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McGinnis v. Waste Management of Louisiana10/26/2005
or other similarly situated personnel would not be considered the employees of Waste Management. McGinnis agreed to the work situation, in fact seeking out the work on his uncle's crew. The general employer, Labor Finders, was in the business of providing labor and McGinnis remained its general employee. Waste Management furnished the garbage truck, driver, other crew, and all related equipment for the job. The new or "special" employment was the intent of McGinnis in going to work for Labor Finders, and lasted for three months prior to the accident. The right to discharge McGinnis lay with both employers, but Waste Management could refuse to retain any personnel sent my Labor Finders with eight hours' notice. Finally, Labor Finders has the obligation to pay McGinnis but did so only upon receipt of a time sheet from Waste Management.
Admittedly, Waste Management's agreement with Labor Finders provides that "no personnel shall be actual employees of the company." Nonetheless, this provision does not negate the "special employer" status of Waste Management under R.S. 23:1031 C. In fact, the agreement appears to be precisely the type of situation contemplated by the statute -- that of a worker employed by, and under the control and direction of, the special employer at the time of his injury . As a matter of law, both Labor Finders and Waste Management are entitled to the tort immunity of R.S. 23:1032.
McGinnis further argues that even if Waste Management is entitled to tort immunity, its employee and insurer are not. This argument lacks merit. Waste Management was the general employer of Bryant and its immunity extends to him by virtue of R.S. 23:1032 A(1)(b):
This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any * * * employee of such employer or principal under any dual capacity theory or doctrine.
The liability of ACE is governed by its policy covering Waste Management. McGinnis argues that the policy is ambiguous in that the body of the policy would seem to cover torts committed by Bryant, who is an "insured" under the policy, while an endorsement for "fellow employee coverage" would seem to exclude it. This alleged ambiguity, however, is unavailing to McGinnis. ACE's liability arises only if Waste Management is legally obligated to pay damages to McGinnis. Because of the immunity of R.S. 23:1032, Waste Management is not so obligated. Moreover, ACE's policy ยง B 3 clearly excludes "any obligation for which the 'insured' or the 'insured's' insurer may be held liable under any workers' compensation, disability benefits or unemployment compensation law or any similar law." In short, ACE's policy does not cover this type of claim.
Conclusion
For the reasons expressed, we affirm the judgment of the district court. Costs are to be paid by the plaintiff, Cedric McGinnis.
AFFIRMED.
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