Kinsey v. Farmland Industries, Inc.

United States Court of Appeals,

Fifth Circuit.

No. 94-40609.

Summary Calendar.

Ted KINSEY and Kathryn Kinsey, Plaintiffs-Appellants,

and

Travelers Insurance Company, Intervenor-Plaintiff-Appellant,

v.

FARMLAND INDUSTRIES, INC., Defendant-Appellee.

Dec. 9, 1994.

Appeal from the United States District Court for the Western
District of Louisiana.

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Plaintiffs-Appellants and Intervenor-Appellant appeal the

district court's grant of summary judgment on grounds that

Defendant-Appellee was a statutory employer for purposes of Section

23:1061 of the Louisiana Worker's Compensation Act, and the

district court's denial of their motions for reconsideration

pursuant to Federal Rule of Civil Procedure 60(b). They challenge

the court's finding of statutory employer status, arguing that the

work performed was not an integral part of Defendant-Appellee's

business. We find the work of installing a replacement flare stack

was an integral part of the business of Defendant-Appellee. We

affirm.

FACTS AND PROCEDURAL HISTORY

On July 12, 1991, Ted Kinsey ("Kinsey"), an employee of Bayou

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Sale Contractors, Inc. ("Bayou"), was injured at the Pollock,

Louisiana location of Farmland Industries, Inc. ("Farmland") when

the scaffold board upon which he was standing while welding

collapsed. Kinsey filed a worker's compensation claim which was

accepted by Travelers Insurance Company ("Travelers"), the worker's

compensation insurer of Bayou and paid.

On July 8, 1992, the Kinseys filed suit against Farmland

seeking damages for personal injury and loss of consortium.

Farmland filed a third-party demand against Bayou, its insurer

Underwriters at Lloyds of London, and David H. Stiel, Jr., d/b/a

David H. Stiel, Jr. Agency. Farmland subsequently moved to dismiss

its third-party demand against Underwriters at Lloyds of London,

which was granted by the district court on November 23, 1992.

Farmland's third-party demand against David H. Stiel, Jr. was later

dismissed on October 27, 1993.

On July 2, 1993, Travelers intervened for indemnity, medical

and incidental expenses paid to or on behalf of Kinsey as a result

of the July 12, 1991 accident. Farmland filed a motion for summary

judgment on July 15, 1993 arguing that it was Kinsey's "statutory

employer" under section 23:1061 of the Louisiana Worker's

Compensation Act. The district court granted the motion and

entered judgment for Farmland, and against the Kinseys, on November

24, 1993.

The Kinseys and Travelers appealed the summary judgment order,

which was subsequently dismissed by this Court because the

indemnity issue raised by Farmland in a August 13, 1993 summary

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judgment motion had not been resolved by the district court. On

April 11, 1994, the Kinseys filed a motion for reconsideration of

the November 24, 1993 summary judgment order pursuant to Rule

60(b). Travelers filed a Rule 60(b) motion adopting the Kinseys'

motion on April 28, 1994. On May 20, 1994, the district court

entered a memorandum order denying Farmland's motion for summary

judgment on the indemnity issue. On June 27, 1994, the court

entered an order denying both Rule 60(b) motions.

On June 28, 1994, the Kinseys' appeal was entered for the

district court's ruling on their motion for reconsideration entered

on June 27, 1994. Travelers' appeal from the June 27, 1994 and the

November 24, 1993 rulings was entered on July 5, 1994. On July 19,

1994, the Kinseys entered an Amended Notice of Appeal to include

the court's ruling on November 24, 1993.

FEDERAL RULE OF APPELLATE PROCEDURE 4

Farmland contends that this Court lacks jurisdiction to

review the district court's summary judgment ruling on November 24,

1993 because both the Kinseys and Travelers failed to file timely

appeals. Specifically, Farmland argues that final disposition of

the case was not entered until the court's May 20, 1994 ruling on

the indemnity issue. The Kinseys' June 27, 1994 Notice of Appeal

addressed only the court's ruling on their Rule 60(b) motion, and

not the summary judgment order. The Kinseys' Amended Notice of

Appeal, which added the court's ruling on summary judgment from

November 24, 1993, was not filed within 30 days of the May 20, 1994

final disposition of the case. Farmland also argues that

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Travelers' July 5, 1994 Notice of Appeal was filed more than 30

days after the May 20, 1994 disposition of summary judgment,

although it was timely filed with regard to the court's ruling on

its Rule 60(b) motion. Therefore, both the Kinseys and Travelers

have timely appealed only the court's ruling on their Rule 60(b)

motions.

Rule 4(a)(4) of the Federal Rules of Appellate Procedure

provides:

If any party makes a timely motion of a type specified
immediately below, the time for appeal for all parties runs
from the entry of the order disposing of the last such motion
outstanding. This provision applies to a timely motion under
the Federal Rules of Civil Procedure:

....

(F) for relief under Rule 60 if the motion is served within 10
days after the entry of judgment.

FED.R.APP.P. 4(a)(4) (1994). The rule has the effect of tolling the

30 day time for appeal until after the district court has ruled on

the Rule 60 motion.

In this case, the district court's final disposition of the

summary judgment motion was entered on May 20, 1994. Therefore,

the 30 day time for appeal would begin to run at that date.

