensation benefits is exclusive (La.R.S. 23:1032). In Laughlin v. City of Crowley, 411 So.2d 708 (La.App. 3rd Cir. 1982), at page 711 of the Southern Reporter, appears the following:

“LSA-R.S. 23:1031 provides that compensation shall be allowed for accidental injury ‘arising out of and in the course of’ the claimant’s employment. Under the jurisprudence interpreting this statute, it has been held that the terms ‘arising out of’ and ‘in the course of’ are not synonymous but, nevertheless, must be considered together. To ‘arise out of’ the employment, the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Time, place and circumstance must determine this. An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by it.

See also Guidry v. Serigny, 378 So.2d 938 (La.1979); DeVillier v. Highlands Insurance Company, 389 So.2d 1133 (La.App. 3rd Cir. 1980).

(A) PLACE

It is uncontested that the accident occurred on the premises of the principal place of business of Superior in the Parish of East Baton Rouge, Louisiana.

(B) TIME

The evidence shows that the plaintiff’s duties were approximately three-fourths maintenance and one-fourth sales. When he did maintenance work, he was paid on an hourly basis and when he consummated sales, he was paid a commission. On Saturday, December 2,1978, the plaintiff was not scheduled to work on an hourly basis at maintenance work, but he was required by his job duties to go to the premises of his employer to negotiate and consummate the sale of the school bus. In Carter v. Lametta, 249 La. 1098, 193 So.2d 259 (1966), the Louisiana Supreme Court observed that even if an employee has finished his day’s work and is preparing to leave or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment and that the working day embraces these intervals just as it includes reasonable periods of rest, relaxation or the attendance of personal needs. In that case, the plaintiff finished her working day at 2:30 P.M., but remained on the premises chatting with her employer for twenty or thirty minutes. On leaving the premises, she lost her footing on a cement step adjoining the front door and fell and injured herself. The court determined that she was still in the course of her employment and was entitled to compensation benefit payments. In Fabre v. Travelers Insurance Company, 286 So.2d 459 (La.App. 1st Cir. 1973), writs refused, (La.1974), this court held that an employee who had completed his work day and was departing the premises of his employer and ran into a hole in the road with his car on the employer’s premises or premises immediately adjacent thereto was within the scope and course of his employment and that his exclusive remedy was workmen’s compensation.

The evidence shows that immediately after the plaintiff consummated the sale of the school bus, he obtained permission to use the welding equipment and had only been welding several minutes when the accident occurred.

(C)CIRCUMSTANCES

The evidence shows that Superior’s president readily accommodated his employee, the plaintiff, and allowed him to use Superior’s welding equipment on the premises for personal purposes. The evidence also shows that the plaintiff occasionally was required to do welding work as part of his duties with Superior. In Bates v. Gulf States Utilities Company, 249 La. 1087, 193 So.2d 255 (1966), the plaintiff had completed his work day at 4:30 P.M. and proceeded to the employee’s parking lot on the employer’s premises with the intention of driving his automobile home. He discovered that his right rear tire was flat and brought it to the employer’s garage on the premises to fix it. During the course of the repair operation, the tire exploded and injured him. The Louisiana Supreme Court determined that the right to use the parking lot and the tire repair equipment was contemplated by the employer and were perquisites of the employment relationship, that an employee is still in the scope of his employment for a reasonable period while still on the employment premises after his day’s work is finished, and that the working day embraced these intervals just as it included reasonable periods for rest, relaxation, or the attendance of personal needs. The court ruled that Bates was within the scope and course of his employment and entitled to compensation benefit payments.

In Colston v. Great American Insurance Company, 173 So.2d 848 (La.App. 3rd Cir. 1965), writs refused, (La.1965), a television repair man was allowed by his employer during regular working hours to repair his own television antenna at his home which was off of the employment premises. When he was injured there, the court determined that he was within the scope and course of his employment and entitled to compensation benefit payments.

III. CONCLUSION

The appellant initially came to his employer’s premises to do his employer’s work for which he received a commission. An employee remains in the scope and course of his employment for a reasonable time after his work terminates or while he is attending to a personal matter that is reasonably employment connected. In the instant case, the performance of the personal chore occurred during the reasonable period allowed an employee after his work terminates, but while he is still on or leaving the work premises. Allowing the employee to use the employer’s equipment on the work premises for a personal need immediately after work terminated was reasonably related to the employment because it fostered a good employer-employee relationship.

Under all of these circumstances, the factual determination of the trial court that the plaintiff was injured in an accident arising out of and in the course of his employment is not clearly wrong. Arcen-eaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, the ruling of the trial court sustaining the exception of no right of action is correct and will be affirmed at the appellant’s costs.

AFFIRMED.

      “5. See Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973); Renfroe v. City of New Orleans, 394 So.2d 787 (La.App. 4 Cir. 1981), writ denied, 399 So.2d 621 (La.1981).

      “6. See Lisonbee v. Chicago Mill & Lumber Co., supra; Kern v. Southport Mill, Ltd., 174 La. 432, 141 So. 19 (1932).

