as we both represent louisiana form bureau casualty insurance company and louisiana form you're a mutual insurance company this matter is on appeal from a final judgment in the middle district of sugarcane form where they were hand planting sugar cane when they were injured or if the remedy is solely in workers compensation very little background for your honour's the point of her mexican nationals there in the united states on h two a these is for non immigrant agricultural workers they're here to replace labor in the united states where there is a lack of labor  policy is that it is she or meant to protect the insured from parties harang show there's the farmer from third parties people that are outside of the family of employees strangers to the enterprise policies contained in this comes down to this specific language of the louisiana statute but before we dive into that as a background matter let me give you a scenario see if you agree with me if i hire an independent contractor to build a pool in my backyard and then that independent contractor brings you know different people different days five six guys digging the hole and doing all that stuff for a few months to to build the pool would you agree that forgetting the statute just as a matter of agency or basic employment law i would not have any type of employment or agency relationship with the employees of that independent contractor i always you know workers compensation statutes i know company fire along company that the its employees do not have a employment relationship with me but then we go ahead and tell us why do you think the statute changes that normal result sure you employees or joint employees or they're independent contractors doing manual labor they're doing essential part of the trade business an occupational rank sugar's under either scenario there's no coverage under the farm bureau of policies the bench trial facts focus and seem to give us fact findings we would review only for clear error on are they presumed or are they borrowed which emitted tell me if i'm wrong i'm oversimplifying it's multiple factors to say who had control who did these workers think they worked for if the district court made multiple factual findings about they were recruited by lowery they were paid by lowry they were housed by law or their transport by lowery seems hard to say we would overturn that fact germination so my assessment of the case got me pretty quickly to the statutory issue of workman's comp and immunity but that you probably want to preserve all it by operation of law it's by operation of law there's no question if they were not presumed to be employees of a rank shutters which we believe they were then they certainly were employees of an independent contractor and they were certainly doing manual labor just to clear up the first one whether there was a rebuttal of the presumably that's a fact determination and you articulate reasons why you think they are wrong but we would have to come to a priest's sure conviction th ose are facts right there's no confusing ball there but i think it's the application of the facts as found by the judge to the law so what case what louisiana case says in the presumed employee context the multiple factors are reviewed to novo on appeal your honor i don't have an answer for that question but i certainly could no that's right but i know i'm not saying gosh i don't for sure either but the borrowed employ it looks to me as the same it would be many articulated facts nine or ten relevant but i would think the easy in a law on appeal would say those we give deference to the fact finder you had a bench for this job and that doesn't apply to the workman's compensation scheme yes i may be right may be wrong but therefore you can see ram going which is your best arguments going to be this dust has sixty one apply there's no contract here and therefore the employees as judge acosta was requiring don't have workman's comp from the principal harang we've never argued that ten sixty one applied that's the statutory employer statute there's no question there wasn't  a contract recognizing that these employees were employees of the ranch of what louisiana case says one tenth sixty one would apply on its face requiring a contract you can just disregard ten sixty one and say was an employee of aramark which is a fortune five hundred company that employs hundreds of thousands of people they do the concessions in the janitorial work in tiger stadium in  the independent contractor who is actually signing the contract and its employees because necessarily aramark has to do its work clothes routes employees pretty close factually in other cases have followed it but but but there has been criticism of that both in case law and treatises is if i'm right about that is that why both parties are asking us to certify this question well your honor i don't believe there's been criticism of  all the parties in de going did not even brief the issue of the manual labor exception to the end independent contractor definition  liable they should be part of workers compensation protection as well he goes on to point that point out that the manual labor exception it doesn't state that it's applicable only to an independent contractor who is a sole proprietor doing his own work he says that independent contractors who are incorporated for to ridicule persons are not limited by the definition and the point language is that you look out of existence sixty one no  your honor ten sixty one the deals with the employees of an independent contractor when a principal wants to contractually bring them in under their umbrella of workers the workers compensation scheme ten twenty one seven the manual labor exception it protects the manual laborers regardless of whether shouldn't interpret ten sixty one ten thirty one or ten twenty one seven as being at odds they should i was working on mixer but it there is logic to the thought that if you have a principal out there hires the pool contractor and it's just that one independent contractor it would make sense the easy and i would say you're going to we're going to give you workman's comp to the principal but it is a different albeit in tension with loom or even contradiction with it it would be different if the system is assuming the independent contractors like a temp agency they've got a lot of employees we want the workman's comp to work out of them it doesn't shift to the statutory employer they don't get the benefit of immunity unless they write