  Case: 09-30613   Document: 00511202644   Page: 1   Date Filed: 08/13/2010




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

                                               FILED
                                                              August 13, 2010
                              No. 09-30613
                                                              Lyle W. Cayce
                                                                   Clerk



RAFAEL JOSEPH,

                                       Plaintiff-Appellant,

versus

SHELL CHEMICAL, LP; WYATT CONSTRUCTION, LLC.;
MOTIVA ENTERPRISES, LLC; WYATT FIELD SERVICES COMPANY;
S&B ENGINEERS AND CONSTRUCTORS, LIMITED;
UNIDENTIFIED PARTY,
as the Insurer of S&B Engineers and Constructors, Limited,

                                       Defendants-Appellees.


                     ********************




WALTER JEREMY DANIELS, IV,

                                       Plaintiff-Appellant,

versus

SHELL CHEMICAL, LP; MOTIVA ENTERPRISES, LLC;
WYATT FIELD SERVICES COMPANY,

                                       Defendants-Appellees.
   Case: 09-30613          Document: 00511202644        Page: 2    Date Filed: 08/13/2010




                      Appeals from the United States District Court
                          for the Eastern District of Louisiana
                                    No. 2:07-CV-5489




Before JOLLY, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


        Rafael Joseph and Walter Daniels, IV, sued Shell Chemical, LP (“Shell”),
Motiva Enterprises, LLC (“Motiva”), and Wyatt Field Services Company (“Wy-
att”) for personal injuries they sustained while performing maintenance at an
oil refinery. The district court granted summary judgment for Shell, Motiva, and
Wyatt on the ground that they were statutory employers. We affirm.


                                                I.
        Shell and Motiva hired Wyatt as a general contractor to perform a main-
tenance project at Motiva’s refinery. Wyatt subcontracted with Atlantic Scaf-
folding Company (“Atlantic”) to conduct the necessary scaffolding. Joseph and
Daniels, employees of Atlantic, were injured during the course of the project
when a steam valve blew out, permitting a release of hot oil and steam.
        Joseph and Daniels sued Shell, Motiva, and Wyatt in tort to recover dam-
ages for their injuries. Shell/Motiva 1 and Wyatt moved for summary judgment,
claiming to be statutory employers under section 23:1061(A) of the Louisiana


        *
         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.
        1
            Shell and Motiva filed a joint motion for summary judgment and a joint brief on ap-
peal.

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Revised Statutes. The district court granted both motions, holding that Joseph
and Daniels were limited to recovery under Louisiana’s workers’ compensation
scheme, L A. R EV. S TAT. A NN. § 23:1031 et seq. Joseph and Daniels appeal.


                                         II.
      We review a summary judgment de novo, applying the same standard as
did the district court. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507
(5th Cir. 2003). Summary judgment is proper “if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(c). We view all facts and evidence in the light
most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros.
Inc., 453 F.3d 283, 285 (5th Cir. 2006).


                                        III.
      Joseph and Daniels claim that Wyatt, Shell, and Motiva failed to meet the
statutory employer requirements under Louisiana law. We disagree.
      Subsection 23:1061(A)(1) provides that a general contractor, or “principal,”
is a statutory employer when it “undertakes to execute any work, which is a part
of his trade, business, or occupation and contracts with any person, in this Sec-
tion referred to as the ‘contractor’, for the execution by or under the contractor
of the whole or any part of the work undertaken by the principal . . . .” The
statute then describes two alternative situations that give rise to statutory em-
ployment: (1) where the principal has contracted to perform work and subcon-
tracts all or a portion of the work to another (also known as the “two contract”
theory), L A . R EV . S TAT. A NN. 23:1061(A)(2); or (2) where the principal enters a
written contract recognizing it as a statutory employer of the other party’s em-