      “7. See Lisonbee v. Chicago Mill & Lumber Co., supra; Renfroe v. City of New Orleans, supra; Whitney v. U. S. Fidelity & Guaranty Insurance Co., 373 So.2d 728 (La.App. 2 Cir. 1979), writ denied, 376 So.2d 320 (La.1979).”

      . In view of our ruling on the exception of no right of action, it is unnecessary for us to pass on the exception of no cause of action or the motion for summary judgment.


author: COVINGTON, Judge.

text:
    Vernon L. LEWIS v. EXXON CORPORATION, et al.
    No. 14984.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      Daniel L. Avant, John L. Avant, Baton Rouge, for plaintiff-appellant Vernon L. Lewis.
    John B. Noland, Baton Rouge, for inter-venor appellant Associated Indemnity Corp.
    Glenn P. Marcel, Wendell G. Lindsay, Jr., Baton Rouge, for defendants and third party petitioners appellant Exxon Corp. and Robert D. Litt.
    Wood Brown, III, New Orleans, for third party defendants-appellees H. E. Wiese and Aetna Ins. Co.
    Gerald L. Walter, Jr., Baton Rouge, for defendants and third party defendants-ap-pellees Tyler Pipe Industries, Inc. and Hartford Accident & Indemnity Co.
    Before COVINGTON, LOTTINGER and LANIER, JJ.
   COVINGTON, Judge.

This case was heard by the trial judge for several days extending over a period of several months. After considering the evidence and the applicable law, he assigned written reasons for judgment on March 20, 1981, and signed the judgment on April 10, 1981.

The judgment was in favor of defendants, Exxon Corporation and Robert D. Litt, Tyler Pipe and Hartford Insurance Company, and also in favor of third party defendants, H. E. Wiese, Inc., Aetna Insurance Company, Tyler Pipe and Hartford Insurance Company. Judgment was decreed in favor of the aforementioned defendants and against plaintiff, Vernon L. Lewis, dismissing his demand with prejudice; it was also decreed in favor of the third party defendants, dismissing the third party demands of Exxon Corporation and Robert D. Litt. The judgment also dismissed the intervention of Associated Indemnity Corporation, the workers’ compensation carrier of Wiese.

The plaintiff timely moved for a new trial. Associated Indemnity Corporation, as workers’ compensation intervenor, also moved for a new trial.

On May 15,1981, the matter came on for hearing on the motions for new trial. Documentary evidence was introduced; the matter was then argued and submitted. The trial judge denied the motions, and assigned oral reasons for the denial.

Lewis took a devolutive appeal on May 18, 1981; subsequently, Exxon and Litt, and also Associated Indemnity Corporation, took devolutive appeals.

This suit arises out of an accident which happened on March 10, 1977, at the Exxon chemical plant in East Baton Rouge Parish. Vernon Lewis was employed as a pipefitter welder by H. E. Wiese, Inc., which had entered into a contract with Exxon to convert an existing ethanol unit to production of isopropanol. While Lewis was welding a flange on an eight-inch gas line in order to install a metering device, a seal plug, which had been inserted in the line to isolate a section thereof, blew out causing severe injuries to plaintiff’s left arm and shoulder.

The eight-inch gas line involved was a line running from the Exxon refinery to the Exxon chemical plant, carrying gas from the refinery for use in the chemical plant. For internal accounting purposes, the refinery would bill Exxon chemical for the gas supplied. Since some of the gas, which was not used, was returned, Exxon needed a means of measuring the gas so that an accurate accounting could be made. The job that plaintiff (and the Wiese crew) was working on at the time of the accident was installing a metering device on the line for this purpose. Prior to the accident, a “hot-work permit” had been issued, certifying that the area in which Lewis was to weld was safe for that purpose, and that a test had been conducted to cheek for the presence of combustible gases in that area.

Shortly before the accident, a portion of the eight-inch line had been cut out after a nitrogen purge of the line. Apparently the purge did not effect a complete removal of gas from the line, so it became necessary to isolate the work area. The seal plug, weighing approximately 25 pounds, was used for this purpose, and it had been inserted just prior to plaintiff’s welding of the flange. It was then, as plaintiff commenced welding, that the plug blew out, causing the injuries complained of in this suit.

In reaching its decision, the trial court found that Exxon was the statutory employer of Lewis under LSA-R.S. 23:1061, and as such entitled to tort immunity under LSA-R.S. 23:1032. The court below also found that neither Exxon nor Litt (nor any of Exxon’s employees) committed an intentional tort within the meaning of LSA-R.S. 23:1032. Additionally, the trial court found that the negligence of Exxon and Robert D. Litt caused the injuries to Lewis, and that Exxon was not entitled to be indemnified by Wiese under their indemnity agreement.

On appeal, Lewis asserts that the trial court erred in finding that Exxon and Litt had carried their burden of proving that Exxon was a statutory employer of Lewis, and in finding that the injuries to the plaintiff were not the result of an intentional act. The plaintiff also contends on appeal that the court below erred in not addressing the issue of the constitutionality of LSA-R.S. 23:1032.

