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Insurance Co. of North America v. Gaylord Container Corp.6/23/2000
Appellants, Murphy Johnny LaBauve ("LaBauve") and Insurance Company of North America, the workers' compensation insurer for V.P. Fairley (LaBauve's employer), appeal from a summary judgment granted in favor of Gaylord Container Corporation ("Gaylord"). The trial court found that a two-contract statutory employer relationship existed between LaBauve and Gaylord, which entitled Gaylord to tort immunity from LaBauve's personal injury claim pursuant to La. R.S. 23:1061. This court reverses.
LOUISIANA REVISED STATUTE 23:1061
Statutory employment status is derived from La. R.S. 23:1061, and it has evolved both legislatively and jurisprudentially through the years. Prior to the statute's amendment in 1989, in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La. 1986), the Louisiana Supreme Court abandoned the previously accepted "integral relation" test between the contractor's work and the principal's trade, business or occupation to determine a statutory employment relationship. Berry precluded statutory employer status for work that was specialized per se, or in those instances in which the principal was not participating in the contract work at the time of the accident. Berry, 488 So.2d at 938-939. The decision in Berry also enumerated specific factors to be considered in determining the existence vel non of statutory employment.
Louisiana Revised Statute 23:1061, as amended in 1989, was changed to provide in pertinent part:
A. When any person, in this Section referred to as the "principal", undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person, in this Section 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 principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him .... The fact that work is specialized or nonspecialized, is extraordinary construction or simple maintenance, is work that is usually done by contract or by the principal's direct employee, or is routine or unpredictable, shall not prevent the work undertaken by the principal from being considered part of the principal's trade, business, or occupation, regardless of whether the principal has the equipment or manpower capable of performing the work.
Following the shakeup of the Berry test by the 1989 amendment to La. R.S. 23:1061, the appellate courts rendered conflicting interpretations. Construction of the amendment ranged from a denunciation of Berry, and return to the "integral relation" test, to a mere relaxation of the rigid and mechanical application of the test framed in Berry. See Favron v. Gulf States Utilities Company, 93-1603, pp. 6-8 (La. App. 1st Cir. 11/23/94), 649 So.2d 983, 986-987; Kerner v. Marice Guillot Realty, Inc., 96- 0271, pp. 3-4 (La. App. 4th Cir. 3/26/97), 692 So.2d 19, 21, writ denied, 97-1093 (La. 6/20/97), 695 So.2d 1353.
In Kirkland v. Riverwood International USA, Inc., 95-1830 (La. 9/13/96), 681 So.2d 329, 335, the Louisiana Supreme Court clarified the interpretation to be applied to the 1989 amendment of La. R.S. 23:1061. The court explained that the legislative amendment constituted a retraction of the Berry pronouncement that specialization was determinative of the absence of a statutory employment relationship; however, the court emphasized that consideration of "all pertinent factors under the totality of circumstances" was not intended to be superceded. Kirkland, 9
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