author: PAUL A. BONIN, Judge. McKAY, J., LOMBARD, J.,

text:
    Max PREJEAN v. MAINTENANCE ENTERPRISES, INC., et al.
    No. 2008-C-0364.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 25, 2009.

      Edward J. Walters, Jr., Darrel J. Papil-lion, Julie J. Baxter, Moore, Walters, Thompson, Thomas, Papillion & Cullens, Baton Rouge, LA, for Max Prejean.
    Richard A. Cozad, Franklin H. Jones III, McAlpine & Cozad, New Orleans, LA, for Murphy Oil U.S.A., Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

bMax Prejean, an employee of Maintenance Enterprises, Inc. (“MEI”) filed a suit for damages against Murphy Oil U.SA., Inc. (“Murphy Oil”), claiming that he was injured while working at its refinery in Meraux, Louisiana. Murphy Oil contends that it and MEI contracted away Mr. Prejean’s tort rights against Murphy Oil. Mr. Prejean asserts that the contract’s provisions are invalid. He also argues that even if the provisions of the contract are valid, the work he was performing at the refinery would not result in Murphy Oil escaping tort liability to him. For the reasons which follow, we agree and affirm the trial court’s denial of Murphy Oil’s motion for summary judgment

History of the Case

This matter was previously before this Court on an application for supervisory writ, which was denied by a five-judge court. After granting Murphy Oil’s application for supervisory review, the Louisiana Supreme Court summarily remanded the application for briefing, oral argument, and opinion. Prejean v. Maintenance Enterprises, Inc., 08-1113 (La.9/19/08), 992 So.2d 970. In its application for supervisory writ, Murphy Oil requested review of the trial court’s judgment denying its motion for partial summary judgment in which it sought to be recognized as the statutory employer Mr. Prejean.

On April 13, 2005, Mr. Prejean filed a Petition for Damages against MEI, Murphy Oil, and Plant Performance Services, LLC. The lawsuit arose out of an August 25, 2004 incident wherein Mr. Prejean sustained an eye injury while working as an employee of MEI on a reconstruction project at Murphy Oil’s refinery.

On October 20, 2006, Murphy Oil filed a motion for partial summary judgment on Mr. Prejean’s negligence claim against it seeking to be declared Mr. Prejean’s statutory employer, thereby barring any negligence claim against it. The ground for its motion was a written contract between Murphy Oil and MEI which provided that MEI would perform reconstruction work on the ROSE Unit, which was damaged as a result of a fire in 2003. The Murphy Oil-MEI contract included language stating that Murphy Oil was to be the statutory employer of MEI’s employees. Murphy Oil argued that Mr. Prejean’s exclusive remedy was workers’ compensation as provided in La. R.S. 23:1061. Mr. Prejean filed an opposition to Murphy Oil’s motion arguing that the Murphy Oil-MEI contract did not entitle Murphy Oil to statutory employer status because the language of the contract limited Murphy Oil to paying compensation “if the immediate employer, Contractor or subcontractor ... is unable to meet their obligation under the ^Louisiana Compensation Statute for work or services that is performed under this agreement.”

A hearing was held on Murphy Oil’s motion on March 9, 2007 after which the trial court took the matter under advisement. On February 28, 2008, the trial court rendered judgment denying Murphy Oil’s partial motion for summary judgment with written reasons. On March 10, 2008, Murphy Oil filed a Notice of Intent to Apply for Supervisory Writ.

Murphy Oil filed its writ application with this Court on March 31, 2008. No opposition response was filed by Mr. Prejean. We denied the writ on May 1, 2008. The Louisiana Supreme Court subsequently remanded the matter to this Court on September 19, 2008.

Relevant Facts

In the summer of 2003, the ROSE unit of Murphy Oil’s Meraux refinery was damaged by fire. MEI was contracted by Murphy Oil to rebuild the ROSE unit, to provide the material, labor, supervision and rental equipment necessary for the erection, and to assure that the finished work was safe and suitable for operation.

On October 6, 2003, Murphy Oil and MEI entered into a contract for services which recited that Murphy Oil was to be a statutory employer in accordance with La. R.S. 23:1031, 1032, or 1061, but would be liable to pay workers’ compensation only if the immediate employer, contractor or subcontractor is unable to meet its obligation to workers (Article 5.5 of the Agreement).

On August 25, 2004, Mr. Prejean, an employee of MEI, was injured when a plug blew out of a pipe, striking him in the face. After his injury, Mr. Prejean received workers’ compensation from his employer, MEI.

14Mr. Prejean filed a Petition for Damages seeking general damages from Murphy Oil pursuant to his argument that the contract cited above did not entitle Murphy Oil to the protections of La. R.S. 28:1061 because the wording of the contract limited its liability to situations only when the direct employer did not pay workers’ compensation to the employee.

The trial court, in written reasons for judgment dated February 28, 2008, denied Murphy Oil’s motion, stating in part as follows:

The contract between Murphy and MEI does not create a presumption that Murphy is a statutory employer under La. R.S. 23:1061. The statute grants both a benefit and a burden; a statutory employer is shielded from tort liability toward its statutory employee in return for providing worker’s [sic] compensation to them. By the terms of its agreement with MEI, Murphy has deviated substantially from the statutory scheme by abrogating its responsibility to pay Mr. Prejean compensation. The agreement requires Murphy pay compensation only if MEI is unable to do so. Such an arrangement is contrary to the plain requirement of the statute; a statutory employer must pay compensation. The employer may then seek indemnity from its contractor.

We are now called upon to conduct a de novo review of the record, in light of the relevant law, to determine whether the trial court’s judgment denying Murphy Oil’s Motion for Partial Summary Judgment was correct.

Standard of Review on Motion for Partial Summary Judgment

An appellate court reviews a district court’s decision to deny a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Ramos v. Tulane Univ. of La., 06-0487, p. 3 (La.App. 4 Cir. 1/31/07), 951 So.2d 1267, 1269, citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/05/94), 639 So.2d 730, 750. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the ^affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to summary judgment as a matter of law.” La.Code Civ. Pro. art. 966(B). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. La. Code Civ. Pro. art. 966(A)(2).

1

Statutory Employer

Discussion of La. R.S. 23:1061: Statutory Employer

The determination of statutory employer status is a question of law for the court to decide. Ramos, supra, 06-0487 at p. 3, 951 So.2d at 1269, citing Trent v. PPG Indus., Inc., 03-1068, p. 7 (La.App. 3 Cir. 2/04/04), 865 So.2d 1041, 1047.

Under the Louisiana Workers’ Compensation Act, La. R.S. 23:1021, et seq., an employee injured in an accident while in the course and scope of his employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer and, thus, may not sue his employer in tort. Ramos, at p. 3, 06-0487, 951 So.2d at 1269, citing Griffin v. Wickes Lumber Co., 02-0294, p. 4 (La.App. 1 Cir. 12/02/02), 840 So.2d 591, 594. The Louisiana Workers’ Compensation Act applies both to a direct employer/employee relationship as well as to a statutory employer/employee relationship. Id.

The doctrine of “statutory employer” is codified in La. R.S. 23:1061 and was amended in 1997 to provide that when a valid written contract recognizes the existence of a statutory employer relationship, “there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees that can only be overcome by showing the work performed is not an integral part of or essential to the ability of the principal to generate that | (¡principal’s good, products, or services.” La. R.S. 23:1061(A)(3) (emphasis added). Specifically, La. R.S. 23:1061 provides:

A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor,” for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protection of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under the 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 employer under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship exists whenever the services to work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who ^independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

La. R.S. 23:1061.

Louisiana’s Statutory Employer Doctrine has a long history that evolved from both case law and legislative amendments. The history is described in detail in Everett v. Rubicon, 04-1988, pp. 3-12 (La.App. 1 Cir. 6/14/06), 938 So.2d 1032, 1034-41, unit denied, 06-1785 (La.10/13/06), 939 So.2d 369. Without reciting the entire legal history of the statute, it is important to note that in 1997, the legislature amended La. R.S. 23:1061 into its present form. The 1997 legislative amendment, for the first time, provided a definition as to what work should be part of the “principal’s trade, business, or occupation.” Id. at p. 10, 938 So.2d at 1040-41. The amendment further provided that when the written contract between the principal and a contractor recognized a statutory employer relationship, there shall be a rebuttable presumption of such a relationship between the principal and the contractor’s employees, whether direct or statutory employees. Id. In addition to these substantive changes in the statute, the legislature specifically noted its intention to legislatively overrule the statutory employer tests stated in the Louisiana Supreme Court decisions in Berry v. Holston Well Serv., Inc., 488 So.2d 934, 937 (La.1986) and Kirkland v. Riverwood Int’l USA, Inc., 95-1830, pp. 7-8 (La.9/13/96), 681 So.2d 329, 333.

