                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                          UNITED STATES COURT OF APPEALS
                               For the Fifth Circuit                                  June 22, 2007

                                                                                Charles R. Fulbruge III
                                                                                        Clerk
                                       No. 06-30619




FRANCIS AND DORIS CAIN, Individually and on Behalf of their Minor
                       Child, MATTHEW CAIN

                                                 Plaintiffs - Appellants


                       EMPLOYERS MUTUAL CASUALTY COMPANY

                                                 Intervenor Plaintiff - Appellant


                                            VERSUS


                                ALTEC INDUSTRIES, INC.

                                                 Defendant

           WASHINGTON - ST. TAMMANY ELECTRIC COOPERATIVE, INC.

                                                 Intervenor Defendant - Appellee



              Appeals from the United States District Court
                  For the Eastern District of Louisiana
                              2:05-CV-03318



Before KING, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:*



       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
     Plaintiffs, Francis and Doris Cain, individually and on behalf

of their minor child, Matthew Cain, and Plaintiff Intervenor

Employers Mutual Casualty Company (“Employers”), appeal a district

court order granting the motion for summary judgmennt of Defendant

Intervenor    Washington     St.   Tammany      Electric       Cooperative,   Inc.

(“WST”).     Because we conclude Mississippi law applies to this

dispute, we REVERSE and REMAND.

                  I.   FACTUAL AND PROCEDURAL BACKGROUND

     Plaintiff Francis Cain (“Cain”), a Mississippi resident, was

employed by Carson Line Service, Inc. (“Carson”), a Mississippi

Corporation.      Carson entered into a contract with WST, a Louisiana

corporation, in which Carson agreed to clear rights-of-way for WST.

Pursuant to this agreement, Cain was trimming trees along an

electric power line in St. Tammany Parish, Louisiana when the

aerial   bucket    being   used    by    Cain   came    into    contact   with   an

energized power line, causing Cain severe injuries.                 The electric

power line was owned by WST.            Following his injury, Cain received

workers’     compensation    benefits         under    Mississippi’s      workers’

compensation law through Carson’s carrier, Employers.

     Cain and his wife, individually and on behalf of their minor

child (the “Cains”), brought this suit seeking damages from Altec

Industries, Inc. (“Altec”), the manufacturer of the aerial bucket,

and WST.   WST filed a third party claim against Carson for defense

and indemnity.         The Cains then dismissed their action against



                                          2
Altec, leaving WST as the only defendant.                     Employers subsequently

intervened,      asserting         its     subrogation         rights         for   workers’

compensation benefits paid to Cain.

     WST filed a motion for summary judgment claiming tort immunity

based on the statutory employer doctrine in Louisiana’s workers’

compensation law. In response, the Cains and Employers argued that

their case was an “exceptional case,” pursuant to La. Civ. Code

Ann. art. 3547, and thus, the substantive law of Mississippi

governed their claim.            The district court rejected this argument

and granted WST’s motion, concluding that Louisiana law applied.

The Cains and Employers timely filed this appeal.

                             II.     Standard of Review

     We review a district court’s choice-of-laws determination de

novo.1   We give no deference to the district court’s determination

of state law.2

     Federal courts sitting in diversity must apply the choice-of-

laws provisions of the state in which they sit.3                              Thus, we must

apply Louisiana’s choice-of-laws principles to determine which

state’s substantive law will apply.

                                   III.    Discussion

     Prior to conducting a choice-of-laws analysis, we must first


     1
      Abraham v. State Farm Mut. Auto. Ins. Co., 465 F.3d 609, 611 (5th Cir. 2006).
     2
      Am. Reliable Ins. Co. v. Navratil, 445 F.3d 402, 404 (5th Cir. 2006).
     3
      Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496 (1941).

                                              3
determine whether the laws of Louisiana and Mississippi conflict.4

If the laws of the states do conflict, only then is it necessary

for us to conduct a conflicts analysis to determine which state’s

law should apply.

