STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

NO. 2022 CA 0972

STONETRUST COMMERCIAL INSURANCE COMPANY VERSUS TBT CONTRACTING, INC. OF LOUISIANA, ET AL. Judgment Rendered: Appealed from the 17" Judicial District Court In and for the Parish of Lafourche

State of Louisiana Docket No. C- 140821 

### JUN 2 0 2423

The Honorable Marla M.Abel,Judge Presiding Jeremy D. Carter Phillip E. Foco Colin P. O' Rourke Baton Rouge, LA Davis R. Peltier Michelle Deloach Brooks Michael G. Gee 

### Mallory F. Maddocks Kaitlyn E. Bourg Thibodaux, LA Travis L. Bourgeois 

### Sidney W. Degan III Jena W. Smith New Orleans, LA Counsel for Plaintiff/ Appellant, Stonetrust Commercial Insurance 

### Company

Counsel for Defendants/Appellees, Joshua Luft and Melissa Luft

Counsel for Defendant/Appellee, 

### TBT Contracting, Inc. ofLA

BEFORE: GUIDRY, C.J., HOLDRIDGE, LANIER, WOLFE, AND MILLER,JJ.

AJ r' 

### 4 s6U s. 

### tl` 

# AMIAMI Wdt a r xfcSSc h crc ` cMILLER,J. An electrical subcontractor' s workers' compensation carrier, Stonetrust 

### Commercial Insurance Company, appeals a summaryjudgment dismissing its tort claims against the contractor, TBT Contracting, Inc. ofLA,with prejudice, based 

### on a finding that the contractor was the statutory employer ofthe subcontractor's injured employee. For the reasons that follow,we reverse. FACTS AND PROCEDURAL HISTORY In connection with a home renovation project, Joshua and Melissa Luft 

### entered into an agreement with TBT Contracting, Inc. ofLA ("TBT"), on March 13, 2019, to " provide all material, equipment, labor and supervision to construct the additions and renovations" to their residence. TBT then subcontracted Naquin Electrical, Inc. (" Naquin") to "[

### p]rovide labor,material, equipment and supervision for all electrical work" forthe Luft residence additions and renovations. 

### On June 11, 2019, Gary Andras, an employee ofNaquin,was injured when he fell through a hole cut for an attic access door to the floor below. As a result of the accident, Naquin' s workers' compensation carrier, Stonetrust Commercial 

### Insurance Company (" Stonetrust"), 

### paid medical and indemnity benefits to Mr. Andras. 

### Stonetrust subsequently filed a petition for damages in subrogation against TBT, the Lufts, and F& G Construction, LLC, 

### seeking reimbursement for all amounts paid to, or on behalf of, Mr. Andras, damages, penalties, legal interest, 

### attorney's fees, and costs.' TBT answered and asserted various affirmative 

### defenses, includingthe affirmative defense ofstatutory employer immunity. On July 16, 2021, TBT filed a motion for summary judgment contending that Stonetrust' s claims against TBT wholly arise from the work-related accident 

### and are thus governed exclusively by the provisions of the Louisiana Workers' In a first amending and supplemental petition, Stonetrust named F& G Construction, LLC, who was also performing work atthe site, as a defendant. 2Compensation Act. 

### TBT submits that, at all relevant times, it was the statutory

employer of Mr. Andras pursuant to La. R.S. 23: 1061 and is thus immune from 

### liability in the instant suit, such that Stonetrust' s claims against it should be dismissed with prejudice. 

### With reference to the claims asserted by Stonetrust, 

### TBT contends that Stonetrust, stepping into Mr. Andras's shoes as subrogee, has no greater rights to recoverythan those ofMr.Andras. In support of its motion for 

### summary judgment, TBT submitted the affidavit of its President, T. Benton 

### Thompson, attaching the March 13, 201.9 agreement with the Lufts,the subcontract agreement with Naquin, and correspondence and invoices; and the Lufts' answers to interrogatories and requests for production ofdocuments. Stonetrust opposed the motion, 

### contending that TBT failed to set forth 

### competent summary judgment evidence establishing the contracts herein, the obligations it contracted to perform, the obligations it subcontracted to third parties, 

### and what its alleged statutory employee was doing at the time of the

accident. In support of its opposition, Stonetrust presented the deposition ofTBT Superintendent Brian Larousse with attached invoices; the deposition of Joshua Luft; the deposition of Melissa Luft; and the affidavit of Joshua and Melissa Luft with the attached agreement between TBT and the Lufts. 

