     Case: 10-30651 Document: 00511425544 Page: 1 Date Filed: 03/28/2011




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

                                                 FILED
                                                                           March 28, 2011

                                       No. 10-30651                         Lyle W. Cayce
                                                                                 Clerk

LARRY GROOVER; AMBER LEE WELLS, natural guardian and mother of
Brianna Sadie Nicole; LAURA CRISTINA MARCADO, natural guardian and
mother of Matthew Gabriel Nickolas,

                                                   Plaintiffs - Appellants
v.

CAMP DRESSER & MCKEE INC., also known as CDM; WILLIAM E.
ROUEGE; ZURICH AMERICAN INSURANCE COMPANY; ACE
AMERICAN INSURANCE COMPANY,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                        USDC No. 2:07-cv-00252-CJB-SS


Before REAVLEY, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
       Camp Dresser & McKee (CDM) contracted with St. Tammany Parish,
Louisiana (hereinafter the Parish) to serve as an independent contractor and
supervise and manage the removal and clean up of debris resulting from
Hurricanes Katrina and Rita. After competitive bidding, the Parish hired OMNI


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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Pinnacle, LLC (OMNI) to provide all labor and materials necessary to remove
the debris. In accordance with this contract, one of OMNI’s subcontractors hired
Groover Tree Services (GTS) to cut and trim trees at certain locations. As a crew
from GTS was working at one of these sites, Chad Groover (Groover) was
electrocuted and later died from complications related to the incident.
Subsequently, Groover’s family members brought a negligence action against
multiple defendants. The parties filed cross motions for summary judgment.
The district court granted the defendants’ motion for summary judgment. We
AFFIRM.
                                        I.
      On March 20, 2006, the Parish entered into a contract with CDM, a
consulting engineering firm.     Attached to the contract was a “Property
Demolition Debris Removal Plan” (hereinafter PDDR) that defined the scope of
CDM’s services. The PDDR explained that CDM was to act as the Parish’s
designated representative to “monitor, supervise and manage all aspects of the
demolition and debris removal contract and insure that only eligible work is
performed.” Following the signing of CDM’s contract, the Parish awarded OMNI
a contract whereby OMNI agreed to provide “all labor and materials and perform
all of the work” necessary to remove designated hurricane debris. To assist
OMNI in the performance of the contract, OMNI entered into a subcontract with
Cahaba Disaster Recovery (Cahaba). In furtherance of its obligation under the
subcontract with OMNI, Cahaba then entered into a subcontract with Sure
Form, Inc. (Sure Form), which in turn, entered into an oral agreement with GTS.
      On the morning of December 7, 2006, William Rouege (Rouege), a CDM
work-site monitor, received a “Work-Site Plan” (WSP) that identified specific
trees or limbs that the Federal Emergency Management Agency predetermined
eligible and authorized for removal from the designated location. Rouege arrived
at the work site, met with and discussed the work with the property owner, and

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                                      No. 10-30651

awaited the arrival of a work crew. Shortly thereafter, the GTS work crew
arrived at the job site. Rouege performed a walkthrough with the work crew and
identified the specific trees or limbs to be removed according to the WSP. The
work crew began to cut and trim trees identified on the WSP. Groover was
operating an aerial lift machine, which had been delivered on site to reach limbs
and branches that were in the trees high above the work area. As Groover
maneuvered around the job site and raised the basket of the lift machine into
place, the basket made contact with an energized power line, and he was
electrocuted. Seven months later, Groover died from complications resulting
from the incident.
       Subsequently, Larry Groover, Chad Groover’s brother; Amber Lee Wells,
the mother and guardian of Groover’s daughter; and Laura Cristina Marcado,
the mother and guardian of Groover’s son (collectively Plaintiffs), filed suit
against multiple defendants, including CDM, Rouege, and CDM’s insurers,
Zurich American Insurance Company (Zurich), and ACE American Insurance
Company (ACE) (collectively Defendants).1 The Plaintiffs alleged that CDM was
negligent and that the company’s negligence caused Larry Groover to suffer
mental anguish when he witnessed his brother’s death.
       The Defendants filed a motion for summary judgment. Relevant here,
they alleged that they did not have a legal duty to protect Groover from injury.
The Plaintiffs filed a cross motion for partial summary judgment, asking the


       1
          The Plaintiffs filed suit against numerous defendants, and the defendants filed
several third-party claims. Relevant to the present appeal, the Plaintiffs filed suit against
CDM, Rouege, Zurich, ACE, Scottsdale Insurance Company (hereinafter Scottsdale), Omni,
and Cahaba. In Groover v. Scottsdale Ins. Co., 586 F.3d 1012 (5th Cir. 2009), a panel of this
court affirmed the district court’s grant of summary judgment in favor of defendants
Scottsdale, Omni, and Cahaba. At issue in this case is the Plaintiffs’ appeal of the district
court’s grant of CDM, Zurich, and Rouege’s joint motion for summary judgment. At the
district court, ACE adopted this motion for summary judgment. Thus, the district court’s
judgment also applied to ACE. In a letter to this court, on November 1, 2010, ACE adopted
CDM’s filing with this court, claiming that its interests are aligned with CDM’s.