                        A.     Is there a conflict of laws?

       The contract between Cain and WST contained a provision

specifically recognizing WST as a statutory employer of Carson’s

employees.5

       Under Louisiana law, a written contract between a principal

and contractor recognizing the principal as the statutory employer

of the contractor’s employees is valid and enforceable.6                                       As a

result,     under      Louisiana        law,     WST    is    immune      from     civil       tort

liability.7


       4
         See Schneider Nat’l Transport v. Ford Motor Co., 280 F.3d 532, 536 (5th Cir. 2002)
(citations omitted).
       5
        The provision provided that:

       The Owner, Washington-St. Tammany Electric Cooperative, Inc., (as principal
       employer) and the Contractor (as direct employer) mutually agree that it is their
       intention to recognize the Owner as the statutory employer of the employees of the
       Contractor while such employees are providing work and/or services to the Owner
       under this Agreement/Contract.
       6
        La. Rev. Stat. Ann. § 23:1061(A)(3). Louisiana law provides, in pertinent part:

       Except in those instances covered by Paragraph (2) of this Subsection, a statutory
       relationship shall not exist between the principal and the contractor’s 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.
       7
        See La. Rev. Stat. Ann. § 23:1032.

                                                 4
        However, unlike Louisiana, Mississippi law does not recognize

and will not enforce any contractual provision seeking to give tort

immunity to a principal who is sued by a contractor’s employees

unless the principal has the legal obligation under the Mississippi

Workers’ Compensation Act (the “Act”) to secure compensation for

that contractor’s employees.8                    Under Mississippi law, an owner is

not a statutory employer, and thus, has no obligations under the

Act.9        As a result, since WST was the owner of the electric power

line, it is not a statutory employer of Cain under Mississippi law

and is not immune from liability.10

        Accordingly,           there      is    a        substantive   difference       between

Louisiana          and    Mississippi          law       necessitating   a   choice-of-laws

determination.

                                     B.       Choice of laws

        We will apply Louisiana’s choice-of-laws provisions, found in

Book IV of the Louisiana Civil Code, to resolve the choice-of-laws



        8
         See Miss. Code Ann. § 71-3-7; Magee v. Transcontinental Gas Pipe Line Corp., 551 So.
2d 182, 184 (Miss. 1989) (owner “may not gain tort immunity by assuming compensation
obligations which in fact and in law it did not have”); Nash v. Damson Oil Corp., 480 So. 2d
1095, 1099 (Miss. 1985) (lessee could not gain tort immunity by voluntarily electing to say it had
compensation obligations which in fact and in law it did not have); Falls v. Mississippi Power &
Light Co., 477 So. 2d 254, 258 & n.3 (Miss. 1985) (permitee not immune from suit even though
in the contract the permitee required the contractor to obtain workers’ compensation).
        9
        See Magee, 551 So. 2d at 184 (owner of right-of-way not statutory employer); see also,
Nash, 480 So. 2d at 1099 (lessee of oil producing unit not statutory employer); Falls, 477 So. 2d
at 258 (permitee not statutory employer).
        10
             See Miss. Code Ann. § 71-3-71.

                                                     5
issue in this case.

       The issue of whether WST is immune from tort liability is an

issue of loss distribution and financial protection governed by La.

Civ. Code Ann. art. 3544.11               Therefore, we begin our analysis with

article 3544, which provides, in relevant part:

       Issues pertaining to loss distribution and financial
       protection are governed, as between a person injured by
       an offense or quasi-offense and the person who caused the
       injury, by the law designated in the following order:

       . . . .

       (2) If, at the time of the injury, the injured person and
       the person who caused the injury were domiciled in
       different states: (a) when both the injury and the
       conduct that caused it occurred in one of those states,
       by the law of that state; . . . .

       Under the mechanical rule of article 3544, we would apply

Louisiana      law    because,       at    the    time     of   the   injury,      Cain,     a

Mississippi domiciliary, and WST, a Louisiana corporation, were

domiciled in different states, and both the injury and the conduct

that caused it occurred in one of those states, i.e., Louisiana.