The Louisiana Supreme Court has not yet addressed the effect of the 1997 amendment on the statutory employer standard. However, several appellate courts have addressed the amendment, finding that the amendment established a more |sIiberal standard for statutory employer determination. Everett, supra, 04-1988 at p. 10, 938 So.2d at 1040.

Louisiana Supreme Court Justice Victory, in a dissent unrelated to the subject issue, gave a succinct explanation as to how to apply the 1997 amended version of La. R.S. 23:1061. Dean v. Southmark Construction, 03-1051 (La.7/6/04), 879 So.2d 112. He stated as follows:

[T]he 1997 amendments to La. R.S. 23:1061 set forth two specific circumstances under which a statutory employer will be liable for workers’ compensation benefits to a statutory employee. The first is the “two-contract” theory under La. R.S. 23:1061(A)(2), under which (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters a subcontract for all or part of the work performed.
The second basis for finding a statutory employer-employee relationship is found in La. R.S. 23:1061(A)(3). By virtue of the 1997 amendments, except in cases under the “two-contract” theory, a statutory employer-employee relationship will be found to exist under La. R.S. 23:1061(A)(3) only when: (1) the work is part of the principal’s trade, business, or occupation, which in turn is defined as work which is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services and (2) there is a written contract between the principal and the contractor which recognizes the principal as a statutory employer. Johnson, Louisiana Civil Law Treatise, Vol. Ik, Workers’ Compensation Law and Practice, 4th Ed., 2002, Sec. 363, p. 1780. The 1997 amendments clearly state that such a relationship under La. R.S. 23:1061(A)(3) “shall not exist ... unless there is a written contract ... which recognizes the principal as a statutory employer.”

Dean, 03-1051, dissent, pp. 1-2, 879 So.2d at 119.

|flWhiIe Murphy Oil’s motion, if granted, would not result in the termination of the litigation, it would result in a dismissal with prejudice of Murphy Oil as a party defendant. La. C.C.P. arts. 966(A)(1) and 1915(A)(1).

Discussion: The Philosophy Underlying Statutory Employer Status

As stated by the Louisiana Supreme Court in Roberts v. Sewerage & Water Bd. of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, 345, “The dominant purpose of the [workers’ compensation] movement to adopt compensation laws in the early decades of this century was not to abrogate existing tort remedies that afforded protection to workers. Rather it was to provide social insurance to compensate victims of industrial accidents .... ” (emphasis added).

“Workmen’s Compensation Laws are statutory attempts at social adjustment. The adjustment consists of shifting the burden of industrial accidents from the employee, upon whom it has rested heretofore, onto the employer who in turn distributes it among the consumers.” Progressive notions motivated earlier generations to insulate manual laborers from catastrophic financial losses caused by on-the-job injuries at the cost of their pursuing tort actions against their employers. The original concept of “statutory employer” was for the protection not of the principal, but of the employee. Wex S. Malone stated in his treatise:

In the absence of some special provisions in the Workmen’s Compensation Act it would be possible for an employer to avoid his compensation responsibility by interposing an independent contractor between himself and his employee. This, of course, would not deprive the employee of protection so long as the intermediary contractor was solvent or protected by insurance. However, the possibility of using an impecunious middle man as a means of dodging compensation remains, and it was necessary to prevent this by subjecting certain principals to the compensation claims of their contractor’s employees. A provision of this type is found in most | ^compensation acts, and the principal who is affected thereby is commonly known as a statutory employer.

Wex S. Malone, Louisiana Workmen’s Compensation Law and Practice 140-41 (West Publ.1951) (emphasis added).

The Louisiana Legislature has determined that a “principal” may become a statutory employer by contract. While the Legislature acts within its bounds to provide tort immunity to employers, whether they are direct employers or principals, see Forchia v. Browning-Ferris Indus. of Louisiana, 629 So.2d 1238, 1239 (La.App. 4 Cir.1993), the courts lack authority to extend that tort immunity beyond explicit statutory language of La. R.S. 23:1061, which imports the protections of La. R.S. 23:1032. See Scott v. Pontchartrain Materials Corp., 98-1611 (La.App. 4 Cir. 8/12/98), 717 So.2d 682, writ denied, 98-2398 (La.11/20/98), 729 So.2d 555.

The issue in this case is whether the terms and conditions of the contract, which purports to confer the statutory benefits of being an “employer”, i.e. immunity from tort liability, may nonetheless disregard the statutory obligations of the employer.

Workers’ compensation statutes are in derogation of the universal right to sue for damages provided in La. C.C. art. 2315, et seq. Thus we must construe strictly and narrowly the benefit conferred by the status that insulates a statutory employer from paying tort damages to a victim of injurious negligence or dangerous items in the environment of the workplace who, but for his employment status, would be free to sue for tort damages.

This Court in Scott set forth the correct legal principle which ought to guide the Court’s decision:

InThe immunity provision of La. R.S. 23:1032 must be narrowly construed. Stelly v. Overhead Door Co. of Baton Rouge, 94-0569, p. 4 (La.12/9/94), 646 So.2d 905, 910. “Every presumption should be on the side of preserving the general or delictual rights of an injured worker against the actual wrongdoer, in the absence of explicit statutory language limiting or excluding such rights.” Roberts v. Sewerage & Water Bd. of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, 346.

Scott, supra, 1998-1611 at p. 4, 717 So.2d at 684.

On the one hand, tort immunity is “narrowly construed” and, on the other hand, tort liability is presumed in the absence of explicit statutory language. One part of the contract between Murphy Oil and MEI, as noted above, explicitly states that “this contract recognizes that Company [Murphy Oil] shall be considered the statutory employer of Contractor’s [MEI] employees and is subcontractors who provide work or services under this Contract in accordance with Louisiana R.S. 23:1031 or R.S. 23:1061.” Article 5.5 of that contract, however, allows Murphy Oil to pay only if the employer or contractor “is unable” to pay: a significant escape hatch and evasion of solidary liability for Murphy Oil.

Just as we must consider all parts of the MEI-Murphy Oil contract, we must consider Parts (A)(1) and (A)(3) of La. R.S. 23:1061 in pari materia. See La. Civ. Code art. 13. The contract seeks to create what its own terms prohibit; one part contradicts ipso facto another part. To create the presumption that a statutory employer relationship exists under La. R.S. 23:1061(A)(3), it is not sufficient to designate a party as a statutory employer in a contract if the terms of that contract allow that party to escape the liability inherent in such a designation. Affording Murphy Oil the protection of statutory employer status under the terms of this contract thwarts the primary purpose of the Workers’ Compensation Law, La. R.S. 23:1021, et seq. When the language of a statute is susceptible of different 112meanings, it should be interpreted as having the meaning that best conforms to the purpose of the law. La. Civ.Code art. 10. And the Workers’ Compensation Law is intended to compensate the injured worker.

We ought, therefore, to begin our consideration of this matter with a presumption that Murphy Oil, which is not the direct employer, is not immunized from tort liability to Mr. Prejean, and that Murphy must establish as a matter of law that there exists “explicit statutory language limiting or excluding” the tort rights of Mr. Prejean against it.

The Legislature has effectively determined that the liability of the principal, who is a statutory employer, and the direct employer is solidary as to the injured worker. La. Civ.Code arts. 1786 and 1790, and La. R.S. 23:1061; Bowens v. General Motors Corp., 608 So.2d 999, 1003 (La. 1992). This has long been the law in Louisiana:

Under the provisions of Section 6, the term employer will also include a principal who hires an independent contractor or a principal contractor who lets to a sub-contractor. Such a principal is liable in solido with the immediate employer and is himself a remote employer. It is optional with the employee to sue either the immediate employer or the principal and they are liable to pay compensation in either case. The purpose of the provision was to protect the employees of sub-contractors who were not financially responsible and at the same time prevent employers from relieving themselves of liability by doing through independent contractors what they could otherwise do through direct employees.