### Following a hearing, the trial court granted TBT's motion for summary judgment.' 

### On March 11, 2022, the trial court signed ajudgment granting TBUs motion for summaryjudgment and dismissing Stonetrust's claims against it with prejudice. 

### Stonetrust now appeals, contending that the trial court erred in finding that TBT was entitled to immunity under La. R.S. 23: 1061 where the summary judgment evidence was insufficient and " 

### without making a specific factual 2The trial court also heard and granted a motion for summaryjudgment in favor ofthe Lufts, dismissing Stonetrust' s claims against them with prejudice. This court affirmed that judgment on appeal. See Stonetrust Commercial Insurance Company v. TBT Contracting, Inc. ofLA,2022-0971 ( La.App. 1st Cir. 4/ 14/23), — So. 3d _ ( 2023 WL 2947826). 3

## determination that Mr.Andras was injured while performing work in furtherance

ofthetwo -

contract relationship." DISCUSSION



### SummaryJudgment 

### A motion forsummaryjudgment is aprocedural device used to avoid a fullscale trial when there is no genuine issue of material fact. M/V Resources LLC v. 

### Louisiana Hardwood Products LLC,2016-0758 (La. App. Pt Cir. 7126117), 225 So. 3d 1104, 1109, writ denied, 2017- 1748 ( La. 12/5117), 231 So. 3d 624. After an 

### opportunity for adequate discovery, a motion for summary judgment shall be granted ifthe motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled tojudgment as a matter of law. La. C.C.P. art. 966(A)(3). 

### The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions. La. C.C.P. art. 966(A)(4). 

### The court may consider 

### only those documents filed in support of or in opposition to the motion for 

### summary judgment and shall consider any documents to which no objection is made. La. C.C. P. art. 966(D)(2). 

### On a motion for summaryjudgment, the initial burden of proof is on the

mover. La. C.C.P. art. 966(D)(1). 

### The mover's supporting documentary evidence 

### must prove the essential facts necessary to carry his burden. Hooper v. Lopez, 2021- 1442 ( 

### La. App. Is' Cir. 6122122), 344 So. 3d 656, 660, as clarified on reh' 911122), 

### writ denied, 2022-01421 ( La. 11122122), 350 So. 3d 501. If the mover 

### fails to carrythis burden, summaryjudgment must be denied in favor ofa trial on the merits. Crockerham v. Louisiana Medical Mutual Insurance Co., 2017- 1590 

### La. App. 1St Cir. 6/21/ 18), 255 So. 3d 604, 608. 

### It is only when the moving party has established both that there is no genuine issue of material fact and that he is l

### entitled tojudgment as a matteroflaw,that it is incumbent upon the adverse party

to establish that there is a genuine issue for trial. Neighbors Federal Credit Union 

### v.Anderson, 2015- 1020 (La.App. V Cir.613116), 196 So. 3d 727, 734-735. 

### When a motion is made and properly supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, 

### by 

### affidavits or as otherwise provided by law, must set forth specific facts showing there is a genuine issue for trial. La. C.G.P. art. 967(B). The burden is then on the 

### adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C. C.P. art. 966(D)( 1). 

### If he does not so respond, summary judgment, ifappropriate, shall be rendcred against him. La.C.C.P. art. 967(B).

To summarize, 

### on a motion for summary judgment, it must first be 

### determined that the supporting documents presented by the moving party are sufficient to resolve all material issues of fact. 

### If they are not sufficient, the 

### summaryjudgment should be denied. 

### Only ifthey are sufficient does the burden shift to the opposing party to present evidence showing that a material fact is still 

### at issue; only at this point may one no longer rest on the allegations contained in his pleadings. Neighbors Federal Credit Union, 196 So. 3d at 734. 

