                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS         December 19, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                        ___________________                       Clerk
                            No. 03-20407
                       _____________________

                  Robert DeShazo; Andea DeShazo,

                     Plaintiffs - Appellants,

                              versus

          Baker Hughes Oilfield Operations, Inc., Et al,

                            Defendants,

              Baker Hughes Oilfield Operations, Inc.,

                       Defendant - Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                  District Court No. H-00-CV-2698
_________________________________________________________________


Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PER CURIAM.

     Appellants Robert DeShazo and Andea DeShazo appeal from the

district court’s grant of summary judgment in favor of Appellee

Baker Hughes Oilfield Operations, Inc.    Finding no error, we

affirm.

     This appeal concerns what law should apply to Appellants’

     1
      Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.

                                 1
personal injury claims.    Appellant Robert DeShazo sued his former

employer, Baker Hughes Oilfield Operations, Inc. (BHOO) to

recover damages for the injuries he received during an automobile

accident in Egypt.   At the time of the accident, DeShazo was a

passenger; an employee of a BHOO subsidiary was driving.

     Originally, DeShazo filed a Jones Act suit in the Eastern

District of Louisiana.    The district court dismissed that suit

after determining that DeShazo was not a Jones Act seaman.

Subsequently, DeShazo and his ex-wife, Andea DeShazo, filed the

current diversity suit in the Southern District of Texas,

claiming that BHOO was liable for the negligence of its driver.2

The district court granted BHOO’s motion for summary judgment,

concluding that the exclusive remedy provision of the Louisiana

Workers’ Compensation Act barred the DeShazos’ claims.    Attaching

additional evidence, the DeShazos filed a motion for new trial or

for reconsideration, which the district court denied.    This

appeal followed.

     On appeal, the DeShazos make two arguments.    First, they

argue that fact questions about Robert DeShazo’s intent to form a

Louisiana contract make summary judgment improper.    Second, they

argue that the district court erred in applying Louisiana law.

Instead, the DeShazos contend that Egyptian law should apply to

their claims.


     2
      Claims against two other defendants were dismissed.

                                  2
     We review the grant of summary judgment de novo, using the

same standards as the district court.       Hanks v. Transcon. Gas

Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992).      To be

entitled to summary judgment, the movant must show the absence of

any genuine issue of material fact.       Taylor v. Gregg, 36 F.3d

453, 457 (5th Cir. 1994).

     In its ruling on BHOO’s summary judgment motion, the

district court first concluded that DeShazo’s claims were

governed by Louisiana law, specifically the Louisiana Workers’

Compensation Act.    This act provides the exclusive remedy, with

some irrelevant exceptions, for a Louisiana worker injured in the

course of employment.   LA. REV. STAT. § 23:1032.    The district

court concluded that this law barred the DeShazos’ negligence

claims.

     In reviewing this case, we must first determine what law

applies to the DeShazos’ claims.       To begin with, a federal

district court sitting in diversity applies its forum state’s

choice-of-law rules.    Klaxon Co. v. Stentor Elec. Mfg. Co., 313

U.S. 487, 496 (1941).   Thus, the district court here properly

looked to Texas choice-of-law rules to determine what law to

apply.    In general, Texas courts follow the most significant

relationship test when deciding what law to apply in a case.

Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984).

But Texas courts follow Section 184 of the Restatement (Second)


                                   3
of Conflict of Laws when determining whether an exclusive-remedy

provision of a state’s workers’ compensation law applies.     Hughes

Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000).

Section 184 states:

     Recovery for tort or wrongful death will not be permitted
     in any state if the defendant is declared immune from
     such liability by the workmen's compensation statute of
     a state under which the defendant is required to provide
     insurance against the particular risk and under which
     (a) the plaintiff has obtained an award for the injury,
          or
     (b) the plaintiff could obtain an award for the injury,
          if this is the state (1) where the injury occurred,
          or (2) where employment is principally located, or
          (3) where the employer supervised the employee's
          activities from a place of business in the state,
          or (4) whose local law governs the contract of
          employment under the rules of §§ 187-188 and 196.