Marian Mayer, Workmen’s Compensation Law in Louisiana 35-36 (LSU Press, 1937) (emphasis added).

The injured worker is the obligee to whom the obligation of benefits is immediately and unconditionally owed by either or both. Neither a direct employer nor a statutory employer may, as to the injured worker, contract away its solidary obligation: “No contract, rule, regulation, or device whatsoever shall h.¡operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.” La. R.S. 23:1033.

Of course, none of this precludes either the statutory employer or the direct employer from contracting as between themselves rights of contribution or indemnification. See, e.g., La. R.S. 23:1031(B) and 1063(A).

The Validity of Article 5.5 of the Murphy Oil-MEI Contract

The question now turns to the interpretation of the contract, which purports to confer tort immunity upon Murphy Oil while, simultaneously, relieving it of its solidary obligation to Mr. Prejean, if it is his statutory employer. The interpretation of a contract is a question of law. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741. The contractual provision at issue, Agreement Article 5.5, states:

5.5 Statutory Employer

This contract recognizes that Company [Murphy Oil] shall be considered the statutory employer of Contractor’s [Maintenance Enterprises’] employees and its subcontractors who provide work or services under this Contract in accordance with Louisiana R.5. [sic] 23:1031 or R.5. [sic] 23;1061 [sic]. Thus Company is to be granted the exclusive remedy protection of Louisiana R.S. 23:1032 and it shall be liable to pay compensation benefits if the immediate employer, Contractor or its subcontractors as applicable, is unable to meet their financial obligation under the Louisiana Workers’ Compensation Statute for work or service that is performed under this Agreement. The parties agree that the recognition of the Statutory Employer status is made pursuant to R.S. 23:1061 of the Louisiana Workers’ Compensation statute and that Company is not the actual employer of any of the employees of Contractor or any of its subcontractor [sic]. Further, that the company has no control or involvement in the hiring, firing, or direct supervision or direction of any such employees. The work to be performed under this Contract is an integral part of or essential to the ability of Company to generate its good, products or services.

(Emphasis added).

1 uThis contract, or perhaps more appropriately named “device”, inserts an impermissible and unlawful condition to relieve Murphy Oil, the purported statutory employer, of its direct obligation to the injured worker. This contract, or device, does not confer a benefit, i.e. an unconditional right to immediately prosecute a claim for workers’ compensation benefits against either Murphy Oil or MEI, or both. The contract as written restricts and conditions any rights which Mr. Preje-an might have against a “true” statutory employer for immediate and unconditional payment of benefits because it requires Mr. Prejean to prove that his direct employer was “unable” to pay him benefits. It disrupts the statutory scheme by inserting a suspensive condition not recognized in the law which is favorable to Murphy Oñ and unfavorable to Mr. Prejean. La. C.C. art. 1767. Such a contract, if held valid, would place an onerous burden on an injured worker to discover and prove the financial or other reasons the direct employer ascribes to being “unable to pay” him compensation benefits, possibly involving lengthy litigation and very likely depriving that worker of medical care and weekly benefits under the workers’ compensation statutory scheme.

Sanctioning this contract as an appropriate device to immunize a principal when it withholds conferring proportional and correlative benefits to the injured worker invites precisely the buck-passing and refusal to pay benefits observed in Ryan v. Blount Brothers Construction, 40, 845 (La. App. 2 Cir. 4/19/06), 927 So.2d 1242, unit denied, 06-1219 (La.9/15/06), 936 So.2d 1272. In Ryan the statutory employer and the direct employer disputed between themselves which one owed compensation benefits and both withheld payment of benefits to the injured worker. The language of the contract approved here today only encourages such mischief as the Second Circuit recently encountered. The Legislature’s | ^authorization to afford a rebuttable presumption of tort immunity to Murphy Oil would be realizable if the contract at issue excluded the language of the Murphy Oil-MEI contract, Article 5.5, highlighted above.

Murphy Oil has expressed reliance upon several cases for the proposition that the disposition which we set forth has been previously rejected by other courts. The decision in Smith v. Marathon Ashland Petroleum LLC, 04-517 (La.App. 5 Cir. 10/26/04), 887 So.2d 618, does not conflict with this result. The contractual language is clearly and unambiguously regulating the rights and responsibilities of the statutory and direct employers as between themselves, which is permissible. Unlike the instant case, the contract in Smith did not establish a payment regime to the injured worker which is contrary to law. Indeed, Smith expresses the notion that before a determination of a “rebuttable presumption” is made, there should first be a finding of a “valid written contract.” Id. at p. 7, 887 So.2d at 617 (emphasis added). Smith supports the view that if the contractual provision purporting to immunize the principal is invalid, then the inquiry is brought to a close. Johnson v. Tennessee Gas Pipeline Company, 99 F.Supp.2d 755, 758 fn. 3 (E.D.La.2000) is another case where the contractual language relative to payments of benefits only modifies the obligations among the obli-gors, and not toward the obligee, the injured worker.

In Everett, supra, 04-1988 at p. 13 fn. 7, 938 So.2d at 1042 fn. 7, the First Circuit decided a case with contractual language virtually identical to the contractual provision in the Murphy Oil and MEI contract. However, the invalidity, unlawfulness or unenforceability of that provision was neither examined nor considered by the First Circuit in Everett.

11 «Therefore, we conclude that the provision of the contract which purports to confer tort immunity to Murphy Oil while modifying, and even renouncing, the unconditional obligation of solidary liability to Mr. Prejean is invalid. Because Murphy Oil did not accept unconditionally, implicitly or explicitly, the obligation of a statutory employer, it cannot obtain the benefit of a statutory employer, which is tort immunity. In order for a contract to validly confer the status of statutory employer upon a principal, its terms and conditions cannot relieve a party of the statutory obligations which arise from such status unless the Legislature explicitly provides otherwise.

The temptation to enter the bargain between Murphy Oil and MEI is great; the principal limits in advance its liability for causing physical injury to another by bargaining not with that person, a circumstance which is generally prohibited in law, but with that person’s employer. The employer for its part trades nothing of its own; its only trade is its employee’s right to damages. The presumption in favor of the preservation of Mr. Prejean’s general and delictual rights as an injured worker against Murphy Oil is not overcome.

Factual Issues Regarding Mr. Prejean’s Duties Affecting Murphy Oil’s “Ability to Generate its Goods, Products or Services” Precluding Murphy Oil’s Dismissal by Partial Summary Judgment

Although we are not required to examine the record further after we have found that the trial court properly denied Murphy Oil’s motion for partial summary judgment, nevertheless we note that the presence of factual issues concerning the |17work Mr. Prejean was performing at the time of his injury remain to be resolved by the trier of fact.

Mr. Prejean argues that the work he was performing for MEI, which consisted of cleanup, repair, and reconstruction of fire-damaged equipment, was not an integral part of or essential to the ability of Murphy to produce and distribute petroleum products. Even if the MEI-Murphy Oil contract in dispute were to establish a rebuttable presumption of a statutory employer relationship (which we today hold that it does not), whether Mr. Prejean can overcome that presumption constitutes an issue of fact which suffices to preclude summary judgment in this case. See La. Code Civ. Pro. art. 966; South Central Bell Tel. Co. v. Sewerage & Water Bd. of New Orleans, 94-1648 (La.App. 4 Cir. 3/16/95), 652 So.2d 1090, 1092-93. Accordingly, the trial court properly denied Murphy Oil’s motion for partial summary judgment.

DECREE

For the foregoing reasons we affirm the trial court’s denial of Murphy Oil’s motion for partial summary judgment.

AFFIRMED.

MCKAY, J., concurs.

TOBIAS, J., dissents.

LOMBARD, J., dissents and assigns reasons.

McKAY, J.,

concurs.

hi respectfully concur with the majority opinion and would affirm the trial court’s judgment. A genuine issue of material fact exists as to whether the work done by Mr. Prejean for MEI was an integral part of or essential to the ability of Murphy to produce and distribute petroleum products. Accordingly, summary judgment is not appropriate in this case.

TOBIAS, J., dissents.

hi respectfully dissent for the reasons assigned by Judge Lombard.

