     Case: 18-30388   Document: 00514863514     Page: 1   Date Filed: 03/07/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                 No. 18-30388                          March 7, 2019
                                               Lyle W. Cayce
ALEJANDRO JORGE-CHAVELAS; ALFREDO MORENO-ABARCA, Clerk

             Plaintiffs - Appellees

v.

LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY;
LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY,

             Defendants - Appellants

v.

AMERICAN INTERSTATE INSURANCE COMPANY,

             Intervenor Plaintiff - Appellee




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before KING, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Workers’ compensation laws strike a statutory bargain between labor
and management. They all but guarantee that a worker will recover from an
employer for workplace injuries. In exchange for that certainty, the worker
gives up the right to pursue a potentially larger recovery in a tort suit—
employers are immune from such claims.
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                                 No. 18-30388
      These tradeoffs mean that questions about whether the statutory
scheme covers an injured worker can cause businesses and workers alike to
oscillate between seemingly opposed positions. A worker uncertain about the
chances of a tort suit will often seek workers’ compensation, prompting the
business to argue that the worker does not fall within the statutory protections.
If the worker has a strong tort claim, the roles may flip—the business then has
an incentive to argue that workers’ compensation is the worker’s exclusive
remedy.
      This case is of the latter variety. The insurer of a Louisiana sugarcane
farm has raised several arguments that the farm is entitled to statutory
immunity from this lawsuit brought by two injured cane planters. Those
workers—entitled to a $2.5 million recovery if workers’ compensation does not
apply—hope to show otherwise.
                                       I.
      Alejandro Jorge-Chavelas and Alfredo Moreno-Abarca, Mexican citizens
in the United States on work visas, were severely injured while working on a
Louisiana sugarcane farm operated by Harang Sugars, L.L.C. Their legs were
crushed when a Harang employee drove into the sugarcane cart they were
sitting on.
      No one disputes that Harang’s employee was at fault. Nor does anyone
dispute the damages the plaintiffs suffered.       Instead, Harang’s insurers
(collectively “Farm Bureau”) contend that Jorge-Chavelas and Moreno-Abarca
were Harang’s employees, whose injuries are excluded from its general liability
policy.       Alternatively, Farm Bureau argues that Louisiana workers’
compensation laws grant its insured immunity from this suit. Both positions
turn on the nature of the plaintiffs’ employment. And so we turn to the
arrangement between the four main players: Jorge-Chavelas, Moreno-Abarca,
their direct employer (Lowry Farms, Inc.), and Harang.
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                                     No. 18-30388
       Lowry plants sugarcane for other farmers.              Because the sugarcane
planting season is short but labor intensive, farmers prefer to contract out the
work rather than hire the necessary short-term workers.                    Once a farm
contracts with it, Lowry sends recruiters to Mexico to find cane planters.
Jorge-Chavelas and Moreno-Abarca were two such recruits. Lowry obtained
the necessary visas and agreed to pay the workers an hourly rate and provide
them housing, transportation to and from the worksite, and workers’
compensation insurance. It also explained that the workers would “be required
to work all hours as directed by [Lowry’s] management personnel.”
       Harang was one of Lowry’s clients. Their contract required Harang to
pay Lowry on a per-acre-planted basis, as opposed to per hour worked by a
planter. 1 The agreement treated the planters as Lowry’s employees, stating
that the payments were “for the work performed by Lowry Farms, Inc.
workers.” While Harang requested 21 workers for the season, it had no role in
the selection of those individuals.
       Once planting season began, Lowry recruiters became “crew leaders.”
They oversaw planters in the fields, settled disputes between the planters,
communicated with the farmers, reported injuries suffered by the planters to
Lowry, and arranged the planters’ transportation back to Mexico. They also
decided which planters would work on which farms. Crew leaders selected
“straw bosses” to be their on-the-ground supervisors during the planting, and
these Lowry employees trained the planters. At the end of each week, Harang
filled out a time sheet for the planters, but it was the crew leaders’
responsibility to report the planters’ hours to Lowry. Every week, Lowry paid
the planters.