     The parties agree that the Louisiana workers’ compensation

law can only apply, if at all, under section 184(b)(4).3    Thus,

there are really two questions.   First, could Robert DeShazo

obtain an award for his injury in Louisiana, and second, does

Louisiana law govern his employment contract?

Could Robert DeShazo obtain an award for his injury in Louisiana?

     Under certain circumstances, the Louisiana Workers’

Compensation Act applies to injuries occurring outside Louisiana:

     (1) If an employee, while working outside the
     territorial limits of this state, suffers an injury on
     account of which he, or in the event of his death, his

     3
       Although BHOO voluntarily paid Robert DeShazo money it
called worker’s compensation benefits, the district court
concluded that these payments did not qualify as an “award” for
purposes of § 184. BHOO has not challenged this conclusion.

                                  4
     dependents, would have been entitled to the benefits
     provided by this Chapter had such injury occurred
     within this state, such employee, or in the event of
     his death resulting from such injury, his dependents,
     shall be entitled to the benefits provided by this
     Chapter, provided that at the time of such injury
     (a) his employment is principally localized in this
           state, or
     (b) he is working under a contract of hire made in
           this state.
     LA. REV. STAT. § 23:1032

     Under this extraterritorial provision, the central question

is whether Robert DeShazo was working under a contract of hire

made in Louisiana.   As the DeShazos point out, Louisiana courts

have stated that “[i]n determining the origin of a contract of

hire, the parties’ intent should be paramount.”     Harvey v. B E &

K Constr., 716 So. 514, 516, 30,825 (La. App. 2d Cir. 8/19/98).

The factors for determining whether the parties intended to form

a Louisiana contract include the parties’ domicile, the nature of

the work to be performed under the contract, and the location

where the parties initiated employment.   Id.    DeShazo argues that

fact questions concerning this intent should have prevented the

district judge from granting summary judgment.

     The parties agree about most of the underlying facts.    BHOO

contacted Robert DeShazo at his home in Louisiana to see if he

was interested in working for BHOO in Egypt.    DeShazo was living

and working in Louisiana at the time, and listed an address in

Louisiana as his permanent address on his BHOO employment

application.   DeShazo accepted employment in Louisiana and

dropped off his employment forms at BHOO’s Houma, Louisiana

                                 5
office.   As an employment requirement, DeShazo underwent drug and

alcohol testing in Lousiana.   The initial plane tickets to Egypt

were delivered to DeShazo in Louisiana.   Finally, DeShazo moved

to Mississippi at some point after beginning employment with

BHOO.

     On appeal, the DeShazos argue that Robert DeShazo’s

Louisiana residence was only temporary, however, and that he

maintained his permanent domicile in Mississippi.     According to

the DeShazos, his undisclosed plan to move means that DeShazo

never intended to form a Louisiana contract and that Egyptian law

should apply to the negligence claims.

     The district judge concluded that there were no fact

questions about the parties’ intent to form a Louisiana contract.

The DeShazos argue that the district court erred because they

presented evidence to support a fact question about Robert

DeShazo’s intent.   In support of his contention that he never

intended to form a Louisiana contract, the DeShazos point solely

to Robert’s alleged intent to move to Mississippi.4


     4
       Most of the evidence that the DeShazos cite to as part of
their argument that Robert DeShazo was domiciled in Mississippi
was not before the district court until the motion for new trial.
In particular, the DeShazos’ argument is largely based on the
affidavit that Robert DeShazo signed on August 17, 2002 and filed
on August 19, 2002. Both dates are after the August 8, 2002
summary judgment order. It is this affidavit, not the affidavit
attached to the DeShazos’ summary judgment response, that argues
that DeShazo intended to move to Mississippi. Thus, the district
court’s description of the DeShazos’ statements about intent as
“bald assertions” was not off the mark.