On the question of “statutory employer”, or the so-called “Section Six defense”, plaintiff argues that Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973), is controlling; and that Blount v. Exxon Corporation, 395 So.2d 355 (La.App. 1 Cir. 1981), is supportive of a decision against Exxon’s defense. At the trial, to prove its Section Six defense, Exxon presented the testimony of several witnesses, who testified as follows:

J. B. Arbour, division manager of the Exxon solvents and specialties plant in Baton Rouge, testified that Exxon was in the process of converting its existing ethanol facility to an isopropanol facility; and that the demand for ethanol had decreased, while that for isopropanol had increased, and the ethanol unit was old, all of which dictated management’s decision to shut down the ethanol business and upgrade the isopropanol. He also said that Exxon had the supervisors, pipefitters, and welders available from its maintenance organization to do the job; however, it would have taken Exxon much longer to do the job without outside help, due to the fact that if this number of trained workers was utilized on the conversion project, they could not also operate the chemical plant. Arbour also testified that the work that Lewis was performing at the time of the accident was frequently done by Exxon employees.

Arbour testified that it cost about $17 million for the conversion of the facility from ethanol to isopropanol. If Exxon had built a new isopropanol unit from the ground up without any of the ethanol facilities being utilized, it would have cost about $42 million. Arbour further testified that the metering device would have been installed whether or not the ethanol unit had been converted to isopropanol, because the device “is something that we needed so that we could get credit for this volume of gas that we were selling to the refinery.” He stated that he had issued a “hot-work permit” for the particular job.

Edward N. Boyle, Jr., head of Exxon’s project development department, testified that about 20% of the planning and design man-hours for the conversion was done under his supervision; that his department contributed about 42,000 man-hours to the design; and that although four other firms also worked on the design, all of the work could have been done by Exxon employees if management had wanted to do it that way. He stated that Exxon had done other projects of similar size and nature.

Jack H. Woods, an Exxon employee in construction, testified that, as an engineer, he had supervised about twelve projects (both large and small) for Exxon. These projects included the Aldox unit, which enabled Exxon to manufacture cosmetic alcohols. The Aldox project was done with refinery personnel, beginning in 1961, taking about 15 months to complete, according to Woods.

A. E. Sharp, an Exxon employee in charge of planning and scheduling, testified that in 1970 he supervised the construction of a 12-story ethylene unit to replace one which had been damaged by fire. Virtually all crafts were engaged on the rebuilding of this unit, with total man-hours in excess of 100,000 being expended by Exxon personnel. This project was an emergency job, which utilized 12-hour shifts, 7 days a week, in order that the unit could be restored to operating condition as quickly as possible. About one-half of the workers came from the Exxon refinery and the other half from the Exxon chemical plant, a total of about 90 workers.

Paul E. O’Neill, an employee in Exxon’s resource administration for construction department, gave testimony that indicated that Exxon employees were, to some extent, interchangeable between the refinery and chemical plants as management needed their services and crafts. They are cross-trained to do construction and maintenance work. They had 895-900 workers in his department. A complete set of crafts was available, including pipefitters, welders, machinists, boilermakers, etc. He testified that their functions were to maintain the Exxon refinery and do the project work as it was distributed to the workers. He said Exxon used about 125 workers on construction-type project work in 1977.

In rebuttal of Exxon’s Section Six defense, plaintiff offered the testimony of Freddie McNabb, Jr., Wiese’s superintendent at the Exxon job, to the effect that Wiese expended over 100,000 man-hours on the job; that no Exxon employees worked on the job; and that his employees were paid at a new-construction rate. He indicated that Wiese worked very closely with the Exxon people in determining the method to use for each of the tie-ins, and that Exxon was more familiar with the hazards. He stated that blinds furnished by Exxon were installed in the line by Wiese pipefit-ters. He had seen Wiese use seal plugs in similar applications prior to the accident. The plug used in the application that injured Lewis was furnished and installed by Wiese.

In response to the question, “Are you aware of any obligation on an Exxon employee to check the seal plug after it’s installed to make sure it’s installed properly?,” Mr. McNabb said:

“No, sir. Other than the fact they make a gas test at that point to see if the thing is leaking.”

McNabb further testified that Wiese went over the details of how the work was to be performed in advance of the performance and that what Wiese was going to be doing was gone over with the Exxon personnel. He stated that at any given point Wiese could stop work from being done if they suspected something was wrong. He said: “I’m sure that none of our people would want to see anyone get hurt.” This was a conversion project for which Wiese had to supply very little material. The job required about 100,000 man-hours, utilizing nine different crafts (about 170-180 persons). The particular job that Lewis was performing at the time of his injury was “a part of the isopropanol expansion project covered by the contract between Wiese and Exxon.”

Richard Gill, director of administrative services for Wiese, also testified for the plaintiff. In substance, he stated that “This project was handled as new construction.” The trial judge observed that Gill indicated that “Wiese supplied little if any new materials for this job.”