Accordingly, based on article 3544, WST would be entitled to the

statutory employer tort immunity afforded it under Louisiana law.

       However, article 3547 provides an exception to article 3544 to

be   used    when     the   mechanical        rule    of    article     3544    yields      an




       11
          See La. Civ. Code Ann. art. 3543, comment (a); Duhon v. Union Pacific Resources Co.,
43 F.3d 1011, 1013 (5th Cir. 1995); Carriere v. Chandeleur Energy Corp., 94-40119, 42 F.3d 642
(5th Cir. Dec. 9, 1994) (unpublished opinion); Rigdon v. Pittsburgh Tank & Tower Co., Inc., 682
So. 2d 1303, 1306 (La. App. 1st Cir. 1996).

                                              6
inappropriate result.12 Under La. Civ. Code Ann. art. 3547, this

exception is applicable when

       from the totality of the circumstances of an exceptional
       case, it is clearly evident under the principles of
       Article 3542, that the policies of another state would be
       more seriously impaired if its law were not applied to
       the particular issue.    In such event, the law of the
       other state shall apply.

       Article 3547 references article 3542, which gives guidance in

determining how to evaluate which state’s policies would be “most

seriously impaired”:


       That state is determined by evaluating the strength and
       pertinence of the relevant policies of the involved
       states in the light of: (1) the pertinent contacts of
       each state to the parties and the events giving rise to
       the dispute, including the place of conduct and injury,
       the domicile, habitual residence, or place of business of
       the parties, and the state in which the relationship, if
       any, between the parties centered; and (2) the policies
       referred to in Article 3515 [the policies and needs of
       interstate systems, the policies of upholding the
       justified expectations of the parties, and the policy of
       minimizing the adverse consequences that might follow
       from subjecting a party to the law of more than one
       state], as well as the policies of deterring wrongful
       conduct and of repairing the consequences of injurious
       acts.

       Thus, the precise issue before us is whether this is an

“exceptional case” which warrants the application of article 3547

over    article        3544.     Our    decisions      in   Duhon   v.   Union   Pacific




       12
            See Comment to La. Civ. Code Ann. art. 3547.

                                                7
Resources Co.13 and Carriere v. Chandeleur Energy Corp.,14 lead us

to conclude that this is an “exceptional case,” dictating the

application of Mississippi law.

       In Carriere and Duhon, we addressed the question of whether

Texas or Louisiana law applied to the statutory employer issue.

Although, based on article 3544, Texas law applied, under the facts

in   both        cases,      we      concluded       that   the   matter     presented        an

“exceptional case” under article 3547, dictating the application of

Louisiana law.15            Finding the facts in this case indistinguishable

from those in Carriere and Duhon,16 and applying the same factors

we considered in Carriere17 and Duhon,18 we conclude that this case


       13
            43 F.3d 1011.
       14
            94-40119, 42 F.3d 642.
       15
            Duhon, 43 F.3d at 1014; Carriere, 94-40119, 42 F.3d 642.
       16
         Although in this case the contract between Carson and WST contained a provision
recognizing WST as a statutory employer of Carson’s employees, and the contract in Duhon and
Carriere did not, we do not find this distinction significant. The Carson/WST contract does not
include a choice-of-law provision and, in the absence of such a provision, the contract between
Carson and WST has no role in our choice-of-law analysis. Compare La. Civ. Code Ann. art.
3540 with La. Civ. Code Ann. art. 3544 and La. Civ. Code Ann. art. 3547.
       17
        In Carriere, we made the following comparison of the interests and policies of Louisiana
and Texas:

       Texas' interests are (1) Grey Wolf is incorporated in Texas; (2) the place of
       conduct and injury are in Texas; and (3) Texas, we surmise, has an interest in
       deterring wrongful conduct and repairing the consequences of injurious acts.
       Louisiana's interests-stronger by comparison-are (1) Carriere is domiciled in
       Louisiana; (2) Grey Wolf is qualified to do business in Louisiana, and is doing
       business in Louisiana; (3) Carriere was working for Grey Wolf pursuant to a
       Louisiana contract for hire; (4) Carriere's direct employer, with whom Grey Wolf

