1 Firewatchers are responsible for ensuring that an area is safe for welders and others

performing "hot work"—work involving combustible equipment. United States Court of Appeals,

Fifth Circuit.

No. 92–3367

Summary Calendar.

Delays BROCK and Sharilyn Brock, Plaintiffs–Appellants,

v.

CHEVRON U.S.A., INC., et al., Defendants,

Chevron Chemical Company, Defendant–Appellee.

Nov. 10, 1992.

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

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

On December 18, 1989, Delays Brock and Sharilyn Brock filed this action against Chevron

Chemical Company for injuries sustained by Delays on August 28, 1989 at a Chevron plant located

in Louisiana. Asserting that, under Louisiana law, Delays was a statutory employee of Chevron when

he was injured and, therefore, that Chevron is immune from tort liabilit y for Delays' injuries, Chevron

moved for summary judgment. The district court grant ed that motion, and the Brocks appeal.

Finding that Delays was Chevron's statutory employee pursuant to L A .R EV .S TAT .A NN

. § 23:1061

(West 1985) (pre–1990 amendment version), we affirm.

I

The Brocks' claims arise from an accident in which Delays, while working inside a Chevron

plant as a contract firewatcher 1 employed by J.E. Merit Constructors, Inc., slipped and fell in a pool

of an oil lube product produced at the plant. The incident occurred while Delays was preparing an

area for a welding operation to be performed by another contract company employed by Chevron.

The Brocks' case is before this court for th e seco nd time. Initially, Chevron moved for2 See F ED .R.C IV .P. 56(e); Rally's, 939 F.2d at 1263.

summary judgment on the grounds that, under a 1990 amendment to section 1061 of Chapter 23 of

the Loui siana Revised Statutes, Chevron was Delays' statutory employer and immune from tort

liabilit y for his injuries. The district court agreed and granted summary judgment in favor of Chevron,

but, finding that the 1990 amendment to section 1061—which became effective January 1,

1990—only applies prospectively, we reversed and remanded. S ee Brock v. Chevron Chemical Co.,

946 F.2d 1544 (5th Cir.1991). We did not determine whether Chevron is a statutory employer under

section 1061 as it existed before January 1, 1990.

Upon remand, Chevron again moved for summary judgment, this time asserting that Chevron

is a statutory employer under section 1061 as it existed before January 1, 1990 and that, as such, it

is immune from tort liabilit y for Delays' injuries. Again, the distri ct court agreed and entered a

judgment dismissing the Brocks' action. The Brocks appeal from that judgment.

II

In considering the Brocks' appeal from the district court's grant of summary judgment in favor

of Chevron, we review the record de novo. S ee Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th

Cir.1992), cert. denied,

––– U.S.

––––, ––– S.Ct.

––––, ––– L.Ed.2d

–––– 1992 WL 130235 (1992);

International Shortstop, Inc. v. Rally's, 939 F.2d 1257, 1263 (5th Cir.1991), cert. denied,

––– U.S.

––––, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992). Our standard is well settled: Summary judgment is

proper if the party moving for such a judgment establishes that there is an absence of genuine issues

of material fact. See F ED .R.C IV .P. 56(c); C elotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.

2548, 2552, 91 L.Ed.2d 265 (1986); A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.

2505 , 2511, 91 L.Ed.2d 202 (1986); M atsushita Elec. Ind. Col. v. Zenith Radio Corp., 475 U.S.

574, 585–88, 106 S.Ct. 1348, 1355–57, 89 L.Ed.2d 538 (1986). Once a movant has made such a

showing, the nonmovant must establish each of the challenged essential elements of its case for which

it will bear the burden of proof at trial. S ee Catrett, 477 U.S. at 322, 106 S.Ct. at 2552; T opalian,

954 F.2d at 1131. Although the no nmovant may satisfy this burden by tendering depositions,

affidavits, and other competent evidence, 2 "[m]ere conclusory allegations are not competent summary3 The pre–1990 version of section 1061 of Chapter 23 provides:

When any person, in this Section referred to as the "principal", undertakes to

execute any work ... 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

[such an] ... employee ... any compensation under this Chapter which he would

have been liable to pay if the employee had been immediately employed by him.... judgment evidence, and they are therefore insufficient to de feat or support a m oti on for sum m ary

judgment." T

opalian, 954 F.2d at 1131 (citations omitted). In short, "the adverse party's response

... must set forth specific facts showing that there is a genuine issue for trial." F ED .R.C IV .P. 56(e).

Where the nonmoving party fails to make such a showing and the moving party has met its summary

judgment burden, the latter is entitled to summary judgment as a matter of law. F E D .R.C IV .P. 56(c).