However, both the Kinseys and Travelers filed Rule 60(b) motions

prior to the court's May 20, 1994 ruling. We have previously held

that if the final disposition of the case has not been entered at

the time a party files a Rule 60 motion, the motion is timely and

effective for purposes of applying Rule 4(a)(4). See Craig v.

Lynaugh, 846 F.2d 11, 13 (5th Cir.1988). Therefore, the 30 day

time for appeal was tolled until the court ruled on the Rule 60(b)

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motions. The court entered its order denying both motions on June

27, 1994. All subsequent Notices of Appeal were filed within 30

days of the June 27, 1994 order, including the Kinseys' Amended

Notice of Appeal. Therefore, we find that we have jurisdiction

over the district court's grant of summary judgment in this case.

STANDARD OF REVIEW

Review of a motion for summary judgment is plenary. Lodge

Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77, 79 (5th

Cir.1987). Although review is de novo, we apply the same standards

governing the district court's determination. Jackson v. Federal

Deposit Ins. Corp., 981 F.2d 730, 732 (5th Cir.1992). Summary

judgment must be granted if the court determines that "there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c).

To determine whether there are any genuine issues of material fact,

the court must first consult the applicable substantive law to

ascertain what factual issues are material. The moving party bears

the burden of coming forward with proof of the absence of any

genuine issues of material fact through the identification of those

portions of the pleadings, depositions, answers to the

interrogatories, and admissions on file, together with any

affidavits which it believes demonstrates the absence of any

genuine issues of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The

nonmovant is then required to counter the motion for summary

judgment. FED.R.CIV.P. 56(e). "[M]ere general allegations which

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do not reveal detailed and precise facts will not prevent the award

of summary judgment." Nicholas Acoustics, Specialty Co. v. H & M

Const. Co., Inc., 695 F.2d 839, 844 (5th Cir.1983) (quoting Liberty

Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1051 (5th

Cir.1967)). The court must then review all evidence bearing on

those issues, viewing the facts and inferences in the light most

favorable to the nonmoving party. Lavespere v. Niagara Mach. &

Tool Works, Inc., 910 F.2d 167 (5th Cir.1990), cert. denied, ---

U.S. ----, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993).

STATUTORY EMPLOYER

Under the Louisiana Worker's Compensation Act, a "principal"

who engages a contractor to perform work that is part of the

principal's "trade, business, or occupation," is liable to pay any

worker's compensation benefits to an employee of the contractor

injured in the performance of the work. LA.REV.STAT. § 23:1061(A).

A principal who falls within this statute, referred to as a

statutory employer, is immune from any tort liability brought by

the injured statutory employee. See LA.REV.STAT. § 23:1032; see

also Thompson v. Georgia Pacific Corp., 993 F.2d 1166, 1168 (5th

Cir.1993).

A statutory employer relationship exists when the work

performed is a part of the principal's trade, occupation, or

business. The original standard applied for determining statutory

employer status was the "integral relation" test established by the

Louisiana Supreme Court in Thibodaux v. Sun Oil Co., 218 La. 453,

49 So.2d 852, 854 (1950). If the contractor was engaged in work

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that was an integral part of the trade, business, or occupation of

the principal, then the principal was considered a statutory

employer. Id. In 1986, however, the Louisiana Supreme Court

developed the more restrictive test outline in Berry v. Holston

Well Service, Inc., 488 So.2d 934 (La.1986).

In 1989, the Louisiana Legislature amended § 23:1061,

effectively overruling the Berry decision.1 Subsequently, this

Court held that the 1989 amendment "legislatively revised the Berry

test and effective directed the courts back to the previously

discarded "integral relation' test found in Thibodaux." Harris v.

Murphy Oil, U.S.A., Inc., 980 F.2d 991, 993 (5th Cir.1992); see

also Salsbury v. Hood Industries, Inc., 982 F.2d 912, 916 (5th

Cir.1993).

In this case, Farmland decided to replace its flare stack by

installing a new one and then dismantling the old one. Farmland is

in the business of producing ammonia emissions, and the flare stack

is used on a daily basis to reduce the emission of ammonia in the

air. Although the old flare stack was fully functional and

operational, the new flare stack was capable of burning more

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The amendment is as follows:

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.

La.Rev.Stat. § 23:1061.

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ammonia than the old stack.

For purposes of determining Farmland's statutory employer

status, the work at issue is the replacement of the flare stack.

We believe that the replacement of the old flare stack with a new

one capable of burning more ammonia was an integral part of

Farmland's business. The fact that the new flare stack failed to

decrease ammonia emissions in the year following its installation

does not make the work of replacing the flare stack a non-integral

part of Farmland's business. Nor does it create a genuine issue of

material fact with regard to why the flare stack was replaced.

The Kinseys and Travelers also appealed the district court's

denial of their Rule 60(b) motions for reconsideration. We find

that they failed to present any issues that would warrant

reconsideration of the court's grant of summary judgment in this

case.

CONCLUSION

We find that Farmland was Kinsey's statutory employer, and

therefore, the district court properly granted Farmland's motion

for summary judgment. We further find that the district court's

ruling denying the Kinseys and Travelers' motions for

reconsideration pursuant to Rule 60(b) was appropriate. AFFIRMED.

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