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
1
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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