LOMBARD, J.,

dissents and assigns reasons.

hi respectfully dissent from the majority opinion because in my view, the trial court’s judgment denying Murphy Oil’s Motion for Partial Summary Judgment was incorrect and should be reversed.

As stated by the majority, this matter was previously before our Court on an application for supervisory writ, wherein Murphy Oil requested review of the trial court’s judgment denying its Motion for Partial Summary Judgment on the basis that it was the statutory employer of Mr. Prejean at the time of his accident. After we denied the writ, the Louisiana Supreme Court remanded the matter back to us for briefing, oral argument, and opinion, Prejean v. Maintenance Enterprises, Inc., 08-1113 (La.9/19/08), 992 So.2d 970, resulting in our taking a second look at the issue.

After a thorough review of the contract at issue, the relevant facts, and the applicable law, in my opinion, Murphy Oil is entitled to summary judgment because: (1) the language contained in the Murphy Oil-MEI contract is sufficient to satisfy La. R.S. 23:1061, thus creating the presumption that Murphy Oil was the statutory employer of Mr. Prejean at the time of his accident, and (2) Mr. Prejean did not come forth with evidence to overcome this presumption by showing thatj2the work he was performing at the time of his accident was not an integral part of, or essential to, the ability of Murphy Oil to generate its goods, products, or services.

Although the majority has correctly set out the law on statutory employer, it has imposed an additional requirement under La. R.S. 23:1061 that the statutory employer be primarily liable for workers’ compensation benefits. The trial court made this same error and found that the wording of the contract wherein Murphy Oil was responsible to pay compensation “if the immediate employer ... is unable to meet their obligation under the worker’s [sic] compensation statute ...” was a substantial deviation from the statutory scheme because it “abrogated its responsibility to pay Mr. Prejean compensation.” According to the trial court, such an arrangement was “contrary to the plain requirement of the statute; a statutory employer must pay compensation.”

I disagree with the majority and with the trial court that this additional requirement exists under La. R.S. 23:1061. I find that the language of the subject Murphy Oil-MEI contract is sufficient to satisfy the requirements of La. R.S. 23:1061(A)(3). In my view, La. R.S. 23:1061 does not require that the principal employer be primarily liable for compensation, just that it be liable for compensation. Additionally, no case law requires that the principal employer be primarily liable for compensation, and similar contract language in other cases upheld motions for summary judgment filed by the statutory employer.

The holding of the Louisiana Supreme Court in Bowens v. General Motors Corp., 608 So.2d 999 (La.1992), also supports the position that the Murphy Oil-jMEL contract is sufficient to satisfy La. R.S. 23:1061. In Bowens, the Court found that the direct employer and statutory employer were solidarily liable for compensation. Thus, under La. R.S. 23:1061 or La. R.S. 23:1063, the employee is entitled to seek compensation from the principal contractor or his immediate employer, or both as he chooses. Id. at 1003; see also Ryan v. Blount, 40,845 (La.App. 2 Cir. 4/19/06), 927 So.2d 1242. The indemnity clause, however, has the effect of finally imposing the loss upon the employee’s immediate employer. Id.

The Murphy Oil-MEI contract states in writing that Murphy Oil will be liable for compensation if the employee’s immediate employer is unable to meet its obligation under the Louisiana Workers’ Compensation statute. Thus, Mr. Prejean had recourse first against his employer, MEI, which did in fact pay him workers’ compensation benefits. However, had MEI not paid workers’ compensation benefits, the Murphy Oil-MEI contract plainly stated that Murphy Oil would pay the compensation benefits. Therefore, Mr. Prejean had a contractual agreement with both his employer, MEI, and his statutory employer, Murphy Oil, that compensation benefits would be paid to him in the event he was injured. The only effect of Murphy Oil specifying that it would be liable to pay compensation benefits “if ... the immediate employer ... is unable to meet their obligation ...” was to clarify that the immediate employer was primarily liable and Murphy Oil was secondarily liable. This arrangement is consistent with the well established principle that direct employers and statutory employers are solidarily liable for workers’ compensation benefits. Because Murphy Oh would have been liable to pay compensation benefits had MEI not paid them, Murphy Oh did not “deviate from the statutory scheme by abrogating its responsibility to pay Mr. Prejean’s |4compensation” as noted by trial court when it denied Murphy Oh’s Motion for Partial Summary Judgment.

Having found that the Murphy Oil-MEI written contract does not grant Murphy Oil statutory employer status, the trial court, and the majority opinion, do not address the second prong of the statutory employer analysis — the issue of whether Mr. Prejean overcame the presumption by showing that the work was not an integral part of or essential to the abhity of the principal, Murphy Oh, to generate its goods, products, or services. Because I find that the contract at issue does create the presumption of a statutory employer relationship, I will address whether the evidence brought forth by Mr. Prejean was sufficient to overcome the presumption.

Mr. Prejean argues that he can overcome the presumption because the work that he was performing at the time of his accident was unusual and non-recurring reconstruction work on the ROSE Unit after it had been destroyed by fire. Mr. Prejean argues that this kind of specialized repair-work was not part of Murphy Oil’s “trade, business, or occupation,” since Murphy Oil is not in the business of rebuilding burned out industrial units. In the alternative, Mr. Prejean argues that if this Court finds that the work that Mr. Prejean was performing may possibly be considered an integral part of Murphy Oil’s trade, business, or occupation, then summary judgment is still not appropriate in this case because “the factual dispute surrounding these contentions remains a material and ongoing dispute ...”

Contrary to Mr. Prejean’s contention otherwise, in this case, the material facts underlying the legal determination of whether Murphy Oil was Mr. Prejean’s statutory employer are not in dispute. MEI was hired to perform reconstruction work at the Meraux refinery on a unit that had burned out by fire. Mr. Prejean was an employee of MEI and was assigned to perform work on Murphy’s ROSE Unit. |fiOn the day of the accident, Mr. Prejean was working on Exchanger 108D, which was leaking. Specifically, he was tightening a plug at the rear of the exchanger in an effort to stop the leak. Using an 18-inch pipe wrench, Mr. Prejean made a]4 clockwise turn of the plug at which time more water began to leak out. He immediately turned the plug clockwise again at which time the plug blew out of the exchanger nozzle. Either the plug or the wrench stuck Mr. Prejean in the head causing injuries. The location of the accident was within the area defined by the Murphy Oil-MEI contract for reconstructing the ROSE Unit and the work Mr. Prejean was performing at the time of his accident was pursuant to the contract.

Despite Mr. Prejean’s argument that the work he was performing was unusual since it was non-recurring and not in Murphy’s regular trade or business, the fact that this was a reconstruction project is of no moment. Several Louisiana courts have held that reconstruction projects such as the one undertaken by MEI were essential to the ability of the refinery to generate its goods, products or services. In Applegarth v. Transamerican Ref. Carp., 00-1547 (La.App. 5 Cir. 2/28/01), 781 So.2d 804, for example, a contractor’s work in refurbishing a refinery by constructing a retaining wall around the oil tanks and laying cement forms for the installation of pipe racks to transport oil and other products through the refinery was essential to the ability of the refinery to generate its goods, products, or services. Additionally, in Trent v. PPG Indus., Inc., 03-1068 (La. App. 3 Cir. 2/4/04), 865 So.2d 1041, the court held the construction of the foundation and structural steel for a pipeline was essential to the ability of the project owner to generate its goods, products, or services, such that the project owner was the statutory employer of the construction worker.

The cases that Mr. Prejean cites, which held that non-recurring repairs or extraordinary work are outside the protection of statutory employer laws, pre-date |fithe 1997 amendment, which was designed to overrule the governing Louisiana Supreme Court standards previously employed and to expand the applicability of the statutory employer provision. Mr. Prejean has not cited any decisions under the current version of the statute that would support his contention, and there is nothing in the statutory language to suggest that nonrecurring repairs at issue are different from other forms of maintenance work.