After reviewing this testimony, the trier of fact stated:

“This evidence convinced the Court that Exxon not only had the manpower and expertise available to construct the entire project but had done similar projects in the past. This Court feels that the work undertaken by Wiese was not new construction but the conversion of one process for another. Substantial materials were not necessary; only the required labor to change a manufacturing process from ethanol to isopropanol. See Reeves v. Louisiana & Arkansas Railroad Company, [sic] 282 So.2d 503 (La.1973). The burden of proof is upon the defendant to establish by a preponderance of evidence that the work being performed by Wiese was a part of its regular trade, business or occupation. The Court feels that Exxon has carried its burden in this case.”

LSA-R.S. 23:1061 provides, in part:

“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 defendant, 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.”

LSA-R.S. 23:1032 provides, in part:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease 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, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof. “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”

An employee of a contractor cannot maintain a tort action against the contractor’s principal for an accident that occurred during the course of work that was a part of the principal’s business; his exclusive remedy is in workers’ compensation. Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950); Traylor v. Shell Oil Company, 400 So.2d 342 (La.App. 4 Cir. 1981), writ denied, 405 So.2d 530 (La.1981); Moses v. Vulcan Materials Company, 388 So.2d 117 (La.App. 1 Cir. 1980), writ denied, 392 So.2d 1058 (La.1980); Malone-Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation Law and Practice, § 128, p. 263 (1980).

In Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061, 1068 (La.App. 3 Cir. 1977), the Court of Appeal set forth criteria for ascertaining whether a defendant was a statutory employer within the contemplation of LSA-R.S. 23:1061, as follows:

1) There must exist the relationship of principal and contractor;

2) There must be a contract between the principal and contractor for the execution by the contractor of the whole or a part of the work being undertaken by the principal;

3) The work which is the subject of the contract must be a part of the principal’s trade, business, or occupation; and

4) The plaintiff must be performing the contractual work at the time of his injury.

We believe that the foregoing criteria flow from the requirement of LSA-R.S. 23:1061 that the work being performed is part of the principal’s trade, business, or occupation. See Reeves v. Louisiana and Arkansas Railway Company, supra, where the Court held that a principal is not classified as a statutory employer if the work engaged in is a “new construction”, or is work not customarily performed by the principal or other employers similarly situated. See 282 So.2d at 508. In the Reeves case, the work being done at the time of the accident (construction of a new coking unit on the premises of the principal) was not a part of the principal’s business (it was primarily an operating or refining company). It never designed a coking unit or any comparable plant. It did not have the design capability or manpower availability for that particular type of work. Most of its new construction was contracted out to independent contractors. A majority of its mechanically-trained employees were engaged in maintenance work. See also Waller v. Farmland Industries, Inc., 392 So.2d 1099 (La.App. 3 Cir. 1980), writ denied, 399 So.2d 600 (La.1981); a new plant for a fertilizer manufacturer, which had been designed by and was being built by the contractor, was still in the process of being constructed, though nearing completion; the contractor’s injured employee was not a statutory employee of the principal.

In applying the above test for “statutory employment” the Court, in Thompson v. South Central Bell Telephone Company, 402 So.2d 799 (La.App. 4 Cir. 1981), found that the phone company was a statutory employer, observing as follows:

“It is clear that South Central Bell’s regular trade, business or occupation is that of providing telephone service to subscribers. It is also clear that a necessary part of this business is the construction and maintenance of underground telephone transmission lines. The laying of conduit to encase the underground transmission cables is obviously an essential and integral part of the telephone company’s business.
“The mere fact that South Central Bell does not do the excavation or the laying of the conduit itself with its own employees, but rather chooses to contract that portion of the work out does not prevent the labor from being part of its regular business. See Barnes v. Sun Oil Co., supra. [362 So.2d 761 (La.1978)]. As we held in Gray v. Louisiana Power and Light Company, 247 So.2d 137 (La.App. 4th Cir. 1971), writ refused, 259 La. 59, 249 So.2d 202 (1971), an electrical utility company’s decision to contract with another company for the construction of foundations for towers supporting overhead transmission lines did not preclude the electric company from being a ‘statutory employer’ of the contractor’s employee where the utility was authorized to manufacture and produce electricity and the means to transmit it to its users. “We are aware of various cases holding that construction of a ‘new facility’ is not part of the trade, business or occupation of the concern who is to use the facility. In Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973), the construction of a ‘coking unit’ was held not to be the regular business of the owner and operator of an oil refinery and chemical plant where it was not the owner’s business to engage in new construction of this type or magnitude and it had never designed a coking unit or any comparable plant. See also, Waller v. Farmland Industries, Inc., 392 So.2d 1099 (La.App. 3rd Cir. 1980) and the cases cited therein. Likewise, a major reconversion of one type of alcohol production facility to another type has been held not to be part of the regular business of a company where it did not regularly so convert the facilities of its chemical plant. See Blount v. Exxon Corp., 395 So.2d 355

(La.App. 1st Cir. 1981).