       Lowry gave Harang the option to pay an hourly rate to use its employees for “General
       1

Farm Labor” on days when planting was infeasible. It never did so.
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      On the farms, the planters worked side-by-side with Harang’s
employees. Harang tractor drivers hauled the sugarcane carts while the Lowry
planters followed behind in groups of three, pulling the cane from the carts and
planting it in the ground. Harang provided the necessary equipment—the
tractors, carts, and sugarcane all belonged to Harang. But it typically did not
exert direct control over the planters. If its owner had a problem with the
planters’ work, he would contact Lowry’s office manager, who would contact
the crew leader, who would in turn communicate the concern to the planters.
And only Lowry could fire its planters—Harang could voice concern about a
planter in the hope that Lowry would find a substitute, but it could not
terminate his employment.
      Harang’s management did not believe the planters were its employees.
On the day of the accident, after calling emergency services, Harang’s owner
immediately notified Lowry. When asked why, he replied, “Because that’s
their employees.”      Indeed, Lowry’s workers’ compensation insurer covered
plaintiffs’ medical expenses. 2
      Jorge-Chavelas and Moreno-Abarca sued Harang in federal district
court, invoking diversity jurisdiction.         After the court denied competing
motions for summary judgment, a stipulated bench trial followed. The parties
agreed that Harang was at fault and that total damages would be $2.5 million
(the limit of the Farm Bureau policy). The court had to decide the employment
status of the plaintiffs and, relatedly, whether Harang was immune from suit.
Concluding that the plaintiffs were not Harang’s employees and that the
workers’ compensation laws did not otherwise provide Harang immunity, the



      2 The district court awarded that insurer—intervenor American Interstate Insurance
Company—reimbursement for the payments it made to and on behalf of the appellees.
American Interstate has informed the court that it too hopes we affirm the judgment below,
standing on the arguments plaintiffs make.
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                                 No. 18-30388
district court entered judgment in favor of Jorge-Chavelas for $1,937,500 and
Moreno-Abarca for $562,500.
                                      II.
      Louisiana law applies in this diversity case. Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938). Our task is to “determine as best [we] can [how] the
Louisiana Supreme Court would decide” it. Gulf & Miss. River Transp. Co. v.
BP Oil Pipeline Co., 730 F.3d 484, 488 (5th Cir. 2013) (quotation omitted).
When the absence of a controlling high court decision requires us to make an
“Erie guess” about Louisiana law, we consider many of the same sources we
use when guessing the law of other jurisdictions: decisions and reasoning of
the state’s courts; general rules of the jurisdiction, such as those governing
statutory interpretation; and secondary sources like treatises. Id. at 488–89.
But Louisiana’s “civilian methodology” means the pecking order of those
sources is different than it is for a common law state. Boyett v. Redland Ins.
Co., 741 F.3d 604, 607 (5th Cir. 2014). Louisiana’s “Constitution, codes, and
statutes” are of paramount importance to its judges. Am. Int’l Specialty Lines
Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003). The doctrine
of stare decisis, a creature of common law, is alien to the civilian system.
Boyett, 741 F.3d at 607. Unlike stare decisis, which can flow from one decision,
in the civil system numerous court decisions must agree on a legal issue to
establish jurisprudence constante (French for constant jurisprudence). And
even when that consensus exists in the caselaw, it remains only persuasive
authority for the Erie guess; “we are not strictly bound” by the decisions of
Louisiana’s intermediate courts. Am. Int’l Specialty Lines, 352 F.3d at 261
(quoting Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988
(5th Cir. 1992)); see generally Alvin B. Rubin, Hazards of a Civilian Venturer
in Federal Court: Travel and Travail on the Erie Railroad, 48 LA. L. REV. 1369
(1988).
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                                              A.
       The primacy of legislation under the civil law tradition guides our
analysis of the question Farm Bureau’s primary argument poses: Does
Louisiana’s choice to extend workers’ compensation—usually reserved for
employees—to one class of independent contractors apply to the employees of
those independent contractors and thus immunize Harang from this suit?
       As noted above, workers’ compensation laws are a statutory compromise
granting employers immunity from negligence suits 3 in exchange for their
guaranteeing a lesser recovery for on-the-job injuries. 4 Within that general
framework, states have experimented with the scope of both the coverage and
the immunity.        It is no different in Louisiana.            For instance, although
independent contractors generally are excluded from Louisiana’s workers’
compensation regime, there is an exception. Section 23:1021(7) 5 of Louisiana’s
Revised Statutes states:
       “Independent contractor” means any person who renders service,
       other than manual labor, for a specified recompense for a specified
       result either as a unit or as a whole, under the control of his
       principal as to results of his work only, and not as to the means by
       which such result is accomplished, and are expressly excluded
       from the provisions of this Chapter unless a substantial part of the
       work time of an independent contractor is spent in manual labor
       by him in carrying out the terms of the contract, in which case the