### In determining whether summaryjudgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's 

### determination of whether summary judgment is appropriate. 3 MN Resources

We note that appellate courts reviewjudgments and not reasons forjudgment. Waltony. State Farm Mutual Automobile Insurance Co., 2018- 1510 (La.App. I" Cir. 5131119), 277 So. 3d 1193, 1199. In fact, judgments are often upheld on appeal for reasons different than those assigned by atrial court. Wooley v. Lucksinger, 2009-0571, 2009-0584, 2009-0545, 2009-0586 La. 4/1/ 11), 61 So. 3d 507, 572. Reasons forjudgment are merely an explication of the trial court's determinations and do not alter, amend, or affect the final judgment being appealed. Davis v Allstate Property & Casualty Insurance Co., 2019-0285 ( La. App. I" Cir. 11115119) unpublished) 2019 WL 6044635, * 2, citing Walton, 277 So. 3d at 1199. Additionally, because this court reviews summary judgments de novo, we afford no 

### deference to the trial court's underlying reasoning for itsjudgment. John River Cartage, Inc. v. Louisiana Generating, LLC, 2020-0162 ( La. App. 1St Cir, 314120), 300 So. 3d 437, 453 n. 12, titin 

### King v. Allen Court Apartments II, 2015-0858 (La. App. 0 Cir. 12123115), 185 So. 3d 5LLC, 225 So. 3d at 1109. Because it is the applicable substantive law that



### determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. 

### Gentry v. Spillers, 2020- 1077 ( 

### La. App, Pt Cir. 5/ 10/21), 325 So. 3d 398, 402, writ denied, 2021- 00509 (La. 10/5121), 325 So. 3d 373. 

### Statutory Employer Under the Louisiana Workers' Compensation Act, an employer is liable for compensation benefits to an employee who is injured as a result of an accident 

### arising out of and in the course of his employment. La. R.S. 23: 1031. An employee injured in an accident while in the course and scope ofhis employment 

### is generally limited to the recovery of workers' compensation benefits as his exclusive remedy against his employer and,thus, may not sue his employer in tort. Mitchell v. 

### Southern Scrag Recycling, L.L.C., 2011- 2201 ( La. 

### App. 1St Cir. 6/8/ 12), 93 So. 3d 754, 757, writ denied, 2012- 1502 ( La. 10112/ 12), 99 So. 3d 47. 

### Louisiana adopted abroadversion ofthe statutory employerdoctrine;thus,the Act expressly extends the employer's compensation obligation and its corresponding 

### tort immunity to a " principal," which is also referred to as a " statutory employer." 

### See Allen v. State _

ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002- 1072 (La. 4/9/03), 842 So. 2d 373, 378. 

### Statutory employer immunity is governed by La. R.S. 23: 1061( A), which 

### provides that the principal, as a statutory employer, shall be granted the exclusive 

### remedy protections of La. R.S. 

### 23: 1032 and shall be liable to pay workers' compensation benefits to any employee employed in the execution ofthe work or to his dependent. 

### A statutory employer relationship shall exist, in two instances:

835, 839, writ denied, 2016-0148 ( La. 3114116), 189 So. 3d 1069. Thus, we will review the summaryjudgment de novo to determine whether there is any genuine issue ofmaterial fact, and whether the movant is entitled tojudgment as a matter of law. See La. C.C.P. art. 966(A)(3); Louisiana Property Development, LLC v. U - S. National Title Insurance Company, 2022-0163 La.App. I" Cir.9116122), 353 So. 3d 153, 158.311) 

### when a party undertakes to carry out any work that is a part of its trade,

business, or occupation by means of a contract with another party; or (2) when a 

### party contracts to perform work and sub -lets any portion of the work to another party (the "two -

contract" theory). See La. R.S. 23: 1032(A)(1) and (2) and La. R.S. 23: 1061(A)(1) and (2); Allen, 842 So. 2d at 378. 

### In the instant case, TBT contends that it is entitled to statutory immunity under the two -

contract theory, which is set forth in La. R.S. 23: 1061( A)(2), as follows: 

### A statutory employer relationship shall exist whenever the services or 

### work provided by the immediate employer is contemplated by or 

### included in a contract between the principal and any person or entity otherthan the employee' s immediate employer. 

### The two -

contract theory applies when: ( 1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part ofthe work performed. Allen, 842 So. 2d at 379. 

### The two - contract statutory employer status contemplates 

### relationships among at leastthree entities: a general contractor who has been hired 

### by a third party to perform a specific task; a subcontractor hired by that general contractor; and an employee ofthe subcontractor. 