                                 6
     Both sides cite Louisiana cases to support their arguments.

These cases do not present a clear rule; rather, they appear to

be fairly fact-specific.    The Deshazos emphasize two cases in

particular.   In Milligan v. Glenburney Nursing Home, 408 So.2d

40, 41 (La. App. 3d Cir. 1981), the first of these cases, the

plaintiff, a nurses’ aide living in Louisiana, received an

employment application at her home.     The application was for a

Mississippi nursing home.     Id. The plaintiff filled out the

application in Louisiana, but interviewed in Mississippi and

signed papers in Mississippi.     Id.   In Mississippi, the parties

agreed that the plaintiff would be employed, but could not

determine her starting date.     Id. Someone from the nursing home

called plaintiff at her home in Louisiana to tell her of her

starting date.    Id.   After that, the plaintiff reported to work

in Mississippi, and at some point during that work she was

injured.   Id.   The court in Milligan, after reviewing the

relevant factors, concluded that the contract was a Mississippi

one; the parties intended to create a Mississippi employment

relationship and a Mississippi contract.      Id. at 42.

     The DeShazos also point to Robinson v. Independent

Freightway, 673 So.2d 1091, 94-786 (La. App. 5th Cir. 4/16/96).

In Robinson, a truck driver who lived in Louisiana submitted an

application to an Illinois company in Illinois.      Id. at 1093.     He

then underwent federally-required drug and road tests in

Louisiana.    Id. He signed an employment contract in Louisiana and

                                   7
the company then signed the contract in Illinois.     Id.   The trial

court found that Robinson’s contract was not a Louisiana contract

of hire, and the appellate court affirmed those findings. Id.

      In contrast, the district court cited several cases in which

courts found that the parties had formed a Louisiana contract.

The first of these cases is Offord v. Border to Border Trucking,

779 So.2d 1090, 2000-1201 (La. App. 3d Cir. 2/7/01).     In Offord,

the workers’ compensation claimant, a Louisiana resident who

worked as a truck driver for a Texas company, suffered an injury

on the job in Tennessee.     Id. at 1091.   The story of the

claimant’s hiring was as follows.     The defendant company had

brought an employment application to the claimant at his

Louisiana home.   Id. at 1092.   After the claimant filled out the

application in Louisiana, another employee of the defendant

company picked up the application from claimant in Louisiana and

drove it to Texas.   Id.   The claimant received a job offer via a

telephone call to his house in Louisiana and was then transported

to Texas where he completed the remaining employment formalities.

Id.   The Offord court determined that this situation was almost

identical to another case in which a truck driver had been found

to be operating under a Louisiana contract of hire.     Id.    The

court affirmed the administrative judge’s determination that this

was a Louisiana contract of hire.     Id. at 1093.

      The district court also cited Lakvold v. Stevens Transport,

665 So.2d 828 (La. App. 1st Cir. 1995).     In Lakvold, an appeals

                                  8
court reversed a trial court’s conclusion that an employee was

not working under a Louisiana contract.       Id. at 830.   The

employer’s representative had contacted the employee in Louisiana

and gave him an application there.       Id. at 829.   The employee

completed in the application in Louisiana, which was also where

the employer notified the employee that it had accepted his

employment application. Id. The employee went to orientation in

Texas, where he also completed additional employment-related

forms.   Id. at 829-30.    The employer paid for his travel to Texas

for the orientation.      Id.   The court concluded that the contract

had been formed in Louisiana, making it a Louisiana contract of

hire.    Id. at 830.

     The district court correctly concluded that no fact question

existed concerning the parties’ intent to form a Louisiana

contract.    Robert DeShazo’s undisclosed intent to move to

Mississippi does not create a fact question regarding whether the

parties intended to form a Louisiana contract.5        And although the

caselaw is not conclusive, on the whole, the facts here more

resemble Offord than they do Milligan.       DeShazo was called in

Louisiana, where he was living, he completed the paperwork in

Louisiana, he dealt with BHOO’s Louisiana office, and he

originally departed to Egypt from Louisiana.


