# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 30940

**Brandon Morris,**

Plaintiff

— Appellant **,**

versus

**Graphic Packaging International, L.L.C.,**

Defendant

— Appellee

**.**

Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:19

- CV

- 266

Before **Higginbotham, Jones,**  and **Higginson,** Circuit Judges

**. Per Curiam**  **:** *
While working for Graphic Packaging International (“GPI”),
Brandon Morris was injured on the job site and later sued GPI in tort. GPI
contends that , since Morris is a statutory employee, workers’ compensation provides Morris’s only remedy. The district c ourt granted summary

* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 12, 2020

Lyle W. Cayce Clerk Case: 19-30940 Document: 00515598131 Page: 1 Date Filed: 10/12/2020No. 19

- 30940

2 judgment for GPI and denied Morris’s Motion for Partial Summary Judgment. Morris appeals and we affirm.
This court reviews the district court’s grant of summary judgment de

novo , applying the same standards as the district court. De P

ree v. Saunders , 588 F. 3d 282, 286 (5th Cir. 2009). Summary judgment is appropriate if no genuine dispute of material fact exists, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56( a ).
In January 2018, GPI, a paper manu facturer, and Morris’s employer,

ML Smith, Jr. , L

. L

. C. (“ ML Smith”) entered into a written contract (“ Purchase Order ”)

. The Purchase Order contained a document outlining
terms and conditions. The terms and conditions form stated the requirement
that ML S mith carry workers ’ compensation insurance and that GPI would
be th e statutory employer of ML Smith’s employees. Id.
A month later, Morris was assembling a new black liquor reclaim tank when he stepped in brown or black fluid on the ground

. Morris sustai ned
chemical burns on both his feet and has received benefits from Zurich American Insurance Company (“Zurich”) , the insurer that i ssued ML
Smith ’s workers’ compensation policy.
A little less than a year after his injuries, Morris filed suit against GPI in the Fourth Judicial District Court, Ouachita Parish, Louisiana

. GPI removed the case to federal court under diversity jurisdiction

. The district court granted summary judgment for GPI and denied Morris’s Motion for Partial Summary Judgment. Morris timely appealed. Zurich was an
intervenor at the district court level , but has not appealed the ruling to this

court

. Under Louisiana law, worker s ’ compensation is the exclusive rem edy in situations such as this one if the employee is a stat uto ry employee

. LA. Case: 19-30940 Document: 00515598131 Page: 2 Date Filed: 10/12/2020No. 19

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3 STAT. ANN. § 23:1061 (2019). The terms of statutory employment are set out by Louisiana Revised Statutes § 23:1061 (A)(3) : [A] statutory employer relationship shall not exist between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee' s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between th e principal and the contractor's employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal 's goods, products, or services.

**La. Stat. Ann.** § 23:1061 (2019)

. In short, a worke r is a statutory employee of the principal (here, GPI)
if the employment relationship is formed with a written contrac t , and the employee is hired to perform services that are an integral part of the employer’s business.

In this appeal, Morris contends th at an unsigned writing

– here, a
Purchase Order with attached terms and conditions

– cannot qualify as a written contract as requi red under Louisiana law for statutory employee s

. Morris also contends that the construction of a reclaim tank is not an integral part of GPI’s business, even though the use of the reclaim tank is an integral part of GPI’s business. We reject both claims.

I. The Purchase Order satisfies the written contract requirement.
“Except for intentional acts, workers ’ compensation is the exclusive remedy for work

- related injuries and illnesses.” Dugan v. Waste Mgmt., Inc. , Case: 19-30940 Document: 00515598131 Page: 3 Date Filed: 10/12/2020No. 19

- 30940

4 45

- 407

- CA (La. App. 2 Cir. 6/23/10); 41 So.3d 1263, 1266 ( citing **La. Stat.**
**Ann.** § 23:1032 )

. T his statute applies if the worker is a statutory employee of a principal

. 1 **La. Stat. Ann.** § 23:1061 . Under this statute, a statutory employment relationship exists when a principal hires a contractor, in conformance with § 23:1061, to perform services that are a part of the principal's business and a written contract exists between the principal and contractor that recognizes the principal as a statutory employer

. **La. Stat.**
**Ann.** § 23:1061

.
T he Purchase Order is a “written contract” as required by Louisiana
Revised Statutes 23:1061(A)(3) because it contains a clear written expression that GPI was Morris’s statutory employer

. The Purchase Order states , in relevant part, “SECTION 13: STATUTORY EMPLOYMENT: If services are to be performed at [GPI's] facilities in the state of Louisiana, it is agreed that pursuant to the provisions of Louisiana Revised Statutes 23:1061(A)(3), that it is the intent and agreement of the parties hereto that the relat ionship
of

... [GPI] to the direct employees and the statutory employees of [M L Smith] (contractor) be that of a statutory employer. ” This court has before recognized that this identical language was sufficient to recognize a statutory employment relationship

. Nielsen v. Graphic Packaging Int'l, Inc. , Civil
Action No. 09

- 1757, 2011 WL 2462496 (W.D. La. June 17, 2011) aff'd , 469 F. App'x 305 (5th Cir. 2012)

. 2

1 A principal is defined as “ any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof .” **La. Stat. Ann.** § 23:10 32.