“The excavation of a street and laying of telephone conduit in our case, however, is not a ‘new construction’ within the meaning of the cited cases. Ours is not a case where a new plant is being constructed en toto for the principal or where the construction is not part of the principal’s regular business. Moreover, the telephone company did not rely wholly on the expertise of the contractor to design and construct the system. On the contrary, South Central Bell designed the conduit, ' drafted the excavation contract, and furnished Cifers with plans, specifications and materials, including the conduit, for performance of the work. The aforementioned cases are therefore distinguishable. “Under these circumstances, we conclude Thompson was injured while performing contractual work that was part of South Central Bell’s regular business.” [Footnote omitted.]

In Barnes v. Sun Oil Company, 362 So.2d 761 (La.1978), a welding company employee sued an oil company (Sun) for injuries sustained while repairing a gas flow line. The defendant was engaged in the exploration, drilling, production, transportation, manufacture, and marketing of oil, gas and other petrochemicals. The particular facility involved in the accident was used to engage in the production and processing of oil and gas through wells, compressor stations, heaters, pipelines, separation equipment, and other related equipment. The work in which the contractor and its employees were undertaking consisted of repairing and maintaining glycol units, separators, re-boilers, compressors, heaters, pumps, and valves, and maintaining and repairing gas lift and gas flow lines. The continuous maintenance and periodic repair of the gas flow lines was essential for oil and gas to flow from wells to the production facility (otherwise its purpose could not be fulfilled). All major oil companies performed this kind of work with their own employees. Formerly, the defendant oil company had also used its own employees to perform the services in question. However, due to economic feasibility, job-site location, number of work hours, and other related variables, the oil company contracted out this particular maintenance and repair work, including welding, fitting, changing, and salvaging pipe. There was also evidence of some supervisory function over the contractor’s work by the principal, and that the oil company continued to use its own employees to do similar work at other similar facilities. In finding that the principal was, under the circumstances, the statutory employer of the injured employee, the Supreme Court held:

“[I]t is not disputed that the work consisted of repair and maintenance services performed regularly as an essential and integral part of Sun’s business. The parties agree that Sun does not perform these tasks at Sweet Bay Lake with its own employees. However, this fact alone does not prevent the labor from being part of its regular business. The effect of La.R.S. 23:1061 is that the principal shall be considered the employer of the employees of the contractor engaged in work which is part of the regular business of the principal. Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972).”

We find that Blount v. Exxon Corporation, supra, is not apposite. The trial court in Blount had sustained the principal’s motion for summary judgment and this Court, finding that the evidence in the record failed to show that the principal “regularly engaged in the business of converting its production facilities from one type of unit to another”, reversed and remanded for further proceedings. The instant case was tried on the merits, and the trial court found that the principal, Exxon, did in fact regularly engage in the business of converting its production facilities from one type of unit to another type, such as was done in the present case, as a part of its trade, business or occupation of operating a chemical plant and refinery. On this issue, the trial judge said:

“The evidence in this record indicates that Exxon has done so in the past and can do so in the future whenever it so desires. The rebuilding of the burned 12-story EPLA process and the construction of the Aldox unit are two examples. When the economics of a given situation so dictate Exxon with its own employees and own resources will construct any project of any magnitude at this plant.”

We do not find that the trial court committed manifest error in making this factual finding; we will not disturb its finding. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Our review of the record convinces us that the evidence offered by Exxon sustains its burden of proof. The evidence of Exxon’s prior activities shows that the Wiese contract work was part of Exxon’s trade, business, or occupation within the meaning of LSA-R.S. 23:1061. Exxon’s business was the operation of a chemical plant and refinery, and it operated its business to include necessary maintenance and repair, renovations, expansions, modifications and conversions. The record reveals that Exxon had the design capability and the manpower availability to do this project. The evidence shows that Exxon did perform the same type of work with its own employees as part of its business. This conversion of an ethanol unit into an isopropanol unit was not a new construction. The project was not a redesign or reconstruction of Exxon’s facilities at this plant site; it was an upgrading of existing facilities. Moreover, the particular job that Lewis was performing at the time of the accident, i.e., welding a flange as part of an orifice run (metering device) was a job that Exxon would have done whether or not it undertook the conversion project, since it was necessary to meter the gas for accounting purposes. We find that the trial court correctly concluded that the work being done by plaintiff and other Wiese employees was a part of Exxon’s business, essential to the efficient operation of the plant. The activity in which Lewis was engaged was a part of the trade, business or occupation of Exxon within the meaning of LSA-R.S. 23:1061, with the concomitant result that Exxon was immune from tort liability to the plaintiff. See Brown v. Kaiser Aluminum and Chemical Corporation, 289 So.2d 524 (La.App. 1 Cir. 1973), writ denied, 293 So.2d 171 (La.1974).