III

A

As an Erie court, although we apply federal procedural rules including the federal summary

judgment standard, we apply Louisiana's substantive law. See Erie R. Co. v. Thompkins, 304 U.S.

64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); s ee also Salve Regina College v. Russell,

––– U.S.

––––, ––––, 111 S.Ct. 1217, 1221–23, 113 L.Ed.2d 190 (1991) (under Erie, we review district court

state law determinations de novo). The Louisiana law at issue—Louisiana's Workmen's

Compensation Act as it existed on August 28, 1989—provides that: (1) the remedy offered under

the Act is the exclusive remedy for employees who sustain injuries in the course of their employment,

see L A .R EV .S TAT .A NN

. § 23:1021, et seq.; (2) under the Act, employees are entitled to recover

wo rker's compensation benefits from their employers, s ee L A .R EV .S TAT .A NN

. § 23:1031; (3)

employees are also entitled to recover worker's com pensation from any entity deemed to be their

"statutory employer," see L A .R EV .S TAT .A NN

. § 23:1061; 3 (4) and, because a "princ ipal" (for our

purposes, a person or entity hiring workers through a contractual relationship) statutory employer

is secondarily liable for worker's compensation benefits to an injured employee, such employers are

given tort immunit

y for injuries sustained by their contract employees. See L A .R E V .S TAT .A NN

. §

23:1032, subd. A(1)(a).

We determine statutory employer status under Louisiana law by applying a three-level test4 The court held that:

While certainly he had to be trained to do the work, i.e., taught what his job was

and instructed in fire[-]fighting, the work he was performing was not specialized

work. His duties consisted of covering drains, cleaning up oil spills, and standing

by with fire[-]fighting equipment while hot work was being done. He was not

performing technical work which required extensive and detailed education and/or

training.

The court focused upon the skeletal background requirements for firewatchers—the ability

to read and write English, communicate with plant personnel, take and follow directions,

fight fires, stay alert and react to changing conditions, endure heights and enclosed places,

and lift 50 pounds. The court also acknowledged the minimal amount of training

subsequent to being hired—watching a film illustrating working in confined spaces and the

proper tagging procedures, instruction on the propensities of chemicals produced and formulated by the Louisiana Supreme Court in Berry v. Holston Well Serv., Inc., 488 So.2d 934,

937–38 (La.1986). F irst, focusing on the scope of the contract work, our central question is whether

the contract work is specialized or non-specialized—"whether the contract work requires a degree

of skill, training, experience, education and/or equipment not normally possessed by those outside

the contract field." I

d. at 938. Specialized work is, as a matter of law, "not a part of the principal's

trade, business or occupation, and the principal is not the statutory emplo yer of the specialized

contractor's employees." Id.

Second, where the contract work is non-specialized, we compare the contract work with the

principal's trade, business, or occu pat io n. Our inquiry at this second level includes the following

questions: (a) whether the contract work is "routine and customary," (b) whether the principal has

the equipment and manpower capable of doing the same work, and (c) whether industry participants

normally contract out this type of work. I d. "These guidelines are not absolute or rigid, but are

instead to be appl

ied relatively, taking into consideration the size, complexity, integration (either

horizontal or vertical), or lack thereof, of the principal." B erry, 488 So.2d at 938. T hird, we inquire

whether the principal was actually engaged in the contract work at the time of the contract employee's

injury. Id. at 938–39.

B

Applying the Berry test, the district court found that: (1) "[b]ased upon the submissions of

both parties," Delays was performing non-specialized work of an essentially maintenance nature; 4stored at the Chevron plant, general orientation to the plant, instruction to look for spilled

oil and grease, and training on proper handling of fire-fighting equipment. The total

training time lasts approximately one-half of a day, and the only other requirement is that

firewatchers attend a monthly fire-fighting training session with Chevron employees. (2) the work performed by Delays was "routine, customary, regular and expected" in that "Chevron's

safety policy required that firewatch hands prepare the area where hot work is to be performed by

covering drains and cleaning up any spills"; Chevron supplied the equipment used by its firewatchers;

and "firewatch hands are essential to and part of Chevron's trade, business and occupation"; and (3)

the fact that Delays was actually working in conjunction with another Chevron contract company—he

was preparing an area for hot work to be done by that company—when he slipped and fell suggests

that Chevron was engaged in Delays' work at the time of his injury.