       3 Immunity does not extend to an employer’s intentional torts. La. Rev. Stat. Ann.
§ 23:1032(B).
       4 Among other limits, two potentially sizable categories of damages—pain and

suffering and punitive damages—are not recoverable in Louisiana as workers’ compensation.
Those benefits are limited to three types of loss: a partial compensation for lost wages, see
La. Rev. Stat. Ann. § 23:1221(1)–(3), medical expenses, id. § 23:1203, and so-called “schedule”
losses compensating for particular disfigurements, id. § 23:1221(4)(a)–(r); see also 13 H.
ALSTON JOHNSON III, LA. CIV. LAW. TREATISE, WORKERS’ COMPENSATION LAW AND
PRACTICE § 271 (5th ed. 2018).
       5 We note, to avoid confusion, that changes to the Louisiana workers’ compensation

laws moved this provision from its previous position in section 1021(6) to section 1021(7).
Some cases discussed in this opinion cite the older section.
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      independent contractor is expressly covered by the provisions of
      this Chapter.
In other words, an independent contractor who is engaged primarily in manual
labor has a claim for workers’ compensation against his principal.         More
importantly to Farm Bureau, that principal is immunized from a negligence
suit. La. Rev. Stat. Ann. § 23:1032.
      Farm Bureau maintains that this statute applies not just to independent
contractors, but also to the employees of independent contractors. In this case,
that would mean that the principal (Harang) is immune from suit by the
employees (Jorge-Chavelas and Moreno-Abarca) of the principal’s independent
contractor (Lowry).
      The text of the statute says otherwise, and that is where we must begin.
See 84 Lumber Co. v. Cont’l Cas. Co., 914 F.3d 329, 334 (5th Cir. 2019)
(explaining that, in Louisiana, “[w]hen a law is clear and unambiguous . . . it
shall be applied as written”) (quotation omitted). Section 1021(7) excludes
most independent contractors from the workers’ compensation regime. But it
grants coverage to contractors who spend a “substantial part” of their time
providing “manual labor.”    In either situation, the statute addresses only
independent contractors.
      Farm Bureau’s argument that the provision brings plaintiffs under the
workers’ compensation law fails at this most basic requirement. As the term
indicates, an independent contractor is “one that contracts” with the principal.
See Contractor, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002)
(also defining “contractor” as “a party to a bargain”). Under this widespread
understanding of the term, Jorge-Chavelas and Moreno-Abarca are not
Harang’s contractors; they never entered into an express or implied agreement
with the company. La. Civ. Code Ann. art. 11 (“The words of a law must be
given their generally prevailing meaning.”). A common example illustrates