Lewis also asserts that the trial court erred in finding that the injuries sustained by appellant were not the result of an intentional act within the meaning of LSA-R.S. 23:1032. On this point, the plaintiff contends that his claim on the basis of “intentional acts” was based on specific acts of negligence, which are set out in his brief on appeal, as follows:

“a. In improperly testing the 8" line for the presence of combustible gases;
“b. In improperly preparing the line for welding in that certain lines leading into the 8" line had not been disconnected or blanked off in the proper way nor were the proper blinds inserted therein;
“c. In furnishing a defective plug in that the breathing tube and hole were obstructed;
“d. Alternatively, in requiring petitioner to weld on a line containing hydrocarbons or other explosive mixtures with the use of a gas plug which was not necessary in the premises and in failing to open the line and steam it out prior to ordering petitioner to weld thereon which could have been done and in fact, was done after the accident;
“e. In failing to advise Exxon personnel, including the section supervisor, Robert D. Litt, and in failing to advise petitioner that in 1975 it had been determined that the use of gas plugs in welding operations on lines containing hydrocarbons was highly dangerous and hazardous because of a possible spark plug effect between the metal disc components of the plug and the interior wall of the pipe;
“f. In failing to establish proper safety procedures for the use of gas plugs in such welding process in the event the use of plugs was mandated because of special circumstances.”

Appellant Lewis then reviews the record in considerable detail by quoting extensively from the transcript of the testimony, particularly the testimony of Robert D. Litt. Lewis urges that from this evidence Exxon and Litt knew that the injuries to plaintiff were substantially certain to follow; that said defendants “deliberately and purposely engaged in a persistent course of conduct with full knowledge of the risks involved and in obvious and repeated disregard of the consequences.” The appellant then submits that:

“The evidence establishes beyond any doubt that Exxon intended to use a procedure involving the known risk that an explosion might occur. They intentionally did this, not once, but as a matter of routine. Ergo Exxon knew that an explosion was inevitable. Exxon also knew that if an explosion occurred, ‘controlled’ or not, there was a substantial likelihood of injury. Therefore Exxon generally intended, within the meaning of R.S. 23:1032, that there be an injury.” (Emphasis omitted.)

The trial court, relying upon Bazley v. Tortorich, 397 So.2d 475 (La.1981), found no merit in plaintiff’s assertions on this question. We agree. In his written reasons, Judge Shortess stated:

“Plaintiff presented no evidence from which this Court can infer that Litt or any other Exxon employee desired to injure plaintiff or that anyone from Exxon knew or was substantially certain that plaintiff would be injured as a result of the use of the plug. See Prosser Restatement of Torts, Section 8, page 32, ‘. . . the mere knowledge and appreciation of the risk short of substantial certainty is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. Apparently the line has been drawn by the court at the point where the known danger ceases to be only a foreseeable risk at which a reasonable man would avoid and becomes a substantial certainty.’ This seal plug had been used on many occasions in the past without a problem. While it was an unsafe use, it is impossible for this Court to characterize this improper use as an intentional tort under the rationale of Baz-ley.”

The controlling case on the meaning of “intent” is Bazley v. Tortorich, supra. In Bazley the plaintiff was struck and injured by a passing motor vehicle while getting on the back of a garbage truck in the course and scope of his employment. He claimed that the “intentional” acts of his co-employees in operating the truck without a horn, in disregarding certain mechanical standards, in failing to maintain a proper lookout, and in failing to stop in a place of safety without warning caused his injuries. There were no facts showing that his co-employees desired the consequences of their acts, or that such consequences were substantially certain to follow from such acts. The plaintiff in Bazley suggested that “intentional act” was to be equated with “voluntary act”, so that an injured employee could sue in tort for a voluntary act setting in motion events leading to his injury even if the resulting injury did not appear likely or was not apparent to the tortfeasor. The Bazley Court rejected this suggestion as follows:

“The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.”

Thus, we see that mere knowledge of, or appreciation of, a risk, short of substantial certainty, is not to be equated with intent. While the line between intentional act and negligent act may be a matter of degree, the courts have drawn the line at the point where the known danger goes beyond being only a foreseeable risk which a prudent person would avoid, and becomes a substantial certainty.

There is no evidence to show that Exxon intentionally selected the wrong procedure, or that these consequences were substantially certain to follow from the acts of plaintiff’s co-employees. In fact, Arbour testified:

“Let me say then, we would not have proceeded at all with this job if we felt there was any possibility of it not going right. That’s not our intent. At the time this job was planned and executed the people planning it had the utmost confidence that it was going to go successfully or they wouldn’t have done it. ...”

Next, Lewis contends that the trial court erred in failing to consider the issue of constitutionality of LSA-R.S. 23:1032.

