                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 March 31, 2005
                      _____________________
                                                        Charles R. Fulbruge III
                          No. 04-30779                          Clerk
                        Summary Calendar
                     ______________________

MICHAEL G. OLSEN, Individually and on
behalf of Cody Lee Olsen, on behalf of
Corey Wendell Olsen; KAYLEEN RENEE OLSEN,
Individually and on behalf of Cody Lee
Olsen, on behalf of Corey Wendell Olsen,

                                            Plaintiffs - Appellants

                               versus

CITGO PETROLEUM CORP.; ET AL.,

                                                        Defendants,

CITGO PETROLEUM CORP.,

                                            Defendant - Appellee.
_________________________________________________________________

HERBERT VERRET; JUNE VERRET,

                                            Plaintiffs - Appellants

                               versus

CITGO PETROLEUM CORP.; ET AL.,

                                                        Defendants,

CITGO PETROLEUM CORP.,

                                            Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
      USDC Nos. 2:01-CV-2413-PM-APW and 2:01-CV-2414-PM-APW
_________________________________________________________________
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     In 1994, Citgo Petroleum Corp. (“Citgo”) and I.M.T.C., Inc.

(“IMTC”) entered into a contract for the performance of maintenance

and construction services at Citgo’s refinery in Calcasieu Parish,

Louisiana.     IMTC subcontracted part of the work to Triad Electric

and Controls, Inc. (“Triad”).      Plaintiffs-appellants Michael G.

Olsen and Herbert Verret (“plaintiffs”) were employed by Triad.

The subcontract between IMTC and Triad provided that Triad’s

employees were the statutory employees of IMTC.       In June 2000,

Citgo and IMTC executed a change order which provided that Citgo

was the statutory employer of all IMTC personnel assigned to

provide services under the contract between IMTC and Citgo.       On

October 16, 2000, the plaintiffs were injured following a steam

release at the refinery. They filed suit against Citgo and others,

seeking damages for their injuries.

     The district court granted summary judgment for Citgo, holding

that the plaintiffs were statutory employees of Citgo.    Therefore,

their exclusive remedy against Citgo was under the Louisiana

workers’ compensation statutes.

     The plaintiffs contend that issues of material fact exist as

to the type of work contemplated by the contract between Citgo and


     *
      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.

                                   2
IMTC, and whether the work that was being performed at the time of

the steam release was within the scope of work specified in the

contract; that the June 2000 change order adding the requisite

statutory employer language is not effective because it refers to

a contract bearing a different number than the original contract

between Citgo and IMTC; that the self-serving affidavit provided by

Citgo,    explaining   that   Citgo’s   contract   numbering   system   had

changed and that the original contract between Citgo and IMTC had

been assigned the same number referred to in the change order, was

insufficient to satisfy Citgo’s summary judgment burden; and that

Citgo’s actions rose to the standard of gross negligence such that

it is barred from asserting the statutory employer defense.

     In a thorough and well-reasoned opinion, the district court

considered and rejected each of the plaintiffs’ arguments.              The

district court noted that, although the original contract between

Citgo and IMTC bore a number different from the number of the

contract referred to in the change order, Citgo had submitted an

affidavit, from a source that the plaintiffs acknowledged to be

credible, explaining that Citgo’s contract numbering system had

changed and that the original Citgo-IMTC contract now bore the same

number as the contract referred to in the change order.**               With

respect to the scope of work contemplated by the contract, the

     **
      We decline to consider the plaintiffs’ contention, made for
the first time on appeal, that the addendum made a retroactive
substantive change to a contract to which Triad was not a party,
and thus was not valid against plaintiffs.

                                    3
district court quoted the broad contract language (describing the

“scope of work” as “to perform and complete general mechanical

maintenance   and    construction    services”)   and   cited   deposition

testimony establishing that IMTC was the only company that worked

on routine capital projects at Citgo’s Calcasieu Parish refinery in

1999 and 2000.      The district court held that the actions of Citgo

and its agents did not rise to the level of an intentional tort

under Louisiana law because Citgo’s failure to more closely inspect

its equipment or to have additional safety devices installed and

operating   at   the   time   of   the   plaintiffs’    injuries    did   not

constitute a desire for the plaintiffs to be hurt.

     After consideration of the briefs and de novo review of the

record, we conclude that the plaintiffs’ challenge to the summary

judgment is without merit and that the district court did not err

by granting summary judgment for Citgo.        Accordingly, the summary

judgment is

                                                                   AFFIRMED.




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