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                                 No. 18-30388
this. Assume a homeowner hires a pest control company to exterminate bugs.
The company becomes the homeowner’s contractor. But that typically does not
result in an agency relationship between the homeowner and the employee of
the pest control company.
      Other language in section 1021(7) confirms that the statute is referring
to “independent contractor” in this ordinary sense of the term—one who has a
contractual relationship with the principal.     The statute excepts only an
independent contractor for whom a substantial part of his work is “spent in
manual labor by him in carrying out the terms of the contract.” (emphases
added). And the relevant contract is one “for a specified recompense for a
specified result either as a unit or as a whole.” But, as in this case, the
employees of an independent contractor are typically not parties to “the
contract,” which would be between the principal and the contractor.
      What little guidance we have from the Supreme Court of Louisiana is
consistent with this plain meaning of the statute. In Lushute v. Diesi, the court
remarked that the exception was meant to extend to a contractor engaged in
manual labor “in carrying out the terms of his contract with the principal.” 354
So. 2d 179, 182 (La. 1977) (emphasis added). This suggests the state high court
would adopt this natural reading—that the statute covers only contractors
themselves—rather than Farm Bureau’s more expansive one.              And that
comports with the Louisiana Supreme Court’s general approach to workers’
compensation laws.     When interpreting the immunity afforded employers,
“every presumption should be on the side of preserving the general tort or
delictual rights of an injured worker against the actual wrongdoer, in the
absence of explicit statutory language limiting or excluding such rights.”
Champagne v. Am. Alt. Ins. Corp., 112 So. 3d 179, 184 (La. 2013) (quoting
Roberts v. Sewerage & Water Bd. of New Orleans, 634 So. 2d 341, 346 (La.
1994)).
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       Despite the absence of that necessary statutory command, three
Louisiana intermediate court decisions have held or suggested that principals
are immune from tort suits brought by their contractors’ employees if those
employees were engaged in manual labor. In Lumar v. Zappe Endeavors,
L.L.C., an employee of an independent contractor sued his employer’s principal
in tort. 946 So. 2d 188 (La. App. 5 Cir. 2006). Louisiana’s Fifth Circuit Court
of Appeal held that, because a contractor “performs its duties through its
employees,” the “limitations applicable to [the contractor] are also applicable
to its employees.”      Id. at 191.    Two other courts relied on Lumar not to
immunize an employer, but to find a contractor’s employee was entitled to
recover workers’ compensation from the contractor’s principal. Courtney v.
Fletcher Trucking, 111 So. 3d 411, 418 n.6 (La. App. 1 Cir. 2012); Moss v.
Tommasi Constr., Inc., 37 So. 3d 492, 499 (La. App. 3 Cir. 2010).
      Three decisions do not jurisprudence constante make. That is especially
true when the court that first announced the rule Farm Bureau presses us to
adopt declined to follow it just three years later. In Daigle v. McGee Backhoe
& Dozer Service, the Fifth Circuit Court of Appeal denied a claim for workers’
compensation brought by an independent contractor’s employee against the
contractor’s principal. 16 So. 3d 4 (La. App. 5 Cir. 2009). As a dissent in that
case pointed out, following Lumar would have made the contractor’s employee
eligible for workers’ compensation under section 1021(7). 6 Id. at 8 (Winsberg,
J., dissenting).     The majority instead suggested that an employee of a
contractor is eligible for workers’ compensation against his employer’s
principal, if at all, through a separate provision, section 23:1061, which defines
“statutory employment.”         Id. at 7.       That statute authorizes, in certain


       6 The plaintiff in Daigle made the same point, albeit without citing Lumar. Original
Brief of Eddie Daigle, Daigle v. McGee Backhoe & Dozer Serv., 16 So. 3d 4 (La. App. 5 Cir.
2009), 2008 WL 5478293, at *7–8.
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circumstances, a claim for workers’ compensation by a contractor’s employee
against the contractor’s principal “as if he were [that] principal’s employee.”
13 H. ALSTON JOHNSON III, LA. CIV. LAW. TREATISE, WORKERS’ COMPENSATION
LAW AND PRACTICE § 121 (5th ed. 2018) (emphasis in original).
       Other Louisiana courts have likewise analyzed cases like this one
through the lens of statutory employment, explaining that section 1061
“provides guidance as to when a contractor’s employee, rather than the
contractor himself, may recover under the principal’s workers’ compensation
liability.” Miller v. Higginbottom, 768 So. 2d 127, 132 (La. App. 2 Cir. 2000);
see also Prejean v. Maint. Enters., Inc., 8 So. 3d 766, 770 (La. App. 4 Cir. 2009);
Poirrier v. Cajun Insulation, Inc., 459 So. 2d 737, 738–39 (La. App. 4 Cir. 1984).
Louisiana’s leading workers’ compensation treatise agrees that statutory
employment is the proper framework for analyzing whether the employee of
an independent contractor can recover workers’ compensation from the
principal. See JOHNSON III, supra § 82 (noting the contractor’s pursuit of
compensation would be analyzed under section 1021(7) while his employee
“must seek compensation under the different test of [section] 1061”).
       That makes sense as the terms of the statutory employment statute
directly address the employee-of-an-independent-contractor situation we
confront. When applicable, workers’ compensation is the exclusive remedy for
a contractor’s employee against the principal.                       La. Rev. Stat. Ann.
§ 23:1061(A)(1). The catch is that the relationship must be formed by contract.
Id. § 23:1061(A)(3). 7 No such contract exists in this case, which explains why
Farm Bureau does not seek section 1061’s help. But the existence of this