### Badeaux v. St. Tammany Parish Hospital Service District No. 

### 1, 2021- 1229 ( La. App. 1st Cir. 6/3/ 22), 343 So. 3d 230, 236, writ denied, 2022-01169 ( La. 11/ 1/ 22), 349 So. 3d 1. The purpose 

### behind the two -

contract theory isto establish a compensation obligation on the part 

### ofthe principal who contractually obligates itselfto a party for the performance of work and who then subcontracts with intermediaries whose employees perform any part ofthat work. Fee v. Southern Packaging, Inc., 

### 2018- 1364 ( La. App. 1St Cir. 5/24/ 19), 277 So. 3d 787, 798.

7

### An employer seeking to avail itself of tort immunity bears the burden of

proving its entitlement to immunity. Patterson _ v. Raceland Equipment Company, LLC, 2017-0703 ( La.App. 1St Cir. 4/ 18/ 18), _ So. 3d _, _, 2018 WL 1870156, 3, writ denied, 2018- 1018 ( La. 1018118), 253 So. 3d 799. 

### Furthermore, immunity 

### statutes must be strictly construed against the party claiming the immunity. Labranche v. Fatty' s, LLC, 2010-0475 ( La. 

### App, I" Cir. 10129110), 48 So. 3d 12701 1272. 

### The ultimate determination of whether a principal is a statutory 

### employer entitled to immunity is a question of law for the court to decide. Patterson, So. 3d at , 2018 WL 1870156 at * 3. 

### In the instant case, TBT,as the moveron the motion forsummaryjudgment, 

### bearsthe burden ofproving tort immunity and showingthere is no genuine issue of material fact as to the defense that it is the statutory employer ofMr.Andras. See La. C.C.P. art. 966(D)(1); Horrell v. Alltmont, 2019-0945 ( La. 

### App. 1 St Cir. 7/31/ 20), 309 So. 3d 754, 759. 

### Accordingly, if the supporting documents 

### presented by TBT are sufficient to resolve all material issues of fact, only then would the burden shift to Stonetrust to present evidence showing that a material fact is still at issue. See La. C.C.P. art. 966(D)(1). 

### In support ofits motion forsummaryjudgment, TBT offered the affidavit of its President, Mr.Thompson,who attestedthatTBT was hired bythe Lufts to serve as a general contractor for the complete renovation oftheir residence pursuant to a 

### contract that he prepared and submitted to the Lufts on February 21, 2019, which was approved and signed by Mr. Luft on March 13, 2019. Mr. Thompson further attested that TBT, in turn, entered into a subcontract with Naquin to provide labor,

material, equipment, and supervision for all electrical work, and that Naquin 

### invoiced TBT directly for all work performed at the Luft residence. The contract,

subcontract, and invoices were attached to Mr. Thompson' s affidavit. TBT contends that its contract with the Lufts and its subcontract with Naquin, inconnection with Mr. Thompson' s affidavit, 

### establish that it was the statutory

employer of Mr. 

### Andras under the two - contract theory and is thus statutorily immune from tort liability. Stonetrust contends on appeal that TBT failed to meet its initial burden of 

### proving that Mr.Andras was injured while performing work in furtherance ofthe two - contract relationship. 

### In response, TBT maintains that Stonetrust judicially confessed in its petition that Mr. Andras was injured while " performing electrical 

### wiring work in the attic ofthe home located at 704 Menard Street ... as part of a remodeling project," in the course and scope of his employment with Naquin. TBT thus contends that Stonetrust' s judicial confession waives the requirement 

### that TBT produce evidence establishing the same on summaryjudgment. On review, however, while the assertions set forth in Stonetrust' s petition 

### may amount to ajudicial confession that Mr.Andras was injured while performing 

### work in furtherance ofthe alleged two - contract relationship, TBT failed to attach 

### Stonetrust's petition as evidence in support of its motion for summary judgment and the balance of mover's supporting documents do not establish this material fact. 