Moreover, in recent years, courts have found that work which may be ancillary to the statutory employer’s operations may nevertheless be essential to the ability of the statutory employer to generate its goods or services. In Jackson v. St. Paul Insurance Company, 04-0026 (La.App. 1 Cir. 12/17/04), 897 So.2d 684, the first circuit noted, after reviewing the history of the statutory employer doctrine, that the legislature has “specifically rejected a restrictive analysis in favor of a more liberal interpretation of the words “integral” and “essential.” The Jackson court held that the plaintiff failed to rebut the presumption established by La. R.S. 2S:1061(A)(3), because he had not demonstrated that the construction of a new chemical plant was not necessary to Gulf Liquids’ ability to generate its products. More recently, in Ramos v. Tulane University of Louisiana, supra, 06-0487 (La.App. 4 Cir. 1/31/07), 951 So.2d 1267, this court applied the liberal interpretation of the statute and found that an electrical employee who was performing electrical work for renovation purposes in the university library was the statutory employee of the university on the basis that electricity is an integral part of the university’s ability to educate students.

Here, the work Mr. Prejean was performing when he was injured, repairing a leak in Exchanger 108D, was necessary for Murphy Oil to generate its oil product. Mr. Prejean has not shown that this work was not essential to Murphy Oil’s |7operations, and thus, has failed to rebut the presumption that he was the statutory employee of Murphy Oil at the time of his accident.

Given the intent of the 1997 legislative amendment that La. R.S. 23:1061 liberally grant statutory employer status to principal employers and subsequent case law which liberally granted statutory employer status, it is my position that Murphy Oil is entitled to summary judgment. The material facts underlying the legal determination of whether Murphy Oil was Mr. Preje-an’s statutory employer are not in dispute. Murphy Oil-MEI contract was in writing pursuant to La. R.S. 23:1061(A)(3) and Murphy Oil had the obligation of paying workers’ compensation benefits. Because principal employers and immediate employers are solidarily liable, it is irrelevant that Murphy Oil required that the immediate employer pay benefits first, rather than it pay the benefits and seek reimbursement from MEI. Moreover, Mr. Pre-jean failed to rebut the presumption of a statutory employer relationship by showing that the work he was performing at the time of the accident was not an integral part of or essential to the ability of the principal to generate its goods, products, or services. Accordingly, I would reverse the judgment of the trial court denying Murphy Oil’s Motion for Summary Judgment and remand the case to the trial court for further proceedings.

For all of the above reasons, I respectfully dissent.

      . Prejean v. Maintenance Enterprises, Inc., 08-0611 (La.App. 4 Cir. 5/2/08), 979 So.2d 1289(unpublished) (Tobias and Cannizzaro, JJ., dissenting).

      . The matter was returned to the same five-judge panel, except Judge Cannizzaro had since vacated his seat and his successor was substituted on the panel.

      . In the ten years following a 1976 amendment of La. R.S. 23:1032, the Louisiana Supreme Court in Berry began a discernable shift from a liberal to a more restrictive construction of the statutory employer defense See Everett, supra, 04-1988 at pp. 5-6, 938 So.2d at 1036, and Kirkland, 681 So.2d at 334.

      . See, e.g. Ramos v. Tulane Univ. of Louisiana, 06-0487 (La.App. 4 Cir. 1/31/07), 951 So.2d 1267; Jackson v. St. Paul Ins. Co., 04-0026 (La.App. 1 Cir. 12/17/04), 897 So.2d 684; Applegarth v. Transamerican Ref. Corp., 00-1547 (La.App. 5 Cir. 2/28/01), 781 So.2d 804; and Trent v. PPG Indus., Inc., 03-1068 (La.App. 3 Cir. 2/4/04), 865 So.2d 1041.

      . Marian Mayer, Workmen’s Compensation Law in Louisiana, (LSU Press, 1937), p. 1.

      . La. R.S. 23:1061(A)(3) and La.Code of Evidence art. 304.

      . Such a bargain is generally prohibited in law. La. Civil Code art. 2004 provides in part: "Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.”

      . The contract language between the principal and direct employer Everett v. Rubicon, 04-1988, pp. 5-6 (La.App. 1 Cir. 6/14/06), 938 So.2d 1032, 1034-41, writ denied, 06-1785 (La. 10/13/06), 939 So.2d 369., stated that the principal was liable for compensation benefits "only if” the direct employer was unable to meet its obligation; and Smith v. Marathon Ashland Petroleum LLC, 04-517 (La.App. 5 Cir. 10/26/04), 887 So.2d 613, in which contract stated that the direct employer "shall be and remain at all times primarily responsible for the payment of WC benefits to its employees,” were both upheld by the trial courts when they granted the statutory employer's motion for summary judgment.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Helen BABIN v. PLANET BEACH TANNING SALONS, INCORPORATED.
    No. 2008-CA-1350.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 25, 2009.

      James E. Moore, Jr., Carlton, Dunlap, Olinde, Moore & Bohman, LLC, Baton Rouge, LA, for Sybaritic, Inc.
    Stephen N. Elliott, Caroline D. Elliott, Jeanne M. Mauldin, David M. McDonald, Bernard Cassisa Elliott & Davis, PLC, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY).
   MAX N. TOBIAS, JR., Judge.

_JjThe defendant/appellant, Planet Beach Tanning Salons, Inc. (“Planet Beach”), appeals from a judgment granting an exception of prescription filed by third-party defendant/appellee, Sybaritic, Inc. (“Sybaritic”). After reviewing the record and applicable law, we reverse the judgment and remand the matter to the trial court for further proceedings.

On 26 January 2007, the plaintiff, Helen Babin, was injured while entering a piece of equipment called a “hydration station” at the Planet Beach salon in uptown New Orleans. She filed suit against Planet Beach on 26 February 2007, which was served with the pleading on 2 March 2007; its answer was filed on 2 May 2007.

Babin was deposed on 80 August 2007, in which she claimed that she fell out of the hydration station because the surface of the bed was wet and slippery |2due to one of the employees allegedly spraying it with a substance without wiping it up. She also testified that the station’s canopy hood was harder to pull down than it had been a week earlier.

On 12 March 2008, the plaintiffs expert was deposed. He stated that the accident could only have happened if the bed surface of the hydration station was wet in combination with the canopy hood having too much resistance when Babin tried to pull the hood down.

On 26 March 2008, Planet Beach filed a third-party demand against Sybaritic seeking indemnification and/or contribution. In response, Sybaritic filed several exceptions, including an exception of prescription. On 6 August 2008, the trial court granted the exception of prescription. This timely appeal followed.

While this matter was pending on appeal, the main demand was tried. The jury found that Planet Beach was negligent in preparing the equipment for Babin and negligent in the training of its employees to prepare the machine. Planet Beach alleges that it prepared the hydration station and trained its employees to prepare the machine in accordance with the instructions and procedures provided by Sybaritic. Planet Beach contends that its fault is the direct result of Sybaritic failing to warn it that (1) the use of the hydration station bed when wet increases the risk of a person slipping out of the bed; (2) a possibility exists of an ejection of a user by pulling the canopy down that may have more resistance than usual when lathe surface is moist; and (3) potential problems exist that the user may encounter under conditions similar to the plaintiffs accident. Planet Beach also argues that Sybaritic, or companies representing Sybaritic, performed all repairs on the hydration station.

The sole issue for our consideration is whether the third-party demand filed by Planet Beach against Sybaritic has prescribed. Planet Beach contends that it has not because a claim for indemnification does not accrue until the party seeking indemnity is cast in judgment. In response, Sybaritic argues that, at the very latest, Planet Beach had notice of a potential defense of product defect or failure to warn when it was served with Babin’s petition on 2 March 2007. Thus, the third-party demand filed 26 March 2008, more than a year later, was prescribed.

“The standard of review of a trial court’s finding of facts supporting prescription is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong.” Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 148. Similarly, the trial court’s fact finding regarding prescription should not be reversed without a finding of manifest error because the issue before the appellate court is not whether the fact finder is right or wrong, but whether the fact finder reached a reasonable conclusion. Id., 757 So.2d at 149.

In general,

[ijndemnity is due when fairness requires that one person bear the total responsibility for an injury. The basis for indemnity in the civil law, as in the common law, is restitution, the indemnitor having been unjustly enriched when the person seeking indemnity has discharged liability that was his responsibility. A solidary debtor who pays a debt that “concern[s] only” a co-debtor is, | therefore, entitled to indemnity from the debtor in whose behalf the debt arose. Thus a person who is held liable vicariously or passively for the tort of another is due indemnity from the culpable tortfeasor. One who is himself at fault, however, is not due indemnity because liability for indemnity exists only when the party seeking indemnity, the indemnitee, is free of fault and has discharged a debt that should be paid wholly by the indemnitor. The Louisiana Supreme Court has summed up the principle this way: indemnity shifts the entire loss from a tortfeasor only technically or constructively at fault to the person primarily responsible, while contribution apportions the loss among those jointly responsible.