It was expressly held in Bazley v. Tortorich, supra, that the exclusive remedy rule of LSA-R.S. 23:1032 does not violate the rights of an injured employee to substantive due process and equal protection of the laws, or other constitutional safeguards. Appellant does not seriously quarrel about the constitutionality of the exclusive remedy provisions of the act and the amending act as established by Bazley; however, he does attack their constitutionality insofar as they apply to him as an employee of an independent contractor seeking recovery from a negligent employee of the principal. In his argument, the appellant states that “Litt (principal’s employee) is immune to claims by Lewis (contractor’s employee), but Lewis is not immune to claims by Litt. None of the decisions of the Courts of Appeal or the Supreme Court including Bazley v. Tortorich, supra, concerning the constitutionality of Act 147 of 1976 have addressed this problem. Every such case has dealt with claims by an employee against an officer or employee of the same employer.”

The argument of appellant Lewis is premised on the assumption that he cannot sue Litt in tort, but that Litt could sue him in tort. The assertion that Litt could sue appellant in tort is not borne out by the law. Since Lewis is considered the “statutory employee” of Exxon, he and Litt are co-employees of Exxon. “Co-employees”, according to LSA-R.S. 23:1032, may not maintain a suit in tort against each other. This is the precise holding of the Court of Appeal, Third Circuit, in Johnson v. Alexander, 406 So.2d 1378 (La.App. 3 Cir. 1981). In Johnson, Vincent (the principal) contracted with Dupont (the contractor) to assist in laying firelines in the Continental plant. Plaintiff, an employee of Vincent, was injured when Alexander, an employee of Dupont, negligently handled a forklift. The Johnson Court concluded that the suit could not be maintained, stating:

“Alexander avers that since he is a ‘co-employee’ of the plaintiff by virtue of his statutory employer-employee relationship with plaintiff’s employer, the instant suit is barred by virtue of LSA-R.S. 23:1032 which prohibits suits in tort as between co-employees.
“Although LSA-R.S. 23:1032 and 1061 do not clearly provide that a statutory employee becomes a co-employee of all of the regular employees of the statutory employer, it appears to us that this status is necessarily intended by those cited sections of Louisiana’s Workmen’s Compensation Act.
“LSA-R.S. 23:1032 explicitly provides that the rights and remedies granted via the Louisiana Workmen’s Compensation Act to an injured employee are exclusive of all other rights and remedies (e.g. suits in tort) ‘... against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal... ’. However, the aforesaid statute does not provide for the particular factual situation presently before this court. In the instant case, a regular employee of defendant Alexander’s principal (also, plaintiff’s employer) is suing his employer’s statutory employee and such statutory employee’s general employer and its liability insurer. The language of LSA-R.S. 23:1032 provides for the more common situation where the statutory employee is injured on the job while in the employ of his special employer by providing that the injured statutory employee can sue neither his statutory employer nor the regular employees of his statutory employer in tort. For example, in the instant case, Vincent is the regular employer of Johnson and the principal of Alexander. Clearly, if Alexander had been hurt he could not bring a tort suit against Johnson because under Section 1032 the rights and remedies granted under the Workmen’s Compensation Act are exclusive of all other rights and remedies against an ‘employee of his employer or principal’ However, the aforesaid statute is silent in regard to the right of a regular employee of a principal to sue the principal’s statutory employees in tort. Although as far as we have been able to determine, this particular issue is res novo, in our view it would be incongruous to hold that the provisions of LSA-R.S. 23:1032 would bar suits in tort by a statutory employee against the regular employees of the principal but would not bar suits in tort by the regular employees of the principal against statutory employees of the principal. Thus, we conclude that when an employee acquires the status of a statutory employee by application of the provisions of LSA-R.S. 23:1061, he becomes a co-employee vis-a-vis the regular employees of the principal within the intendment of Section 1032. Therefore, we determine that since Alexander was a statutory employee of plaintiff’s employer, Vincent, he, thus, became a co-employee of Johnson. Since the explicit language of LSA-R.S. 23:1032 prohibits suits in tort as between co-employees, we conclude that the plaintiff may not maintain the instant suit against Alexander.” (406 So.2d at 1385).

We thus conclude there is no merit in Lewis’ contention that LSA-R.S. 23:1032, as amended, is unconstitutional.

The intervenor’s suit and appeal, which are contingent upon the plaintiff’s right to recover, must necessarily fail also. Bell v. Carolina Casualty Insurance Company, 227 So.2d 171 (La.App. 2 Cir. 1969), writ refused, 255 La. 151, 229 So.2d 733 (1970).

We now turn to Exxon’s contention on appeal that Wiese is liable to Exxon for its cost of defense under their indemnity agreement. The trial court found that Wiese was not liable because of the negligence of Exxon and its employee, Litt. Basically, Exxon’s argument is that the indemnity agreement only excludes those claims which are caused by Exxon’s sole negligence, not by its concurrent negligence. The indemnity agreement, in pertinent part, provides:

“Contractor shall defend, indemnify and save Owner, its officers, employees, agents and representatives harmless from all claims for injuries to or death of any and all persons, including without limitation, employees, agents and representatives of Contractor or its subcontractors, arising out of or in connection with or by reason of work done by Contractor, its employees, agent, representatives, or subcontractors under this contract, expressly excepting claims for injuries or death caused by the sole negligence of Owner, its officers, employees, agents, and representatives.”