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ployees, L A. R EV. S TAT. A NN. 23:1061(A)(3). See Daigle v. McGee Backhoe & Do-
zer Serv., 16 So. 3d 4, 5 (La. App. 5th Cir.), writ denied, 18 So. 3d 113 (La. 2009).
      Joseph and Daniels first claim that the district court erred in granting Wy-
att’s motion for summary judgment under subsection 23:1061(A)(2). That sub-
section states: “A statutory employer relationship shall exist whenever the ser-
vices or work provided by the immediate employer is contemplated by or includ-
ed in a contract between the principal and any person or entity other than the
employee’s immediate employer.” § 23:1061(A)(2). In Allen v. State ex rel. Er-
nest N. Morial-New Orleans Exhibition Hall Auth., 842 So. 2d 373, 379 (La.
2003), the court held that the “two contract” defense applies where “(1) the prin-
cipal enters into a contract with a third party; (2) pursuant to that contract,
work must be performed; and (3) in order for the principal to fulfil its contractual
obligation to perform the work, the principal enters into a subcontract for all or
part of the work performed.”
      Joseph and Daniels argue that the court erred in granting Wyatt’s motion
for summary judgment, because the subcontract between Wyatt and Atlantic
violated the terms of the general contract between Shell/Motiva and Wyatt.
More specifically, they contend that Wyatt’s failure to obtain Shell/Motiva’s writ-
ten consent before hiring a subcontractor, as required by the general contract,
precludes it from meeting the second and third elements of Allen. As for the
second element, Joseph and Daniels claim that hiring Atlantic without prior
written approval was not “pursuant to” Wyatt’s contract with Shell/Motiva, but
rather in breach of it. Similarly, regarding the third element, they maintain
that Wyatt’s subcontract with Atlantic was an “avoidance” of the general con-
tract, rather than a “fulfillment.”
      Those arguments are clever but ultimately unconvincing. Joseph and
Daniels cannot concoct a linguistic intricacy to overcome the obvious import of


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                                   No. 09-30613

subsection 23:1061(A)(2). Stated in terms of the Allen elements, (1) Wyatt en-
tered into a contract with Shell/Motiva; (2) pursuant to that contract, main-
tenance work had to be performed; and (3) to complete the job, Wyatt subcon-
tracted with Atlantic to erect the necessary scaffolding. Wyatt’s situation was
a textbook case of statutory employment under the “two contract” theory.
      Joseph and Daniels next claim that the district court erred in granting
Shell/Motiva’s motion for summary judgment under subsection 23:1061(A)(3).
That subsection states:

        Except in those instances covered by Paragraph (2) of this Sub-
      section, a statutory employer relationship shall not exist between
      the principal and the contractor’s employees, whether they are dir-
      ect employees or statutory employees, unless there is a written con-
      tract between the principal and a contractor which is the employee’s
      immediate employer or his statutory employer, which recognizes the
      principal as a statutory employer. When the contract recognizes a
      statutory employer relationship, there shall be a rebuttable pre-
      sumption of a statutory employer relationship between the principal
      and the contractor’s employees, whether direct or statutory employ-
      ees. This presumption may be overcome only by showing that the
      work is not an integral part of or essential to the ability of the prin-
      cipal to generate that individual principal’s goods, products, or ser-
      vices.
L A. R EV. S TAT. A NN. § 23:1061(A)(3).

      Joseph and Daniels claim that Shell and Motiva did not have a contract
with Atlantic, the immediate employer, so they cannot be statutory employers.
As the district court found, however, Shell and Motiva had a written contract
with Wyatt that made them statutory employers of Wyatt’s employees, whether
statutory or direct. Given that Wyatt was Joseph’s and Daniels’s statutory em-
ployer under subsection 23:1061(A)(2), there is a rebuttable presumption that
Shell and Motiva were also their statutory employers. Joseph and Daniels have
not even attempted to rebut that presumption. Therefore, the district court was


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correct in holding that Shell and Motiva met subsection 23:1061(A)(3)’s statutory
employment requirements.

      AFFIRMED.




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