a contract with the i c that says that so it looks like ten twenty one and ten sixty one could work in harmony but that would be contrary to the loom or that's just my thinking but here's a question for you dilute both parties agree that on this third option the best we should do would be certified i thought there was agreement on that and we're sort of testing it we loued if it if it's not an open question but didn't you say you don't object to that certainly don't object to it your honor we don't believe that it's louisiana however don't we see in a supreme court hasn't spoken on the issue of the manual labor exception in quite some time and it could be that the ways in a supreme court could offer some guidance to this all but i don't think it's absolutely necessary in the suitcase we ask for because it's something that was available to us when of we brought the appeal  and we've talked about the the the three cases to some extent it's clear that your honour's are familiar with the three cases that have ruled on the the manual labor exception in louisiana but i would like it looked at the history in the legislative intent behind the manual labor exception and the fourth circuit which happens to be a circuit that did not comment in the other three cases we've relied upon it said there are four factors needed to invoke the manual labor exception the existence of an independent contractor relationship the point the point of in this case argue that there's an independent contractor relationship the performance of manual labor carrying out the contract there's no argument that they used these guys were doing manual labor in the the independent contractor spent a substantial portion of the work doing manual labor there's no argument that they did one hundred percent of their time as manual labor and the fourth one is their work was part of the principals trade this is an occupation no doubt planning sugarcane was an essential part of harangues trade business around the first cross your position throughout trial was adamantly that they aren't independent contractors their employees of your honor our position is they've got to be one of the other they've either got to be a presumptive employee or a joint employee under ten thirty one c or if they're not then they're doing manual labor as an independent contractor but what's important about this most recent case is that it had the benefit of the case that the plaintiffs have a lot upon their interpretation of the statute and that's the last shoot the c case notably none of those four factors laid out in this most recent case were quire scrutiny of contract ok counsel thank you thank you it's either ten sixty one which is the steps to employers statute or it's the manual labor exception here because there's no contractual pretty the statutory ploy or statute applies i'd like to correct one one thing very briefly that i think is important to the to the courts understanding the issue the farm bureau has that that on the motion for summary judgment again in oral argument here again in their brief has said that there is some  sort of strong policy requiring the court to liberally construe the worker's compensation statutes in a way that coverage applies they say the louisiana supreme court holds that special rules apply to the interpretation of the workers at compensation act provisions that was legislatively overruled in two thousand and twelve titled twenty three ten twenty point one gives a very specific  framework for statutory construction and it says disputes concerning the facts and workers compensation cases shall not be given a broad liberal construction in favor of either employees or employers the laws pertaining to workers compensation shall be construed in accordance with the basic principles of statutory construction and not in favor of either the employer or the employee so we're operating under the rules of normal statutory construction so i'd like to turn to  vehemently which is the manual labor exception as we've pointed out you have to have contractual privity and i'll get deeper into that in just a moment when you don't have contractual privity with the party you're trying to seek workers comp benefits from your recourse is statutory employer you're trying to get current benefits from your direct employer's principle that's what ten sixty one covers so there's there you're telling us to certified earth are you not telling us there ought to be very clear we did not ask the court to certify the appellant asked for certification we didn't oppose it we feel comfortable with the louisiana supreme court's ability to your sole recourse is to sixty one statutory immunity and in that case in the absence of a written agreement reserving statutory employer status to the principle that there was no immunity for the principle visa v the w two or  implemented case the employee of the independent contractor so the first area you have to make is this you have to single an independent contractor is just any to ridicule entity that can be an injury to going to sea but that's a little bit that's not really understand the purpose of the manual labor exception one thousand nine hundred forty eight the legislature amended the worker's comp code added the manual labor exception and it's what it is is a definition it defines what is an independent contractor and so we have this definition that says that it's anyone who render service other than manual labor for a specified result and you know for a specified price they are supply you a distinction between an independent contractor versus an employee just the shoot versus d c case talks about that he says they were supplying the definition in one nine hundred forty eight because then at that time this distinction between who's and someone's hurt are they an employee or are they an independent contractor that distinction was becoming difficult to make so that the court  efined independent contractor in a way that sets an independent contractor against an employee now a dreadful entity can't be an employee all right it can be we use that that word independent contractor get workers compensation benefits the definition is there to help us distinguish between who is an employee and who is an independent contractor so that's the first step you have to make to get to the  precedent than others i could i'd say very little i think that on top of the statutory framework that is clear and that this court exercises this court exercises case in that framework in connection with