The negligence of Exxon and Litt is established by the record. Litt testified that it was his decision to use the seal plug. The expert evidence, particularly that of Dr. Mehdy Sabbaghian, a mechanical engineer, convincingly shows that under the circumstances of the instant case it was negligence to use that plug. On the question of the negligence of Exxon and Litt the trier found:

“The Court feels that Exxon and its supervisor, Robert D. Litt, were guilty of negligence or fault which caused the damage sustained by Lewis. Exxon is a multi-national corporation, probably the largest in the world. It has tremendous resources available to it. It was ludicrous for Exxon to permit the technique that was used in this case within its plant. The plug used was apparently sold and possibly manufactured by the Tyler Pipe Industries, Inc. Robert Blakely, Tyler’s district sales manager, called the plug a wing nut test plug. He indicated that this plug was used by plumbers and sold in plumbing supply houses. This test plug was designed for use to verify whether the welds in sewer lines had been properly made. It was not designed for use in a hydrocarbon environment with combustible materials. The seal plug theory may have been a good one but to properly implement it requires the use of [of] plug designed for the chemical industry. A plumber’s helper won’t do.”

There was no manifest error in this finding. There is ample evidence in the record to support the conclusion that the accident was caused by the negligence of Exxon and its employee, Litt.

The trial court held that the quoted language in the agreement excludes indemnity for the consequences of Exxon’s negligence. We agree; Exxon was at fault. Therefore, under the express language of the indemnity agreement, there can be no indemnification.

An indemnity agreement whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed; such agreement will be construed so as not to indemnify one against losses resulting to him through his own negligence, unless the agreement, in unequivocal terms, expresses an intention to indemnify against the indemnitee’s own negligence. Strickland v. Nutt, 264 So.2d 317 (La.App. 1 Cir. 1972), writ refused, 262 La. 1124, 266 So.2d 432 (1972); Breaux v. Rimmer & Garrett, Inc., 320 So.2d 214 (La.App. 3 Cir. 1975). The present agreement does not provide indemnification to Exxon for the consequences of its sole negligence. Rather, the agreement expressly excepts claims for damages caused by the sole negligence of Exxon. Therefore, it cannot recover its attorney fees. See Southern Pacific Transportation Company v. National Molasses Company, 396 So.2d 451 (La.App. 4 Cir. 1981).

Nevertheless, Exxon likens the in-demnitor’s duty to defend to that of an insurer’s duty to defend, and urges us to accept the same test: the test to determine an insurer’s duty to defend is to examine the petition under the assumption that all allegations contained therein are true; and, if, upon such examination there appears to be coverage under the policy and liability to the plaintiff, the insurer of the defendant is obligated to defend, regardless of the ultimate outcome of the case. Only if the policy unambiguously excludes coverage does the insurer not owe the duty to defend. See West Brothers of DeRidder, Louisiana, Inc. v. Morgan Roofing Company, Inc., 376 So.2d 345 (La.App. 3 Cir. 1979).

In the instant case it is clear from the language of the agreement that the parties contemplated that the contractor was to reimburse the principal only after liability had been determined and only in the event the liability did not result from the principal’s sole negligence. This situation cannot be equated with the situation arising under an insurance policy requiring the insurer to defend lawsuits against the insured. Obviously, the parties did not intend that where Exxon claims the accident was at least concurrently caused by Wiese that Wiese, under the agreement, is forced to side with Exxon and establish its own negligence. Polozola v. Garlock, Inc., 376 So.2d 1009 (La.App. 1 Cir. 1979), cited by Exxon on this question, is factually distinguishable. In Polozola, the Court found that the contractor had agreed to indemnify the principal for the consequences of the principal’s own negligence (sole or concurrent). That is not the present case; here Wiese did not obligate itself to indemnify Exxon for the consequences of Exxon’s own negligence. We hold that this contract does not unequivocally provide for indemnity to Exxon for its own negligence. The courts have not permitted the enforcement of an intention to be indemnified for the consequences of one’s own negligence in the absence of a specific articulation to that effect. Breaux v. Rimmer & Garrett, Inc., supra.

For the reasons assigned, we affirm the judgment appealed. Costs of this appeal are to be borne equally by Vernon L. Lewis and Exxon Corporation.

AFFIRMED.

ON APPLICATIONS FOR REHEARING.

Rehearings Denied. Appellant’s application for rehearing raises no new issues which were not briefed and fully considered by this Court in its original opinion. It is true that Thompson v. South Central Bell Telephone Company, 402 So.2d 799 (La.App. 4 Cir. 1981), which this Court cited on the question of “statutory employer” has been reversed and remanded by our Supreme Court, 411 So.2d 26 (La.1982). However, wholly disregarding Thompson, we adhere to our original decision.

In the case at bar, the suit was tried on the merits, and the defendant presented enough evidentiary facts to convince the trier of fact that the work performed by H. E. Wiese, Inc., the primary employer of Vernon Lewis, was part of the trade or business of Exxon Corporation.