       7 There is another way to create the statutory employment relationship known as the
“two contract” theory, but it is not applicable to this case. La. Rev. Stat. Ann. § 23:1061(A)(2);
see also Allen v. Ernest N. Morial-New Orleans Exhibition Hall Auth., 842 So. 2d 373, 379
(La. 2003).
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                                  No. 18-30388
express avenue for employees of contractors to seek workers’ compensation
from a principal (and in turn for those principals to seek immunity) further
supports limiting section 1021(7) to independent contractors themselves, not
their employees. La. Civ. Code Ann. art. 13 (“Laws on the same subject matter
must be interpreted in reference to each other.”); Fontenot v. Reddell Vidrine
Water Dist., 836 So. 2d 14, 28 (La. 2003) (“It is a fundamental rule of statutory
construction that when two statutes deal with the same subject matter, the
statute specifically directed to the matter at issue must prevail as an exception
to the more general statute.”).
        Sections 1021(7) and 1061 are both deviations from typical workers’
compensation principles, but they serve different purposes. Section 1021(7)
protects a specific class of independent contractors who would not otherwise be
entitled to benefits. It was added because, when it came to manual laborers,
the “distinction between contractor and employee had become so tenuous and
so difficult to administer that the cases were in a state of almost hopeless
confusion, and many injustices were apparent.” JOHNSON III, supra § 78. To
settle the seemingly interminable debate, the Louisiana legislature resolved
that those who contracted to do manual labor were entitled to benefits, no
matter what a multifactor test said about their relationship to the principal.
Id.
        Section 1061 addresses a different concern—contractors who lack the
assets to pay workers’ compensation. To encourage principals to hire solvent
contractors, the statute offers them a choice. If a principal enters into a
statutory    employment    contract,   in   exchange   for   assuming     workers’
compensation liability, it obtains two benefits: 1) tort immunity from the
contractor’s employees; and 2) indemnification from the contractor if those
employees recover workers’ compensation from the principal. See La. Rev.
Stat. Ann. § 23:1061(B). Not a bad option if you hire a solvent contractor (but
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if the contractor is insolvent, indemnification won’t help). Or those principals
can choose to forego immunity if they would rather limit their vulnerability to
workers’ compensation claims. So, although “[o]rdinarily a principal is not and
should not be subjected to the compensation claims of his contractor’s
employees,” statutory employment uses the promise of immunity and
indemnification to encourage principals to agree otherwise.                  JOHNSON III,
supra § 78; see also id. at § 121 (noting that the interposition of a contractor
between the principal and the contractor’s employees “would not deprive the
employee of protection so long as the intermediary contractor was solvent or
protected by insurance”).
         This    statutory   employment       law   that     targets   the    employment
relationship       we   confront,   together      with    the   ordinary     meaning      of
section 1021(7), tangential but informative guidance from Louisiana’s highest
court, and the view of a leading authority on Louisiana workers’ compensation
law, trumps a handful of decisions from intermediate state courts, one of which
has backtracked from its earlier view. The district court’s Erie guess is a solid
one. 8       Section 1021(7) does not obligate a principal to provide workers’
compensation to the employees of its independent contractors, so it does not
afford Harang immunity from this suit. 9



         8Farm Bureau asked us to certify this question about the manual labor exception to
the Supreme Court of Louisiana. Because our analysis leads us to conclude that the issue is
not a close one, we decline that invitation.
        9 Farm Bureau contends that our interpretation of the manual labor exception

threatens to “obliterate” its role within Louisiana’s workers’ compensation regime. But we
do nothing to displace that statute where its text says it applies—when an independent
contractor herself is primarily engaged in manual labor. If anything, it is Farm Bureau’s
reading of the manual labor exception that threatens to displace the role of another statute.
If employees of independent contractors engaged in manual labor are automatically entitled
to workers’ compensation from the principal, that would create a large exception to
section 1061’s usual rule that a principal is liable for such claims only when a statutory
employment relationship is created by contract. La. Rev. Stat. Ann. § 23:1061(A)(3). And

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                                             B.
       Even if plaintiffs are not covered as Harang’s independent contractors,
Farm Bureau argues that the workers’ compensation regime still applies for a
more traditional reason: the plaintiffs were Harang’s employees. It says that
two different provisions treat the plaintiffs as employees.
       The parties call the first the “presumed employee” provision. It provides
that a “person rendering service for another in any trade[], business[] or
occupation[] . . . is presumed to be an employee.” La. Rev. Stat. Ann. § 23:1044.
Farm Bureau does not dispute the general view of Louisiana courts that this
presumption is overcome when the worker lacks an express or implied
employment agreement with the business. See, e.g., Dustin v. DHCI Home
Health Servs., Inc., 673 So. 2d 356, 359 (La. App. 1 Cir. 1996). Just as we do
now, the district court rejected the “presumed employee” argument for
immunity on that ground because, as we have already explained, plaintiffs did
not have an express or implied agreement with Harang.                       They are not
presumed employees. 10