people who get hurt and this court has decided whether the contract is reserving statutory employer status for the principle so in addition to the statutory framework and bloom or is a is a is an appellate decision that was overturned two years later by the same court little little weight at all to that but i would like to say that the second and i think maybe the most important lapse in reasoning the court makes and lou more is they say this we see no reason to distinguish between the independent contractor and the employee of the independent contractor now there's a lot of reasons why you would distinguish between the independent contractor and the employee of the independent contractor now one of them is how do means they got coverage and that would also give immunity to lowry is that fair yes ok so now they're suing instead the principle correct correct so they were injured by an action of one of the employees of sugars so if we're not going to distinguish between the independent contractor and the employee of the independent contractor let me change the facts a little bit i'd wonder how formula would apply in this situation what would have happened if and this is in the record we lowery supplied a whole hierarchy of supervisors people who didn't perform manual labor who went from farm to farm supervising the workers but they were in the field what if one of them had been injured what if one of them had been hit by the tractor in this case since we don't distinguish between the independent contractor supplying manual labor and the employee of the independent contractor wow how would this loom or test even apply would they be covered visa v there's by by that logic i think they would be i think in fact arguably the administrative personnel up in arkansas they are the employees of a of a company an independent contractor supplying manual labor so the administrative payroll folks up in arms all think it hurt their they also have comp rights to shooters down in louisiana who that they've never seen before because of their him because their employer is an independent contractor supply manual labor and there's no reason to distinguish between the contractor and the employees so that that rule falls apart the third thing that the court ignores is the exist in this is this is the elephant in the room it's the existence of ten sixty one it's the existence of a framework that gives us statutory employer status  tell you this would be a massive judicial expansion of comp meaning in the state of louisiana if now that now all you have to do instead of going through borrowed servant analysis instead of looking at ten sixty one to see if the principle contra put in writing with his the in a with the contractor language that sufficiently reserved independent contractor statutory employer status to himself so they can negotiate for protection against tort liability but in doing so they assume that workman's comp that's correct negotiate for that workman's comp stays with lowery but you're saying therefore they can't get the benefit that's correct there is a contract between harang sugar's and larry farms and it does not reserve statutory employer status for harang shooters visa be the w two employees of larry far in that case of page eight forty two it says the third circuit said an independent contractor performing manual labor brings his suit under the provisions of twenty three ten twenty one six that was the manual labor section with subsection six previously and not under the provisions of twenty three ten sixty one which is concerned only with the employees of independent contractors so the court there and there are there are cases in nearly every circuit that used similar language to that when ten sixty one tenses you want to plies when there is no contractual privity between an injured worker and the principal of that worker's employer  when and by the way the nine hundred ninety seven amendment it's in sixty one severely restricted that that's when that's when the legislature gave the option to harangue triggers or any principle to say i because then all they would have had to show is that their direct employer and they were working in the trade business and occupation of the principle my right there almost a whole bunch of problems on a totally separate point than the one today that's it your treasurer it was all about who controls these people well that those are the facts that those that is the only fact centric analysis there we had to put in all of that all of the facts that would pertain to control selection and all of the things that that would weigh in on whether someone  well the current version of that statute which is current us as of twenty thirteen now says while he was carrying out the contract now i didn't put a lot of stuff stock into the word his the  pronoun but the district court and the plaintiffs did and making their argument and i just wanted to point out to the court that that's not how the statute reads now it's not how the statute read at the time of this accident an independent contractor in the word also going back to the terms of the contract that well it goes back to the civil code and then you're agreeing to where the terms what was the permit none of that was addressed principle the terms of the contract in this a supreme court cases on on this issue i thought then we sat i was on a case that issue just a few weeks ago that said under the civil system it is true in common law to be especially in the civil system that language of the statute is  primary importance so our panel we were some in independent intermediate appellate decisions going the other way in and it was written by jack wiener who knows knows louisiana law well and it said the statute trumps intermediate the erie guess is the lower state court decisions and that's the one we fall to in this case and we have three decisions that interpret the manual labor statute the manual labor exception and they are  we were able to get to in the opening but i think it's important that the louisiana supreme court and humphries first is more cat they basically said look after years of dealing with these unwieldy factors that produced delays and in compensation to the point of such as these and inconsistent results both the general and the special employer are labile general employer or the special employer is on the hook for the comm somebody needs to pay the workers and they'll work it out later and that's what that's what needs to happen in this case there's also the case of