Diggs v. Hood, 772 F.2d 190, 193 (5th Cir.1985) (citations omitted).

In the recent case of Orlando v. E.T.I., 07-1433 (La.12/12/08), — So.2d-, 2008 WL 5194398, the Supreme Court was presented with an analogous issue. The facts and procedural history were explained by the Court as follows:

This matter arrived in this Court in a pre-trial posture; therefore, the facts have been extrapolated from the various pleadings. On June 6, 2001, Exceptional Temporaries Inc., [sic] (“ETI”) entered into a contract with the City of New Orleans Aviation Board (“NOAB”) to provide sound-deadening insulation to residences in close proximity to Louis Armstrong Airport as part of the Airport Capital Improvements Program. On October 8, 2001, plaintiffs, Frances Orlando and Nicholas Reggio, contracted with NOAB to have their Kenner residence insulated. The work actually began on or about March 23, 2002. In the process of renovating the house, ETI allegedly broke a window’s glass, then failed to remove some pieces of the broken glass. Frances Orlando alleged that she stepped on the glass and cut her foot on April 21, 2002, causing severe bodily injuries. On March 7, 2003, she and her husband filed suit against ETI and NOAB alleging negligence on the part of NOAB in contracting with ETI to perform the repairs, and negligence on the part of ETI in performing “shoddy work in violation of |sLSA-C.C. art [sic] 2762.” NOAB was served with the petition on March 26, 2003. ETI was never served with the original petition.
On February 27, 2006, NOAB filed a Third Party Demand against ETI, seeking contribution and/or indemnity for damages arising out of the plaintiffs’ tort claim. Particularly, NOAB argued that it “is entitled to complete indemnity and/or contribution from ... ETI to the degree that the accident sued upon was caused ... by the negligence and/or strict liability of ETI.” ETI filed an exception of prescription based on LSA-C.C. art. 1067, which the trial court maintained, dismissing NOAB’s third party demand.
The trial court noted that NOAB filed its third party demand almost three years after the main demand was filed and served. Although NOAB alleged a cause of action in contract, pursuant to an indemnity provision, the trial court determined that the contract between ETI and NOAB contains no such provision. The court held that NOAB’s cause of action sounded in tort, and concluded that because NOAB brought suit against ETI more than 90 days after service of the main demand, pursuant to LSA-C.C. art. 1067, NOAB’s third party demand was prescribed.
In affirming the trial court’s ruling, the court of appeal found that the main demand clearly alleged a claim in tort, with a one year prescriptive period, although NOAB argued that a quasi contract existed between the parties. Reggio v. E.T.I., 07-0049 (La.App. 4 Cir. 6/18/07), 961 So.2d 1269. The court of appeal also concluded that there was no specific indemnity provision included in the contract between the NOAB and ETI; therefore, the NOAB’s only redress was in tort, and the cause of action was prescribed pursuant to LSA-C.C. art. 3492. In finding no contract of indemnity, the court noted:
“A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms.” Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986); Polozola v. Garlock, 343 So.2d 1000 (La.1977); Berry v. Orleans Parish School Bd., 2001-3283 (La.5/21/02), 830 So.2d 283.
The court of appeal held, as well, that the NOAB had ninety (90) days from service of the main demand to seek indemnification, and failed to do so; thus, NOAB’s third party demand was prescribed. NOAB applied for a writ of certiorari, alleging error in the lower courts’ application of LSA-C.C. art. 1067 to an incidental demand for indemnification, and this Court granted NOAB’s writ of certiorari. Reggio v. E.T.I., 07-1433 (La.10/12/07), 966 So.2d 636.

Id. at pp. 1-2, — So.2d at-.

The Court agreed that the contract in question did not include express language to support contractual indemnity between the parties. Instead, it found that NOAB’s third-party demand asserted a negligence (tortious) cause of action, which had a one year prescriptive period. Id. at 5, — So.2d at-. Thereafter, it stated:

Louisiana courts have found that in a claim for indemnification based on a tor-tious act, prescription begins to run when the indemnity claimant suffers the loss or damage, at the time of the payment of the underlying claim, payment of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity, i.e., when the judgment has been cast. Wiggins v. State Through Dept. Of Transportation and Development, 97-0432 (La.App. 1 Cir. 5/15/98), 712 So.2d 1006, 1011, writ not considered, 98-1652 (La.9/25/98), 726 So.2d 6; Carpenter v. Lafayette Woodworks, Inc., 504 So.2d 179 (La.App. 3rd Cir.1987).

Id.

The Court found that the action for indemnity did not accrue until the City of New Orleans was responsible for a judgment or actually discharged a liability for which NOAB was responsible. Thus, it found that NOAB’s action against E.T.I. 17was neither premature nor prescribed, and that the trial court and court of appeal had erred in granting the exception. Id. at pp. 6-7, — So.2d at-.

In the instant matter, the third-party demand filed by Planet Beach against Sybaritic alleges that the plaintiffs injuries were caused solely by the negligence of Sybaritic and seeks indemnification for all damages and costs Planet Beach may later have to pay. The underlying action was tried on or about 8 December 2008, wherein Planet Beach was found at fault for the plaintiffs injuries. Therefore, its cause of action for indemnity did not begin to run until the judgment was entered against it. Therefore, the trial court erred in granting Sybaritic’s exception of prescription on the issue of indemnity.

Based on the foregoing, we reverse and set aside the judgment entered by the trial court sustaining the exception of prescription and remand the matter to the trial court for further proceedings.

REVERSED; REMANDED.

      . Babin alleged in her petition that "when she attempted to pull down the cover, she either ejected [sic] and/or was pulled partially out of the hydration station, and then was thrown completely out by a sudden, jerking motion that threw her to the floor, head first.”

      . Because the record was lodged before the underlying action was tried, the appellate record does not reflect the actual date of the trial. However, the trial of the plaintiff's claims was set for 8 December 2008. In its reply brief dated 20 January 2009, Planet Beach indicated that the trial was held, as reflected above.

      . We note that the trial court judge in the instant matter also sat on the Orlando case. After granting the exception of prescription herein and while this appeal was pending in this court, the Supreme Court rendered its opinion in Orlando, reversing the trial court on the identical issue. Thus, the trial court did not have the benefit of Orlando when considering the exception of prescription filed by Sybaritic.

      . To the extent that Planet Beach seeks contribution from Sybaritic, that claim is prescribed.


author: AMY, Judge.

text:
    STATE of Louisiana v. Verna Mae ST. JULIEN.
    No. 08-1109.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    Rehearing Denied May 13, 2009.

      Alfred F. Boustany, II, Lafayette, LA, for Defendant/Appellant, Verna Mae St. Julien.
    J. Phillip Haney, District Attorney, Iberia, LA, for Appellee, State of Louisiana.
    Jeffrey J. Trosclair, Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

|)The defendant pled guilty to an amended charge of negligent homicide, a violation of La.R.S. 14:32. The trial court sentenced her to three years at hard labor. The defendant appeals, arguing that the trial court erred in failing to suspend her hard labor sentence and place her on supervised probation with mental health treatment. Further, the defendant contends that the trial court failed to grant a hearing on her motion to reconsider sentences. For the reasons that follow, we affirm.

Factual and Procedural Background

The defendant, Verna Mae St. Julien, was charged by bill of indictment with second degree murder in connection with a house fire that caused the death of her son, Felix St. Julien, III. According to the record, the defendant’s husband, Felix St. Julien, Jr., returned home from work around 9:30 p.m. on October 27, 2004, and found his children unsupervised. The defendant, whose testimony reveals that she had been visiting with a friend who recently lost her father, returned home between 10:00 and 10:30 that evening. The testimonies of the defendant and her husband indicate that a heated argument ensued between them concerning her whereabouts. The State alleged that the defendant went into her bedroom, lit a candle, and set her bed on fire. She locked the bedroom door, “hollering” at the children to exit the house. The record shows that the couples’ three vehicles were then moved. The defendant stated that once she was outside, she realized that Felix St. Julien, III was still inside. The boy, who would have turned ten years old three days after the incident, perished in the fire.