Chevron has established that, u nder the B erry test, the Brocks have presented no claims

capable of succeeding on their merits and, therefore, that the Brocks have failed to raise any genuine

issues of material fact worthy of trial. S ee supra Part II. To survive Chevron's motion for summary

judgment, the burden is upon Chevron to establish each of the challe nged essential elements of its

case for which it would bear the burden of proof at trial. S ee Catrett, 477 U.S. at 322, 106 S.Ct. at

2552; T opalian, 954 F.2d at 1131. To accomplish this, the Brocks rely heavily upon the deposition

testimony of Jimmy Lalonde, senior supervisor o f Merit—the company which directly employed

Delays and supplied firewatchers and general laborers to Chevron and other companies working at

Chevron's Louisiana plant. Specifically, to satisfy the Berry test on a prima facie basis, the Brocks

rely upon Lalonde's testimony that: (1) at the time of Delays' accident, firewatchers received training

beyond t hat given to normal laborers, which, according to the Brocks, suggests that their work is

specialized; (2) because one company, Merit, supplied firewatchers for all contractors and companies

working at the Chevro n plant at the time of Delays' accident (and this suggests that the industry

customarily contracted out this type of work), firewatch work is not part of the trade, business, or

occupation of Chevron, and (3) Chevron employees were not performing firewatch work at the time

of Delays' accident.

15 See, e.g., Saaverda v. Murphy Oil U.S.A., Inc., 930 F.2d 1104, 1108 (5th Cir.1991)

(affirming summary judgment for oil refinery where plaintiff, employed by a contractor performing

maintenance work, was performing preparatory work for the installation of cement columns);

Mozeke v. International Paper Co., 856 F.2d 722, 725–26 (5th Cir.1988) (affirming summary

judgment dismissing contract employee's suit against owner of paper mill where plaintiff and his

employer contracted to perform maintenance work on plant equipment); Seeney v. Citgo

Petroleum Corp., 848 F.2d 664, 666 (5th Cir.1988) (upholding district court's dismissal of

contract pipefitter's claims against owner of petroleum refinery on grounds that pipefitting duties

involve operations that can be performed by "any strong person with mechanical ability");

Boudreaux v. Freeport Chemical Co., 576 So.2d 615, 620 (La.App. 4th Cir.1991) (considering

the entire scope of the contract work and, even though plaintiff narrowly focused on pipefitting

and welding, affirming trial court's summary judgment holding that plaintiff was not a specialized

worker); Manuel v. Odeco, Inc., 563 So.2d 1179, 1181–82 (La.App. 1st Cir.1990) (using

acetylene torch to cut metal into small pieces is "an easily learned task which require[s] no special

skill, training, experience or education" and constitutes non-specialized work), w rit denied, 566

So.2d 401–02 (1990); Singleton v. Marine Shale Processors, 560 So.2d 496, 497–98 (La.App.

1st Cir.1990) (where plaintiff was employed by contractor to clean oxidator unit, upholding

summary judgment for facility owner); Lew is v. Modular Quarters, 508 So.2d 975, 980 (La.App.

3d Cir.1987) (sandblasting and painting require no particular skill or experience and are

non-specialized work). We find that the Brocks' reliance on Lalonde's testimony to establish that firewatch work is

specialized is misplaced. Although Lalonde testified that Merit firewatchers receive one-half of a day

more training than Merit general laborers, Lalonde also testified that this one-half day of extra training

is also given to Chevron's direct employees working at the plant:

Q. Let me ask you this: Fire watchers receive t raining above and beyond the training that

your other employees receive; is that correct?

A. Not necessari ly. We have some ... people that have been through fire training classes,

also, and all Chevron employees go through fire training classes.

Q. Am I correct that fire watchers receive training different or above and beyond those that

just are general laborers with your company?

A. Eventually everyone is going to be going through the fire training classes.

Applying the Berry test, we and the Louisiana state appe als courts have held that welders,

pipefitters, electricians, painters, and sandblasters are not specialized employees if (1) the contract

work they perform consists primarily of manual labor or (2) the principal's own employees are capable

of performing the same work. 5 Because the record est ablishes that (1) no particular education or

expertise is required to perform firewatch work, (2) firewatch work does not require a degree of skill,

training, education or equipment not nor mally possessed outside the contract field, and (3) a

comparison between Merit's firewatchers and Chevron's maintenance workers reveals that Chevron's6 In fact, the affidavit of Paul Harrison, a maintenance superintendent employed by Chevron,

states that Chevron employees perform firewatch duties as part of their routine maintenance

operations. employees possess similar or greater skill, training, experience, education an d equipment for

performing firewatch work, 6 we find that the Brocks have failed to establish that a genuine issue of

material fact exists as to whether firewatch work is specialized.

2

Because firewatching is non-specialized work, we must consider the Brocks' assertion that

firewatch work is not part of the trade, business, and occupation of Chevron. We find that, although

Chevron may contract for firewatch work, firewatch work is part of Chevron's trade, business, and

occupation.