### Again, a party seeking summary judgment may not reference documents located elsewhere in the record when those documents were not specifically filed 

### in support of, or in opposition to, the motion for summary judgment. See La. G.C.P. art. 966(D)(2); 

### Huggins v. Amtrust Insurance Company_of _ Kansas Inc., 2020-0516 (La. App. 1St Cir, 12130120), 319 So. 3d 362, 366-367; Forstall v. City 

### ofNewOrleans, 2017-0414 (La.App.4" h Cir. 1/ 17/ 18), 238 So. 3d 465, 471- 472. 

### In orderto prevail on its motion forsummaryjudgment,TBT hadthe burden ofestablishing that Mr.Andras was injured while performing work in furtherance 

### ofthe two -

contract relationship, and failed to do so. Thus, because TBT failed to 

### meet its initial burden ofestablishingthere isno genuine issue ofmaterial factasto its defense that it is the statutory employer of Mr.Andras and that it is therefore C

### entitled tojudgment as a matter of law, we find the trial court erred in granting

summaryjudgment in its favor.' CONCLUSION 

### For the above and foregoing reasons, the March 11, 2022 judgment ofthe 

### trial court granting TBT's motion forsummaryjudgmentand dismissing Stonetrust Commercial Insurance Company's claims is reversed. All costs ofthis appeal are 

### assessed to the defendant/appellee, TBT Contracting, Inc. ofLA.

REVERSED.



### Finding merit to this assignment of error, we pretermit discussion of Stonetrust's remaining assignments oferror. 10STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2022 CA 0972 STONETRUST COMMERCIAL INSURANCE COMPANY VERSUS TBT CONTRACTING, INC. OF LOUISIANA, ET AL.



### Holdridge,J.dissents forthe reasons assigned byJudge Wolfe. I writefurthertostatethatthedocumentsproducedbyTBTestablishthatthere were no genuine issues of fact that the Lufts contracted with TBT, as the general contractor, to renovate their residence. TBT contracted with Naquin to do the electrical workneeded to be performed forthe renovations. An employee ofNaquin, 

### Mr.Andrus,was working in the attic ofthe Lufts' residence when he was injured. 

### These undisputed facts clearly show that TBT was the statutory employer ofMr. Andrus. See La. 23: 1061( A)(1)( 2); Allen v. State ex rel. Ernest N. Morial-New 

### Orleans Exhibition Hall Authority, 2002- 1072 (La. 4/9/03), 842 So.2d 373, 383. The burden then shifted to the Stonetrust to come forth with evidence that Mr. 

### Andrus was not doing the work ofNaquin atthe time he was injured. In order for 

### the trier of fact to find that Mr. Andrus was not a statutory employee of TBT, Stonetrust had to produce factual supportto establish the existence ofa genuine issue 

### offact that Mr. Andrus was doing work at the time he was injured that was not covered under the contracts ofTBT and Naquin. See La. C.C.P. art. 966(D)( 1).

### STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2022 CA 0972 

### STONETRUST COMMERCIAL INSURANCE COMPANY VERSUS 

### TBT CONTRACTING, INC. OF LOUISIANA, ET AL. WOLFE, J., DISSENTS AND ASSIGNS ADDITIONAL REASONS. 

### I respectfully dissent from the majority opinion, in that I disagree that TBT's 

### evidencewas insufficienttomeet its initial burden ofestablishingthere isnogenuine issue ofmaterial fact as to its tort immunity defense as statutory employer ofthe injured worker. 

### Further, I do not find that Stonetrust's petition is necessary to the analysis, because TBT offered uncontradicted evidence to prove it had a contract with the Lufts for a complete renovation and, pursuant to that contract, TBT entered into a subcontract with Naquin for electrical work. The two - contract scenario is 

### evidenced by the affidavit of TBT president, Thompson, with the supporting

attachments. 

### See Duncan v. Balcor Property Management, Inc., 615 So.2d 985, 

### 989 (La. App. 1st Cir.), writ denied, 617 So.2d 936 ( La. 1993). No objection was 

### made concerning Thompson' s affidavit and attachments. The court shall consider 

### any documents towhich no objection is made. See La. Code Civ. P. art. 966(D)(2). Thus, 

### the uncontradicted evidence demonstrated that TBT was the statutory employer ofthe injured Naquin employee, which leads to the conclusion that TBT 

### is immune from tort liability underthe Louisiana Workers' Compensation Act. For these reasons, I would affirm the trial courtjudgment.