IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30430
Summary Calendar
JOANN W. PIERCE,
Plaintiff-Appellant,
NORTHBROOK PROPERTY & CASUALTY
INSURANCE COMPANY,
Intervenor-Appellant,
versus
HOBART CORP., ET AL.,
Defendants,
MARTIN MARIETTA CORPORATION,
a/k/a MARTIN MARIETTA MANNED
SPACE SYSTEMS,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(89-CV-2843-B)
October 27, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
Joann Pierce and Northbrook Property & Casualty Insurance
Company appeal from the United States District Court's grant of
summary judgment to Martin Marietta Corporation, holding that
Martin Marietta is the statutory employer of Pierce. Under
Louisiana's Workers' Compensation Act, statutory employers are
immune from tort suits brought by individuals injured while
acting the scope of their employment.1 We have jurisdiction, 28
U.S.C. § 1291, and we now affirm.
I.
1
Louisiana's Workers' Compensation Act provides in
pertinent part:
Where any person (in this section referred to as 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 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.
LSA-R.S. 23:1061. In addition, such statutory employers are
immune from suits brought by the covered employees:
The rights and remedies herein granted to an employee or his
dependent on account of an injury, or compensable sickness
or disease for which he is entitled to compensation under
this Chapter, shall be exclusive of all other rights and
remedies of such employee, his personal representative,
dependents, or relations, against his employer, or any
principal or any officer, director, stockholder, partner or
employee of such employer or principal, for said injury, or
compensable sickness or disease. For purposes of this
Section, the word "principal" shall be defined as any person
who undertakes to execute any work which is a part of his
trade, business, or occupation in which he was engaged at
the time of the injury, or which he had contracted to
perform and contracts with any person for the execution
thereof.
LSA-R.S. 23:1032.
2
In 1978, the National Aeronautics and Space Administration
contracted with Martin Marietta to build components of the space
shuttle at the Michoud Assembly Facility. In 1982, the parties
amended the contract to add to Martin Marietta's contractual
obligations the responsibility of operating the Michoud facility
according to the Facilities Operating Plan. Pursuant to the FOP,
Martin Marietta was to "operate such cafeterias, dining room,
kitchens and storerooms as necessary to serve the operations" and
to "provide trained personnel to prepare and serve all food, food
products, confections, non-alcoholic beverages and other
products." Martin Marietta later contracted with Morrison's
Custom Management to operate the cafeterias and perform Martin
Marietta's food service obligations under the NASA contract.
On two, separate occasions in 1988, Pierce, an employee of
Morrison's, allegedly slipped and fell while working at her job
at the Michoud facility. Pierce filed suit in state court
against Martin Marietta and Hobart Corporation, the manufacturer
of the dishwater that allegedly leaked water onto the cafeteria
floor causing Pierce to fall. Alleging diversity, Hobart removed
the action to federal court. Northbrook intervened to recover
the workers' compensation benefits it had paid to Pierce, and
Pierce amended her complaint to name the United States, the owner
of the Michoud facility, as an additional defendant. Hobart and
the United States were subsequently dismissed from the suit.
The district court granted Martin Marietta's first motion
for summary judgment, holding that, under Louisiana's Workers'
3
Compensation Act, Martin Marietta was Pierce's statutory employer
since Morrison's was performing part of Martin Marietta's "trade,
business, or occupation" at the time of the injury. However,
finding a genuine issue of material fact existed whether
Morrison's contract work for Martin Marietta was specialized --
an ingredient of the "trade, business, or occupation" test -- we
vacated the summary judgment and remanded for further
proceedings. Pierce v. Hobart Corp., 939 F.2d 1305 (5th Cir.
1991).
On remand, Martin Marietta again sought summary judgment,
this time alleging that it was the statutory employer of Pierce
under the "dual contract" doctrine. The district court twice
denied summary judgment.
Upon consent of the parties, the case was referred to a
magistrate judge for trial. At a preliminary conference, the
magistrate judge agreed to reexamine whether Martin Marietta was
the statutory employer of Pierce under the "dual contract"
doctrine. Finding that no genuine issue of material fact
existed, the magistrate judge granted summary judgment to Martin
Marietta. This appeal followed.
II.
Northbrook first claims that the district court applied the
incorrect legal standard by failing to distinguish between
contracts for the performance of services and contracts for the
provision of services. Relying on Duvall v. Lake Kenilworth,
Inc., 467 So.2d 850 (La. App. 1984), cert. denied, 472 So.2d 919
4
(La. 1985), and Chauvin v. Gulf Coast Minerals, Inc., 509 So.2d
622 (La. App.), cert. denied, 512 So.2d 1175 (La. 1987),
Northbrook argues that while the statutory employer defense
applies where the contract is for the performance of services,
the defense is not available where the principal's contract with
the third party only requires it to provide services. We
disagree.
