United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 31, 2005
_____________________
Charles R. Fulbruge III
No. 04-30779 Clerk
Summary Calendar
______________________
MICHAEL G. OLSEN, Individually and on
behalf of Cody Lee Olsen, on behalf of
Corey Wendell Olsen; KAYLEEN RENEE OLSEN,
Individually and on behalf of Cody Lee
Olsen, on behalf of Corey Wendell Olsen,
Plaintiffs - Appellants
versus
CITGO PETROLEUM CORP.; ET AL.,
Defendants,
CITGO PETROLEUM CORP.,
Defendant - Appellee.
_________________________________________________________________
HERBERT VERRET; JUNE VERRET,
Plaintiffs - Appellants
versus
CITGO PETROLEUM CORP.; ET AL.,
Defendants,
CITGO PETROLEUM CORP.,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC Nos. 2:01-CV-2413-PM-APW and 2:01-CV-2414-PM-APW
_________________________________________________________________
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
In 1994, Citgo Petroleum Corp. (“Citgo”) and I.M.T.C., Inc.
(“IMTC”) entered into a contract for the performance of maintenance
and construction services at Citgo’s refinery in Calcasieu Parish,
Louisiana. IMTC subcontracted part of the work to Triad Electric
and Controls, Inc. (“Triad”). Plaintiffs-appellants Michael G.
Olsen and Herbert Verret (“plaintiffs”) were employed by Triad.
The subcontract between IMTC and Triad provided that Triad’s
employees were the statutory employees of IMTC. In June 2000,
Citgo and IMTC executed a change order which provided that Citgo
was the statutory employer of all IMTC personnel assigned to
provide services under the contract between IMTC and Citgo. On
October 16, 2000, the plaintiffs were injured following a steam
release at the refinery. They filed suit against Citgo and others,
seeking damages for their injuries.
The district court granted summary judgment for Citgo, holding
that the plaintiffs were statutory employees of Citgo. Therefore,
their exclusive remedy against Citgo was under the Louisiana
workers’ compensation statutes.
The plaintiffs contend that issues of material fact exist as
to the type of work contemplated by the contract between Citgo and
*
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this opinion should not be published and is not precedent except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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IMTC, and whether the work that was being performed at the time of
the steam release was within the scope of work specified in the
contract; that the June 2000 change order adding the requisite
statutory employer language is not effective because it refers to
a contract bearing a different number than the original contract
between Citgo and IMTC; that the self-serving affidavit provided by
Citgo, explaining that Citgo’s contract numbering system had
changed and that the original contract between Citgo and IMTC had
been assigned the same number referred to in the change order, was
insufficient to satisfy Citgo’s summary judgment burden; and that
Citgo’s actions rose to the standard of gross negligence such that
it is barred from asserting the statutory employer defense.
In a thorough and well-reasoned opinion, the district court
considered and rejected each of the plaintiffs’ arguments. The
district court noted that, although the original contract between
Citgo and IMTC bore a number different from the number of the
contract referred to in the change order, Citgo had submitted an
affidavit, from a source that the plaintiffs acknowledged to be
credible, explaining that Citgo’s contract numbering system had
changed and that the original Citgo-IMTC contract now bore the same
number as the contract referred to in the change order.** With
respect to the scope of work contemplated by the contract, the
**
We decline to consider the plaintiffs’ contention, made for
the first time on appeal, that the addendum made a retroactive
substantive change to a contract to which Triad was not a party,
and thus was not valid against plaintiffs.
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district court quoted the broad contract language (describing the
“scope of work” as “to perform and complete general mechanical
maintenance and construction services”) and cited deposition
testimony establishing that IMTC was the only company that worked
on routine capital projects at Citgo’s Calcasieu Parish refinery in
1999 and 2000. The district court held that the actions of Citgo
and its agents did not rise to the level of an intentional tort
under Louisiana law because Citgo’s failure to more closely inspect
its equipment or to have additional safety devices installed and
operating at the time of the plaintiffs’ injuries did not
constitute a desire for the plaintiffs to be hurt.
After consideration of the briefs and de novo review of the
record, we conclude that the plaintiffs’ challenge to the summary
judgment is without merit and that the district court did not err
by granting summary judgment for Citgo. Accordingly, the summary
judgment is
AFFIRMED.
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