                                                 8
presents       an    “exceptional         case”      requiring       the     application         of

Mississippi law over Louisiana law. Louisiana’s interests are: (1)

WST is incorporated in Louisiana; (2) the place of conduct and

injury are in Louisiana; (3) Cain’s direct employer, Carson, was

qualified to do business in Louisiana, and was specifically doing

business under a Louisiana contractor’s number; and (4) Louisiana

has an interest in applying its workers’ compensation laws to

regulate the rights and liabilities of a domestic employer and an

employee injured in its state.                    On the other hand, Mississippi’s

interests are: (1) Cain is domiciled in Mississippi; (2) WST is

registered to do business in Mississippi as a non-profit Louisiana




       established the contractual relationship to “hire” Carriere is [authorized to do
       business in Louisiana]; (5) Carriere has received workers' compensation benefits
       for his injury pursuant to Louisiana law; (6) Louisiana has an interest in protecting
       both citizens who are recruited and hired in Louisiana and employers that are
       doing business in the state; (7) Louisiana has an interest in protecting foreign
       corporations in order to create a friendly business atmosphere in which to promote
       commerce and industry; (8) Louisiana has an interest in the consistent and
       comprehensive implementation of its workers' compensation laws; and (9) as
       articulated by article 3515, the policies and needs of the interstate system, which
       includes the expectations of the parties and the minimization of adverse
       consequences that might follow from subjecting a party to the law of more than
       one state are best served in this dispute by the application of Louisiana law.

94-40119; see Carriere v. Chandeleur Energy Corp., 94-40119 (5th Cir. Jan. 17, 1995)
(correcting earlier statement that Carriere’s direct employer, Chandeleur, was domiciled in
Louisiana).
       18
          In Duhon, we considered the following factors in reaching our conclusion: (1) the
plaintiffs are Louisiana citizens; (2) Duhon was hired in Louisiana by Grey Wolf; (3) suit was filed
in Louisiana; and (4) Duhon received worker’s compensation benefits in accordance with
Louisiana worker’s compensation scheme. Duhon, 43 F.3d at 1014.

                                                 9
corporation, and is doing business in Mississippi;19 (3) Carson is

incorporated        in    Mississippi;        (4)     Cain      has   received       workers’

compensation benefits for his injury pursuant to Mississippi law;

(5) Mississippi has an interest in repairing the consequences of

injurious acts inflicted on its citizens; (6) Mississippi has an

interest in the consistent and comprehensive implementation of its

workers’ compensation laws; and (7) as articulated by article 3515,

the policies and needs of the interstate system, which include the

expectations        of    the    parties      and    the     minimization       of    adverse

consequences that might follow from subjecting a party to the law

of more than one state are best served in this dispute by the

application of Mississippi law.

       In sum, after comparing the policies and interests of both

Louisiana and Mississippi, we conclude the policies of Mississippi

would be more seriously impaired if Louisiana law were applied to

this    dispute      than     would     Louisiana’s        if    Mississippi       law    were

applied.        Consequently, we are convinced that Mississippi law

applies to this dispute and, thus, WST is not immune from suit.

Therefore, the district court erred in granting WST’s motion for

summary judgment based on Louisiana law.




       19
           The work that WST does in Mississippi is minimal compared to the work it performs in
Louisiana. However, WST is listed as an electric company serving Walthall County, Mississippi
on the County’s chamber of commerce website, and WST’s website indicates that it serves, inter
alia, the southern part of Marion County in Mississippi.

                                               10
                         IV. Conclusion

     For the foregoing reasons, we REVERSE the district court’s

order granting WST’s motion for summary judgment and REMAND the

case for further proceedings consistent with this opinion.

REVERSED and REMANDED.




                               11
