     Case: 13-31199      Document: 00512564817         Page: 1    Date Filed: 03/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 13-31199                                FILED
                                  Summary Calendar                        March 18, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
Brian Simmons

                                                 Plaintiff-Appellant
v.

Honeywell International Inc.

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CV-674


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Brian Simmons appeals summary judgment in favor of
Honeywell International Inc. (“Honeywell”) on tort claims arising out of
injuries incurred when Simmons was exposed to toxic fumes while upgrading
the air compression system at a Honeywell facility. Summary judgment is
proper if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). We review


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 13-31199
summary judgment de novo. Swope v. Columbian Chems. Co., 281 F.3d 185,
190 (5th Cir. 2002).
      Simmons is a repair technician employed by Ingersoll-Rand, which was
contracted to provide certain services to Honeywell facilities. It is undisputed
that the relevant contract conferred upon Honeywell an employer status with
respect to Ingersoll-Rand employees performing any contracted services. The
existence of such a contract establishes a rebuttable presumption that
Honeywell was the statutory principal of Simmons for the purposes of the
Louisiana Workers’ Compensation Act. See LA. REV. STAT. ANN. § 23:1061.
Consequently, because no one disputes that Simmons was providing services
pursuant to the contract, he is presumptively limited to the remedies provided
by the state workers’ compensation system.
      A plaintiff may rebut the statutory presumption of principal status by
showing that the work performed was not “an integral part of or essential to
the ability of the principal to generate that individual principal’s goods,
products, or services.”     Id. § 23:1061(A)(1).      Simmons argues that the
uninstalled air receiver he was servicing could not be “essential” to the facility’s
operation because the “plant was producing their [sic] products before, during,
and after” the work performed. This reasoning has already been rejected by
the Louisiana courts. See Everett v. Rubicon, Inc., 2004-1988 (La. App. 1 Cir.
6/14/06); 938 So. 2d 1032, 1041–43 (collecting cases and rejecting similar
reasoning offered by a cement contractor).            Moreover, the unrebutted
testimony of the project manager indicates that, although the receiver
Simmons was servicing was not operating, that unit was part of a larger
system that was functioning and essential to the safe operation of Honeywell’s
production facility. Simmons has offered no evidence to the contrary. Given
the “expansive” and “liberal” reach of the statutory provision, the district court
correctly concluded that Simmons has provided no evidence that the system
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                                 No. 13-31199
and associated work were not integral and essential to the facility’s operation.
See Jackson v. St. Paul Ins. Co., 2004-0026 (La. App. 1 Cir. 12/17/04); 897 So.
2d 684, 689. Accordingly, Simmons has not overcome the presumption of
employer status.
      Before the district court, Simmons also argued that the Louisiana
Workers’ Compensation Act does not apply because the alleged injury
“result[ed] from an intentional act.” See LA. REV. STAT. ANN. § 23:1032(B). Yet
Simmons did not plead this exception in his complaint, nor is there any
indication that Simmons has moved to amend. We further find the record
devoid of any facts sufficient to allege an intentional tort. Cf. Swope, 281 F.3d
at 194 (reversing summary judgment after finding that employer knew
employee was repeatedly being exposed to chemicals and might have known
“to a substantial certainty” that such exposure would result in physical harm).
Regardless, Simmons did not brief this court on the issue and has thus waived
the argument. FED. R. APP. P. 28(a)(9), (b).
      Accordingly, for the reasons stated herein and in further detail by the
district court, summary judgment is AFFIRMED.




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