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district court to conclude that the Defendants had a statutory duty, under the
Louisiana Overhead Power Line Safety Act (OPLSA), L A. R EV. S TAT.
§§ 45:141–46, to contact the local electric company and have the power lines de-
energized prior to the incident. The district court held a hearing on the parties’
motions. After hearing arguments from the parties, the district court orally
granted the Defendants’ motion for summary judgment. The Plaintiffs timely
appealed.
                                        II.
                                        A.
      This court reviews a district court’s grant or denial of summary judgment
and application of state law de novo. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(a).   If the movant
demonstrates the absence of a genuine issue of material fact, the burden shifts
to the non-movant to provide specific facts showing the existence of a genuine
issue for trial. Id. 56(c), (e).
                                        B.
      This is a diversity case, and Louisiana state law governs the issue of
liability. Under Louisiana law, the threshold issue in a negligence action is
whether the defendant owed the plaintiff a duty. Audler v. CBC Innovis Inc.,
519 F.3d 239, 249 (5th Cir. 2008) (citing Meany v. Meany, 639 So. 2d 229, 233
(La. 1994)). Whether a duty is owed is a question of law. Audler, 519 F.3d at
249. “In deciding whether to impose a duty in a particular case, Louisiana
courts examine whether the plaintiff has any law to support the claim that the
defendant owed him a duty.” Id. (internal quotation marks omitted). Here, the
Plaintiffs have not pointed to sufficient evidence to establish nor provided case
law to support their contention that CDM owed GTS a duty.

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      The Plaintiffs claim that CDM was the principal and GTS was an
independent contractor. Thus, they contend, CDM had a duty to GTS because
CDM allegedly controlled and expressly authorized the unsafe work practices
that led to Groover’s death. See Roberts v. Cardinal Servs. Inc., 266 F.3d 368,
380 (5th Cir. 2001) (explaining that, under Louisiana law, a principal is not
liable for the injuries resulting from the negligent acts of an independent
contractor, unless the principal retained “operational control” over the
contractor’s work, expressly or impliedly approved the unsafe work practices, or
the activity is ultrahazardous). However, the Plaintiffs have not shown, as a
threshold matter, that a principal-independent contractor relationship existed
between CDM and GTS.
      It is well-established under Louisiana law that “the relationship between
the principal and the independent contractor is in large measure determined by
the terms of the contract itself.” Duplantis v. Shell, 948 F.2d 187, 193 (5th Cir.
1991) (internal quotation marks omitted). By examining the contract, the court
can determine to what extent the alleged principal reserved the right to control
the alleged independent contractor’s work. Id. Here, the record shows—and the
parties acknowledge—that CDM and GTS did not have a contract. CDM’s
contract was with the Parish. GTS’s contract was an oral agreement with Sure
Form. It appears that the Plaintiffs ask us to presume that the relationship
between CDM and GTS was that of principal-independent contractor based on
CDM’s contract with the Parish, the PDDR, and CDM’s General Health and
Safety Plan for its employees. Having closely examined the record, we decline
to hold that, as a matter of law, a principal-independent contractor relationship
existed between the parties.
      Finally, the Plaintiffs’ argue that the district court erred in dismissing
their partial motion for summary judgment because CDM’s alleged duty arises
under the OPLSA. However, this argument is contrary to the OPLSA’s purpose.

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The OPLSA provides a means by which powerline operators and owners can hold
individuals and companies liable “for all damages, costs, or expenses incurred
by the owner or operator as a result” of contact with powerlines during the
course of unauthorized work. L A. R EV. S TAT. § 45:144(A). See generally Moreno
v. Entergy Corp., 49 So. 3d 418, 420–21 (La. Ct. App. 5th 2010) (energy company
sought indemnification pursuant to the OPLSA). Thus, the Plaintiffs’ arguments
are unavailing and the district court did not err in dismissing their motion.
                                      III.
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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