The initial second degree murder charge was amended to negligent homicide, and the defendant entered a guilty plea to the amended charge. The trial court sentenced the defendant to three years at hard labor. The defendant filed a Motion |2to Reconsider Sentence, which was denied without a hearing. The defendant appeals, assigning the following errors:

1. The lower court erred in failing to suspend Appellant’s hard labor sentence and in failing to place her on supervised probation with mental health treatment; and
2. The lower court erred in failing to grant a hearing on the Appellant’s motion to reconsider her sentence.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

Assignment of Error No. 1

The defendant’s first assignment of error concerns the trial court’s failure to suspend the sentence and its failure to place her on supervised probation to allow mental health treatment.

An argument that a trial court should have suspended an imposed sentence is reviewed under an excessive sentence standard. See State v. Wagley, 36,-277 (La.App.2d Cir.9/18/02), 828 So.2d 116. In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court set forth the standard for reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court |3has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The penalty for negligent homicide is imprisonment with or without hard labor for not more than five years and/or a fine of not more than $5,000.00. La.R.S. 14:32(C).

At her sentencing hearing, the defendant testified that she was enrolled in special education throughout high school. She stated that she was raped at the age of eighteen and subsequently began abusing alcohol. She was treated for alcoholism and depression at several mental health centers.

On cross-examination, the defendant admitted that on the night of the fire, she drank six to eight beers at her friend’s house. She stated that she left her children alone while she was gone. Further, she denied setting the fire and, instead, alleged that the police “bribed” her into saying that she intentionally set the bed on fire because she was mad at her husband. She acknowledged, however, that she did not escort her children out of the burning house.

Several witnesses testified that the defendant was a caring, loving, and involved mother. Her mental health records were introduced into evidence, as well as letters from her doctor, deacon, and treating physician at a mental health center, wherein they spoke positively of the defendant.

After considering the testimony and evidence presented, the trial court stated:

All right. In determining the appropriate sentence in this case, I take into consideration the evidence presented here today, as well as, which includes the pre-sentence investigative report, and the testimony |4and documents presented, as well as the sentencing guidelines provided by the Code of Criminal Procedure Article 894.1. Considering the aggravating circumstances, the defendant knew that she knowingly created a risk of death or great bodily harm to more than one person. There [was] a house full of children that she set afire. The offense resulted in a significant— resulted in the death of the victim. Of course, that’s the nature of the crime. The one aggravating circumstance that I mentioned is the only one that — which is listed that seems to fit in this case.
I take into account the fact that she has no criminal record, which is a mitigating circumstance. I take into account that she voluntarily participated in substance abuse treatment; that imposition of a penitentiary sentence would be a hardship on her other children. But one of the important factors is that the sentence, I feel that a suspended sentence would deprecate the seriousness of the defendant’s crime.
Considering all of these things, based [sic] the plea of guilty, I sentence Verna Mae St. Julien to serve three (3) years at hard labor with the Department of Public Safety and Corrections. I give her credit for all time served since her arrest.

In her Motion to Reconsider Sentence, the defendant asserted that she “is the mother of four children who live with her and her husband, Felix St. Julien. Her children are 15 years old, 14 years old, 6 years old and 2 years old. She and Felix St. Julien provide the only source of care and support for the children.” She continued, explaining that at her sentencing hearing her husband’s health deteriorated and he was taken to the hospital via an ambulance. The defendant claimed that she subsequently learned that he most likely suffered a stroke, and she contended that his disability and her incarceration would leave no one to care for the children. In the motion, she also urged the court to consider the following mitigating factors:

[She] did not contemplate that her criminal conduct would cause or threaten serious harm to her child; she has no prior history of prior delinquency or criminal activity and has led a law abiding life for a substantial period of time before the commission of the instant crime; her criminal conduct was the result of circumstances unlikely to recur; her character and attitudes indicate that she is unlikely to commit another crime; she is particularly likely to respond affirmatively to | ^probationary treatment; and her imprisonment would entail excessive hardship to her, her children, and her husband.

The defendant, on appeal, argues that the trial court erred by not suspending her sentence and imposing either court-approved community service or home incarceration. In support of this contention, she states that she pleaded guilty to a non-intentional crime, that no risk of committing another crime exists as evidenced by her character and good criminal record, that she needs mental treatment not incarceration, and that “she will suffer the rest of her life with the burden of what she did to herself and her family.” For statutory support, the defendant relies on La. Code Crim.P. art. 893.5, which provides in pertinent part:

A. Except as otherwise prohibited by law, the court may suspend, in whole or in part, the imposition or execution of sentence if:
(1) The defendant has not previously been convicted of a felony.
(2) The maximum term of imprisonment for the offense is thirty years or less.
(3) The court imposes a period of court-approved community service of not less than two nor more than five years.
(4) The court specifies in written form in the court record the reason for the imposition of community service in lieu of imprisonment.

Insofar as satisfaction of this article’s requirements does not grant automatic suspension of sentence, we note La.Code Crim.P. art. 893.5 permits the trial court to use its discretion in determining whether to suspend the imposition or execution of sentence. Accordingly, our review entails an evaluation of whether the trial court abused its discretion.

By the defendant’s own admission, she drank six to eight beers before returning home on the night of the fire. She acknowledged that she could not recall some of the events that evening and conceded that she moved her vehicles instead of | f,escorting her children out of the house. She stated, “when you’re drinking, your mind doesn’t work right.” The St. Martin Parish Sheriffs Office investigative report which was made part of the pre-sentence investigation report, indicated that the defendant admitted to lighting the mattress on fire in her bedroom because she was mad at her husband for hitting her in the face.

The trial court considered the mitigating factors, namely her lack of a criminal record, her voluntary participation in substance abuse treatment, and the hardship on the children. While the defendant argues that her husband’s sudden illness was a mitigating factor that the trial court did not consider at the time of her sentencing hearing, we find that the trial court sufficiently evaluated the effect her incarceration would have on her family. Further, the defendant pled guilty to an amended charge that resulted in significantly less onerous consequences. Accordingly, the trial court did not err in sentencing the defendant to three years at hard labor, and this assignment of error is without merit.

Assignment of Error No. 2

In her second assignment of error, the defendant alleges that the trial court erred in failing to grant a hearing on her Motion to Reconsider Sentence. Louisiana Code of Criminal Procedure Article 881.1(D) states:

The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion.

Accordingly, the trial court’s denial of a hearing was discretionary, and we find no abuse of discretion in this case. See State v. Hughes, 03-420 (La.App. 3 Cir. 12/31/03), 865 So.2d 853, writ denied, 04-663 (La.9/24/04), 882 So.2d 1165.

_JjDE CREE

For the foregoing reasons, the defendant’s sentence for negligent homicide is affirmed.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    STATE of Louisiana v. Raymundo FRANCO.
    No. 08-1071.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    Rehearing Denied May 13, 2009.

      James E. Beal, Louisiana Appellate Project, Jonesboro, Louisiana, for Defendant/Appellant, Raymundo Franco.
    Michael Harson, District Attorney, Ronald E. Dauterive, Assistant District Attorney, Lafayette, Louisiana, for State of Louisiana.
    Raymundo Franco, Cottonport, Louisiana, Defendant/Appellant.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

| ¶ Defendant, Raymundo Franco, appeals his sentence for vehicular homicide, claiming it is excessive. He also makes a pro se claim that the trial court breached his plea agreement and that his consent was vitiated when he received an excessive sentence. For the following reasons, we affirm Defendant’s sentence, as amended, and remand with instructions.

Facts

On February 18, 2007, the weekend before Mardi Gras, Defendant ran a red light, and his vehicle collided with a vehicle driven by B.D., a seventeen-year-old female. Defendant’s blood alcohol concentration was 0.26. B.D. had two passengers, K.V. and M.L, who were also seventeen years old. B.D. was killed, and K.V. and M.L. were seriously injured. M.L.’s left leg was amputated below the knee, and she had to undergo numerous surgeries, which required her to be hospitalized for an extended period of time. K.V. was also hospitalized and lost her spleen.