Farm Bureau’s view leads to other interpretive problems. As plaintiffs’ counsel noted at oral
argument, if an independent contractor like Lowry is engaged primarily in the provision of
manual labor, which of its employees are entitled to benefits from the principal? Only those
actually engaged in manual labor, or would Harang also be liable to pay workers’
compensation to Lowry’s office manager?
       Nor does our decision render workers’ compensation unavailable to the employees of
an independent contractor. As in this case, the direct employer (Lowry) is responsible for
workers’ compensation.
       10 There is a factual and logical flaw with a more nuanced argument Farm Bureau

makes under this statute. It contends: 1) that the presumption of employee status is
overcome if the worker is an independent contractor, see Hillman v. Comm-Care, Inc., 805
So. 2d 1157, 1161 (La. 2002), but 2) section 1021(7) explicitly includes independent
contractors engaged primarily in manual labor in Louisiana’s workers’ compensation regime,
and 3) Jorge-Chavelas and Moreno-Abarca were engaged in manual labor, so 4) they are
presumed employees. This syllogism falls apart at step two. Section 1021(7) does not bring
manual laborers back under the presumption. That is because it does not render manual
laborers employees—it just entitles those independent contractors to workers’ compensation
from their principal. JOHNSON III, supra § 74. In any event, we have already held that

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                                              C.
       Farm Bureau’s final recourse is to characterize the plaintiffs as Harang’s
borrowed employees.            Louisiana makes borrowing employers (“special
employers” in civil law lingo) and lending employers (“general employers”)
liable “jointly and in solido to pay” workers’ compensation for injuries suffered
by a borrowed employee. La. Rev. Stat. Ann. § 23:1031(C). In exchange for
that joint liability to pay workers’ compensation, both the special and general
employer are immune from negligence suits. Id.
       The borrowed servant doctrine arises in many areas, with some of its
deepest roots in maritime law. See Standard Oil v. Anderson, 212 U.S. 215
(1909). When applying the Louisiana workers’ compensation version, courts
use either a nine- or ten-factor test to determine whether a borrowed
employment relationship exists.            The two tests are essentially identical.
Compare McGinnis v. Waste Mgmt. of La., L.L.C., 914 So. 2d 612, 616 (La. App.
2 Cir. 2005) (describing nine-factor test), with Billeaud v. Poledore, 603 So. 2d
754, 756 (La. App. 1 Cir. 1992) (describing ten-factor test). The district court
applied the ten-factor test, but under either one and under any standard of
review 11 the result is the same: Jorge-Chavelas and Moreno-Abarca were not
borrowed employees.
       First and foremost, Lowry at all times controlled its planters. See Lastie
v. Cooper, 167 So. 3d 150, 153 (La. App. 5 Cir. 2014). It chose which planters



plaintiffs are not Harang’s independent contractors. They are further removed as the
employees of Harang’s independent contractor.
        11 Farm Bureau contends that we should review the district court’s ruling on this

question de novo, while the plaintiffs instead believe the proper standard is clear error. They
are both right. While ultimately the plaintiff’s “borrowed servant status is a legal issue”
reviewed de novo, the factors considered in making that determination are “factual” and their
application is reviewed for clear error. Sanchez v. Harbor Const. Co., Inc., 968 So. 2d 783,
786 (La. App. 4 Cir. 2007); see also Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617
(5th Cir. 1986) (explaining that a “district court decides the borrowed employee issue as a
matter of law,” but characterizing the factors as “factual ingredients”).
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went to which farms, planters were required “to work all hours as directed by
[Lowry] personnel,” and Harang’s owner himself admitted he could not control
the planters. There was no agreement recognizing a borrowed employment
relationship, the planters never acquiesced to being borrowed employees,
Lowry maintained a close relationship with the planters throughout the
season, only Lowry could fire the planters, and it—not Harang—was obligated
to pay them. The only factors weighing in favor of a borrowed employment
relationship—that the planters were doing Harang’s work for which Harang
provided the tools—do not overcome the number and importance of the factors
weighing against it. We therefore also reject Farm Bureau’s contention that
Harang was a borrowing employer.
                                    ***
     Plaintiffs were neither employees of Harang nor its independent
contractors. Instead, they were employees of Harang’s independent contractor.
That means Harang enjoys no immunity from suit.
     The judgment is AFFIRMED.




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