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Merrick v. Bredero Price Co.9/25/2001
AFFIRMED IN PART; REMANDED IN PART.
In this personal injury case, plaintiff, Alastair Merrick, appeals a summary judgment dismissing all of his claims against defendant, Bredero Price Company. We affirm in part and remand in part.
On April 1, 1997, Bredero Price ("Bredero") contracted with Evans Temporary Service ("ETS") of New Orleans, Inc.,to supply general labor at its pipe yard on Peters Road in Harvey. On April 14, 1997, Alastair Merrick ("Merrick"), while working at Bredero's pipe yard as a laborer, was injured when he and a Bredero employee attempted to dislodge a pipe jammed in the machine that rolled pipes out of the building. While attempting to dislodge the pipe, Merrick's hands were caught between the roller and the pipe and crushed.
On April 3, 1998, Merrick filed suit for damages against Bredero and ABC Manufacturing Company, Inc. for negligence and intentional tort. He alleged that Bredero was negligent because it failed to adequately maintain the machinery on its site and/or modified the machinery, which caused Merrick's injuries. The petition also alleged that Bredero knew with substantial certainty its actions would cause Merrick's injury . The petition further alleged that Bredero thwarted Merrick's attempts to learn the name of the manufacturer of the machine that injured him, refused to cooperate by disclosing the manufacturer's name and intentionally denied him access to the machinery, an intentional cause of Merrick's emotional distress. On April 16, 1998, Merrick amended his petition to name Bredero as the manufacturer of the machine, alleging that Bredero knew that its machine was malfunctioning, still continued to use the defective machine, and knew with substantial certainty that its machine would cause injury.
On April 27, 1998, Bredero answered Merrick's petition, denying his allegations and pleading nine affirmative defenses, including their status as Merrick's statutory employer. On February 12, 1999, ETS, Merrick's employer, intervened seeking reimbursement for medical and compensation benefits paid to Merrick.
On February 9, 2000, Bredero filed a Motion for Summary Judgment alleging that Merrick's recovery against them was limited to workers' compensation because Merrick was their statutory employee, under La.R.S. 23:1061. On July 31, 2000, the trial judge granted summary judgment in favor of Bredero and dismissed Merrick's suit. On August 31, 2000, at Bredero's request, the trial judge rendered an amended judgment, pursuant to La.C.C.P. art. 1951, to correct the spelling of one word in the judgment. Notice of judgment was issued on August 31, 2000. On September 29, 2000, Merrick filed his Motion for Appeal.
On appeal, Merrick asserts that the trial judge erred in finding that the relationship between Bredero and ETS was not one of vendor-vendee. He also contends that, even if there is no vendor-vendee relationship in this case, that the trial judge failed to properly apply the statutory employer test established in Kirkland v. Riverwood International USA, Inc., 95-1830 (La. 9/13/96), 681 So.2d 329. He specifically contends that Bredero was not his statutory employer because ETS, an independent enterprise that insured its workers, was his direct employer and he was engaged in work for ETS as part of his contract with ETS at the time of the incident.
Workers' compensation is the exclusive remedy for persons injured in the course and scope of their employment. La. R.S. 23:1032. Employees of contractors are considered to be employees of the principal under certain circumstances set out by statute. Under La. R.S. 23:1061(A), as it read at the time of Merrick's injury, an employee is a statutory e
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