Defendant was charged with vehicular homicide, a violation of La.R.S. 14:32.1, two counts of first degree vehicular negligent injuring, a violation of La.R.S. Í4:39.2, and operating a motor vehicle without required insurance, a violation of La.R.S. 32:861. He pled guilty to vehicular homicide and two counts of first degree vehicular negligent injuring; the charge of operating a motor vehicle without required insurance was dismissed. For his conviction of vehicular homicide, Defendant was sentenced to twenty-four years at hard labor and ordered to serve the first five years without the benefit of probation, parole, or suspension of sentence; he was also ^ordered to pay a fine of $2,000.00 and court costs of $183.60. For each conviction of first degree vehicular negligent injuring, Defendant was sentenced to five years at hard labor. The three sentences were ordered to run concurrently, and Defendant was given credit for time served. The trial court requested that Defendant be confined to a facility in which he could receive alcohol and substance abuse treatment and imposed conditions of parole.

Defendant filed a pro se Motion to Reconsider Sentence, which was summarily denied with reasons. He then filed a pro se “Motion to Vacate Illegal Sentence ordering Resentence,” which was also summarily denied with reasons. Thereafter, he filed this appeal.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There are two error patents.

The trial court imposed conditions of parole; however, it does not have the authority to impose such conditions. State v. Bradley, 99-364 (La.App. 3 Cir. 11/3/99), 746 So.2d 263. Accordingly, Defendant’s sentence is amended by deleting the conditions of parole, and the trial court is instructed to make an entry in the court minutes reflecting this amendment.

The trial court gave Defendant incorrect advice as to the time period for seeking post-conviction relief. It informed Defendant that his sentences and convictions would be final in five days if he did not file an appeal or a motion to reconsider his sentence. Pursuant to La.Code Crim.P. arts. 914 and 922, the earliest a conviction and sentence can become final is thirty days after the imposition of sentence, provided the defendant does not file an appeal or a motion to reconsider | .¡sentence. In light of this error, the trial court is directed to inform Defendant of the correct prescriptive period by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof of the notice in the record of this proceeding. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Excessive Sentence

Defendant urges that the trial court failed to give sufficient consideration to mitigating factors in fashioning his sentence for vehicular homicide, and as a result, he received an excessive sentence. In his pro se Motion to Reconsider Sentence, Defendant did not set forth a specific ground upon which his motion was based, stating only that his sentence was excessive. A motion to reconsider sentence must be based upon a specific ground. La.Code Crim. art. 881.1(E). This requirement includes claims of excessiveness. Id. In State v. Mims, 619 So.2d 1059, 1059-60 (La.1993), the supreme court addressed this requirement, explaining:

If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness.

Defendant did not argue that the trial court did not sufficiently consider the mitigating factors as provided in La.Code Crim.P. art. 894.1 or that the trial court failed to comply with Article 894.1; therefore, he is relegated to a bare claim of excessiveness. Id.

In State v. Semien, 06-841, pp. 11-12 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189, 1197, writ denied, 07-448 (La.10/12/07), 965 So.2d 397, this court stated:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the | imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law renewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.
State v. Whatley, 03-1275, pp. 5-6 (La. App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59 first two alterations in original.

Nature of the Crime

The crime at issue here is vehicular homicide, which carries a maximum sentence of thirty years at hard labor. La. R.S. 14:32.1. In 2004, the legislature increased the maximum penalty for vehicular homicide from twenty years to thirty years, demonstrating its intent to convey the serious nature of this crime. State v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66. Then, in 2006, the minimum | .-penalty for vehicular homicide was increased from two years to five years at hard labor, and the minimum number of years required to be imposed without benefit of probation, parole, or suspension of sentence was increased from one year to three years, further evidencing the legislature’s intent to convey the seriousness of this offense.

In this case, the offense caused the untimely death of a seventeen-year-old girl, for which “[t]here is no measure of punishment to this defendant that can erase this crime, ease [this family’s] pain, or comfort this family,” as the trial court observed.

Nature and Background of Defendant

Defendant was twenty-three years old at the time of the accident herein. He had no prior felony convictions but had several misdemeanor convictions, including DWI, improper lane usage, careless operation, and no driver’s license in possession. In fact, Defendant was on probation for a prior DWI conviction at the time of the instant offense. Additionally, his blood alcohol concentration was more than three times the legal limit of “0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.” La.R.S. 14:98(A)(l)(b).

Defendant obtained his Graduate Equivalency Diploma, then attended a branch of Texas A & M in Houston, Texas, which led him to be a diver. He moved to New Iberia, Louisiana, to work as a diver, where he was gainfully employed for about two years before the accident. He accepted responsibility for his conduct and showed remorse for the consequences of his misconduct. He admitted that he has a substance abuse problem for which he needed help and completed Project Kite, a substance abuse program offered to incarcerated inmates. He was also attending Alcoholic Anonymous meetings.

| (Sentences Imposed for Similar Crimes

Two reported cases involve the amended maximum penalty for vehicular homicide that was upheld on appeal and that is similar to the instant case. In State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224, this court affirmed a sixteen-year sentence for vehicular homicide. Like the Defendant in this case, the defendant in Kotrla was driving his vehicle while under the influence of alcohol, struck another vehicle, and caused the death of one passenger and seriously injured the driver and a second passenger. The defendant’s blood alcohol concentration exceeded 0.15. After one full day of trial, the defendant withdrew his plea of not guilty to vehicular homicide and two counts of first degree vehicular negligent injuring and entered a plea of guilty as charged.

At sentencing, in Kotrla, the trial court noted that the defendant had no prior felony convictions and had a stable work history. However, considering the facts that the defendant’s blood alcohol concentration was twice the legal limit at the time of the offense and that his actions resulted in the death of a human being and serious bodily injury to two others, the trial court determined that any lesser sentence would deprecate the seriousness of the offense.

In State v. Johnson, 43,719 (La.App. 2 Cir. 12/3/08), 999 So.2d 126, the defendant pled guilty to one count of vehicular homicide and one count of first degree vehicular negligent injuring. At the time of the accident at issue, the defendant had a blood alcohol concentration of 0.285. She did not have a driver’s license, and the car she was driving was not insured. Additionally, she had a history of alcohol abuse. The defendant was sentenced to serve fifteen years at hard labor, the first five years to be served without benefit of probation, parole, or suspension of sentence on the 17vehicular homicide conviction and five years at hard labor with credit for time served on the first degree negligent injuring conviction to run consecutively with the vehicular homicide conviction.

We have considered Defendant’s sentence in light of the seriousness of the crimes committed, Defendant’s situation, and sentences imposed in these similar cases and do not find his sentence to be cruel or excessive punishment. Defendant’s blood alcohol concentration was much higher than the defendant’s in Kotr-la, and there is no indication that that the defendant in Kotrla had a substance abuse problem or a prior DWI. While Defendant’s blood alcohol concentration was lower than the defendant’s in Johnson, there were only two victims in Johnson, and the defendant was sentenced to consecutive sentences which total twenty years. The defendant in Johnson had an alcohol abuse problem, as Defendant does, but unlike Defendant, there is no indication she had a prior DWI conviction or that she was on probation for DWI when she committed the offense of vehicular homicide.

Breach of Plea Agreement

In his second and third pro se assignments of error, Defendant argues that his plea agreement was breached by the trial court when it imposed a twenty-four-year sentence for vehicular homicide and that his consent to the plea agreement was vitiated by the alleged breach. We do not agree.

First, Defendant’s plea agreement did not include a sentencing agreement or recommendation by the State. Second, before accepting Defendant’s guilty plea, the trial court specifically informed him twice that no promise was being made as to the sentence he would receive. Third, the trial court also explained that a pre-sentence investigation would be ordered and that the trial court would use it to determine the ^appropriate sentence. Lastly, Defendant indicated that he understood the trial court’s explanation regarding sentencing. Defendant was sentenced in conformity with his plea agreement, and his conviction is affirmed.

Disposition

Defendant’s conviction and sentence for vehicular homicide are affirmed. However, his sentence is amended by deleting the conditions of parole, and the trial court is instructed to make an entry in the court minutes, which identifies this amendment. The trial court is directed to inform Defendant of the correct prescriptive period for post-conviction relief by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof of the notice in the record of this proceeding.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      . Initials are used pursuant to La.R.S. 46:1844(W). Although the use of the deceased victim’s initials is not required under the statute, her initials are used herein to protect the identity of the other two victims.