It is undisputed that Chevron supplied all the equipment used by Delays and the other

firewatchers. In Mozeke, 856 F.2d at 726, we found that contract work was part of the principal's

business where the principal "provided the equipment necessary for [the contractor] to perform its

maintenance and repair work at the ... plant, and that [the principal's] personnel at other Louisiana

plants were capable of performing the same work..." Moreover, the record establishes that firewatch

work is regular, predictable, and necessary for the safe operati on of the Chevron plant, see Garrene

v. BASF Wyandotte Corp., 532 So.2d 510, 512 (La.App. 1st Cir.1988) (plaintiff's maintenance

ac t ivit y is part of the routine and customary day-to-day operation of the plant), and that nearby

chemical pl a nts—namely British Petroleum and Murphy Oil Company—train their own people to

perform firewatch work and do not contract for supplemental firewatch labor. Accordingly, we find

that the Brocks have failed to successfully rebut the evidence presented by Chevron establishing that

the firewatch work performed by Delays is within the sco pe of Chevron's trade, business, and

occupation.

3

Having found that the firewatch work performed by Delays at the time of his injury was (1)

non-specialized and (2) within the scope of Chevron's trade, business, and occupation, we reach the

Brocks' final contention—that Chevron employees were not performing firewatch work at the time7 The Brocks also argue that, at the time of Delays' accident, Delays was performing firewatch

work for Kostmeyer—a welding contractor hired by Chevron—rather than directly for Chevron.

The Brocks have not explicitly briefed why they raise this issue and how it weighs upon their

claims. In response, we simply note that the record establishes that Chevron chose to hire many

of its workers through contractual relationships and, inevitably, these Chevron workers did work

together. For example, because Chevron coordinated and assigned work to a number of

contractors, Merit often—at Chevron's direction—provided firewatch services to other

contractors who also worked under Chevron's direction. of Delays' accident.

The third prong of the Berry test does not require that a principal's employees perform exactly

the same work as the contract em pl oy ees, s ee Mozeke, 856 F.2d at 727, 727 n. 3 (principal's

employees need not be performing con t ract work on same premises as contractor's employees;

similar work at other facilit ies may be sufficient), nor t hat t he principal's employees be working

side-by-side with the contract e mployees. See id.; Seeney, 848 F.2d at 668 (a showing that

p r incipal's employees were performing similar work somewhere on the premises at the time of the

accident is sufficient).

The record firmly establishes that, at the time of Delays' accident, all Chevron maintenance

workers were trained in fire prevention and fire-fighting; these skills were part of their job duties.

Moreover, according to Chevron's maintenance superintendent ( see supra note 6), Chevron

employees routinely perform firewatch duties as part of their maintenance operations. To establish

that Chevron was not engaged in any firewatch-rela t ed work at t he time of Delay s accident, the

Broc k s rely entirely upon Lalonde's testimony that he "cannot remember" firewatch work being

performed by Chevron employees. We conclude that this is not enough to rebut Chevro n's Berry

showing that it was performing firewatch work—work that Chevron has established (1) its employees

are trained to perform, (2) includes general fire prevention efforts, and (3) is essentially maintenance

in nature ( see supra Part III.B.1)—at the time of Delays' accident. 7

C

In sum, we have determined that Chevron has successfully established that, under the Berry

test formulated by the Louisiana Supreme Court, Delays Brock was its statutory employee at the time

of his accident. As recognized by the district court, this determination is supported by the fact that,at the time he was initially employed by Merit, Delays signed an acknowledgment stating,

I understand that although I am the general employee of the contractor noted below, I will

also have a special employee relat io nship with Chevron Chemical Company during the

performance of work at a Chevron Chemical Company Plant. I accept the special employee

relationship and I understand that as a result of this relationship the responsibility, if any, of

Chevron Chemical Company for injuries or death shall be limit ed, similar to that of my general

employer, to benefits available under applicable worker's compensation law....

I agree to abide by the safety rules applicable to plant employees and to foll ow the

directions of representatives of Chevron Chemical Company in performance of work.

The Brocks have failed to successfully rebut Chevron's showing by "com[ing] forward with

evidence establishing each of the challenged elements of its case for which [the Brocks would] bear

the burden of proof at trial." T opalian, 954 F.2d at 1131, citing Catrett, 477 U.S. at 322, 106 S.Ct.

at 2552. Accordingly, having reviewed the record as a who le, we find that, pursuant to

L A .R EV .S TAT .A NN

. § 23:1061 (West 1985) (pre–1990 amendment version), Delays was Chevron's

statutory employee at the time of his accident. We therefore conclude that, pursuant to Rule 56(c)

of the Federal Rules of Civil Procedure, Chevron is, as a matter of law, entitled to summary judgment

on the issue of tort liability arising from Delays' accident.

IV

For the foregoing reasons, we AFFIRM the district court's grant of summa ry judgment in

favor of Chevron.