     5
       Therefore, the DeShazos’ argument that several of the
cases the district court cited were decided after trial, not on
summary judgment, is irrelevant.

                                     9
     The DeShazos also argue that because Robert DeShazo was an

at-will employee, his contract was formed again each time he

reported for work in Egypt.              Because he had moved to Mississippi

before the hitch during which he was injured, Robert DeShazo

argues he was operating under a completely different contract

from the one he entered into originally.               Yet the DeShazos find

little support for the contention that this move changed the

place of contracting.              They only support this argument with broad

language about the nature of at-will employment, particularly

language indicating that parties constantly remake an at-will

contract.       The DeShazos have not, however, pointed to any

Louisiana case in which this principle is use to change the place

where the parties formed a contract.               Louisiana courts seem

unlikely to interpret the statutory language “a contract of hire

made in this state” so that an at-will employee could change

where his contract was made simply by moving to a different state

after being hired.

Does Louisiana law govern DeShazo’s employment contract?

     The second factor in determining whether the Louisiana

Workers’ Compensation Act applies is whether Louisiana law

governs Robert DeShazo’s employment contract with BHOO. RESTATEMENT

(SECOND)   OF   CONFLICT   OF   LAWS § 184.

     Texas courts generally follow Section 196 when determining

what law applies to a contract for services.               Pruitt v. Levi

Strauss & Co., 932 F.2d 458, 461 (5th Cir. 1991).               This section

                                              10
provides:

     The validity of a contract for the rendition of services
     and the rights created thereby are determined, in the
     absence of an effective choice of law by the parties, by
     the local law of the state where the contract requires
     that the services, or a major portion of the services, be
     rendered, unless, with respect to the particular issue,
     some other state has a more significant relationship
     under the principles stated in § 6 to the transaction and
     the parties, in which the event the local law of the
     other state will be applied

This section supports the DeShazos’ argument that Egyptian law

should apply to the contract.   Egypt was, after all, the place

where a major portion of the services were to be rendered, and

the place of performance is generally conclusive of the issue.

Pruitt, 932 at 461 (quoting DeSantis v. Wackenhut Corp., 793

S.W.2d 670, 679 (Tex. 1990)).   But there are exceptions, and for

these exceptions, the question then becomes whether some other

state has a more significant relationship under Section 6 of the

Restatement.

     These relevant factors are:

     (a)   the needs of the interstate and international
           systems,
     (b) the relevant policies of the forum,
     (c) the relevant policies of other interested states
           and the relative interests of those states in the
           determination of the particular issue,
     (d) the protection of justified expectations,
     (e) the basic policies underlying the particular field
           of law,
     (f) certainty, predictability and uniformity of result,
           and
     (g) ease in the determination and application of the
           law to be applied.
     RESTATEMENT (SECOND) OF CONFLICT OF LAWS §6(2).

     The district court found that, under this section,

                                11
Louisiana had a more significant relationship with the contract

than Egypt did.   The district court concluded that by including

the extraterritorial provision, Louisiana expressed a strong

interest in having its workers’ compensation laws applied to

Louisiana workers injured outside the state.    The district court

also concluded that uniform application is important to the

workers’ compensation system’s effectiveness.   These interests,

according to the district court, far outweighed any interest

Egypt might have in having its tort laws applied to a United

States citizen harmed by an employee of a United States company.

And as did the district court, we conclude that, contrary to the

DeShazos’ arguments and charts, “the number of contacts with a

state is not determinative.”   Torrington Co. v. Stutzman, 46

S.W.3d 829, 848 (Tex. 2000).   We agree with the district court’s

thoughtful analysis; Louisiana law applies to Robert DeShazo’s

employment contract, and therefore the DeShazos are limited to

Louisiana workers’ compensation remedies.

AFFIRMED




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