Duvall held that "to have agreed to pay the cost of a
service (e.g., electricity, telephone, pest control) . . . is not
to have 'contracted to perform' a work" within the statute's
meaning. 467 So.2d at 854 (emphasis omitted). Even if we were
to agree with Northbrook that Duvall's distinction between
contracts to provide and contracts to perform correctly describes
Louisiana law, we do not see how that fact advances Northbrook's
argument. The district court correctly held that, to establish
the "dual contract" statutory employer defense, Martin Marietta
must show 1) that it entered into a contract with a third party,
2) that pursuant to that contract, work must be performed, and 3)
that in order for Martin Marietta to fulfill its contractual
obligation to perform the work, it entered into a subcontract for
all or part of the work performed. Gobert v. McDermott, Inc.,
634 So.2d 873, 874-75 (La. App. 1993); Duncan v. Balcor Property
Management, Inc., 615 So.2d 985, 989 (La. App. 1993), cert.
denied, 617 So.2d 936 (La. 1993). As the district court
recognized, Duvall's distinction between contracts to provide and
contracts to perform is fully consistent with the second prong of
5
the inquiry requiring that work be performed pursuant to the
terms of the contract.2 In short, the district court did not
apply the incorrect legal standard to the dispute at hand.
Northbrook next argues that the district court erred in
holding that no genuine issue of material fact exists that the
food services provision of the NASA contract requires work to be
performed by Martin Marietta. Emphasizing the contract's use of
the verb "provide", Northbrook contends that "the 'Cafeteria' is
clearly set out as a service which Martin Marietta was not
expected to perform and did not contract to perform but rather
contracted to provide."
We reject Northbrook's contention. That Martin Marietta
promised it would "provide" trained personnel to operate the
cafeteria does not signify that the contract did not obligate it
to perform work. See Chauvin v. Jefferson Parish Sch. Bd., 595
So.2d 728, 732 (La. App. 1992) (holding that contract requiring
ACC to "provide and administer a program of treatment and/or
services" obligated ACC to perform work). The FOP stated that
Martin Marietta was "responsible for the operation of
cafeterias." Moreover, Jim Cain, Martin Marietta's manager of
contracts, testified in his deposition that the use of the word
"provide" instead of "perform" did not have any particular
significance, much less denote that Martin Marietta was not to
2
Offering even less support for Northbrook's argument,
the Louisiana Court of Appeals in Chauvin recognized that the
lower court had applied Duvall, distinguishing between contracts
to perform and contracts to provide, but the court of appeals
rested its decision on other grounds. 509 So.2d at 628.
6
perform the food services itself. Stated another way, Martin
Marietta, unlike the apartment owner in Duvall, was contractually
bound to perform the service. It did not, as was the case in
Duvall, simply agree to pay the cost of a service which it was
never obligated itself to provide. See also Benoit v. Grey Wolf
Drilling, Inc., 520 So.2d 1104, 1107 (La. App. 1987) ("Unlike
Duvall, Grey Wolf did not simply obligate itself to provide a
service, it obligated itself to drill an oil and gas well."),
cert. denied, 522 So.2d 566 (La. 1988).
In addition, noting that the FOP divides Martin Marietta's
contractual obligations between "make" or "buy" duties,
Northbrook argues that the FOP's categorization of the cafeteria
as a "buy" duty creates a genuine issue of material fact by
denoting that Martin Marietta never intended to perform the
cafeteria services itself. We disagree. The FOP does not compel
Martin Marietta to subcontract the cafeteria services. Instead,
"[t]he Make/Buy arrangement may be changed based on economic
conditions at the time of subcontract expiration, contractual
changes, availability of skilled personnel, etc." In addition,
Jim Cain stated that the make/buy determinations, which were
originally made by Martin Marietta and not NASA, bore no
particular significance and that Martin Marietta would not breach
the contract if it were to perform any of the "buy" duties
itself. Indeed, under the terms of the FOP itself, Martin
Marietta remained "responsible for the operation of cafeterias."
7
Moreover, even if NASA and Martin Marietta had contemplated
at the time they negotiated the primary contract that a
subcontractor would perform the food service duties, such
intention is immaterial. It is the nature and extent of the
contractor's contractual duties, not the parties' intention at
that time they negotiated the contract, that determines whether
Martin Marietta performed work under the NASA contract.
Otherwise, a general contractor who did all its work through
subcontractors would not qualify as a principal -- a proposition
rejected by the Louisiana courts. See Bradford v. Village Ins.
Co., 548 So.2d 106 (La. App.) (holding contractor who employed
only one person full-time and who customarily did most of its
work through subcontractors was statutory employer of
subcontractor's employee), cert. denied, 552 So.2d 396 (La.
1989).
III.
We hold that there is no genuine issue of material fact that
Martin Marietta contracted with NASA to operate the cafeterias at
the Michoud facility, that it undertook to perform work under the
terms of the contract, and that it contracted with Morrison's to
perform its contractual duties. Martin Marietta need demonstrate
no more to qualify as the statutory employer of Joann Pierce.
AFFIRMED.
8