2 Although Nielsen is an unpublished o pinion and is not therefore binding on this court, it is useful evidence of this court’s treatment of this issue because of the factual similarity. Case: 19-30940 Document: 00515598131 Page: 4 Date Filed: 10/12/2020No. 19

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5 While Morris contends that the contract is invalid because it was

un signed , th e plain text of the Louisiana statute in question does not require a signed writing, it just requires a “ written contract. ” **La. Stat. Ann.** § 23:1061 (A)(3)

. Under Louisiana l aw, the o ffer and acceptance may be oral, and acceptance can be through performance, as it was here. **La. Civ.**
**Code Ann.** a rt. 1927 (“Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by
action or inaction that under th e circumstances is clearly indicative of consent.”). Further, the validity of the written contract was not at issue because, per the opening paragraph of the Purchase Order , performance constitutes acceptance

. (“Acknowledgement, shipment or performance o f any part of this Purchase Order will constitute acceptance by Seller of all Terms and Conditions hereof, including all documents incorporated herein by reference”).
Therefore, w hile the Purchase Order was unsigned, it was a written

contract that was acce pted through performance and is a binding contract.

II. Morris ’s work in the construction of the reclaim tanks is an integral and essential part of GPI’s business. Once a principal has shown that a written contract has provided for a statutory employment relationship, there is a rebuttable presumption of statutory employment that can be overcome only by showing that the work is

not an “ integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.” **La. Stat. Ann.**  § 23:1061 (A)(3) ; see also Everitt v. Rubicon, Incorporated , 2004

- 1988 (La. App.
1 C ir. 6/14/06) ; 938 So.2d 1032 (“[T]he legislature has now shifted the burden of proof to the employee to rebut the presumption of a statutory employer relationship where a written contract recognizes such a relationship, and the statute specifies the burden the employee must meet in order to rebut the presumption.”). Morris contends that he can meet his Case: 19-30940 Document: 00515598131 Page: 5 Date Filed: 10/12/2020No. 19

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6 burden to show that the work he was performing was not an integral part of
or essential to the ability of GPI to generate its goods, products, and services.
**La. Stat. Ann.** § 23:10 61 (A)(3) ; Jackson v. St. Paul Ins. Co. , 2004

- 0026, (La.App. 1 Cir. 12/17/04); 897 So.2d 684, 688, writ denied , 2005

- 0156 (La.3/24/05), 896 So.2d1042

. According to an affidavit sworn by a GPI manufacturing manager,
b lack liquor reclaim tanks, such as the one Morris was working on, are an “integral part of and essential to GPI’s ability to produce its paperboard products from both a continuous process perspective, as well as from an
economic and environmental perspective.” Morri s responds that , while the

use of the tanks is an integral part of GPI’s business, the construction of those
tanks is not an integral part of GPI’s business

. Not so

. Louisiana a ppellate courts have recognized that the statutory employer test is liberal a nd expansive, and for example held that the construction of a new fractionation plant was an essential part of a chemical company’s business. See Jackson v.
St. Paul Ins. Co. , 2004

- 0026, (La.App. 1 Cir. 12/17/04) ; 897 So.2d 684, 688

- 89 , writ denied , 2005

- 0156 (La.3/24/05), 896 So.2d 1042 (“ [T] he legislature has specifically rejected a restrictive analysis in favor of a more liberal interpretation of the words ‘ integral ’ and ‘ essential

. ’”) ; Applegarth v. Transamerican Ref. Corp. , 00

- 1547 (La. App. 5 Ci r. 2/28/01), 781 So. 2d 804,
807, writ denied , 2001

- 0834 (La. 5/11/01), 792 So. 2d 738 (After “[c]onsidering the history of the legislative responses to the restriction of statutory employee status by the courts, we conclude that [the legislature]
intended the section to apply to new construction” in at least some circumstances, and therefore constructing “a retaining wall around the oil tanks and laying cement forms for the installation of pipe racks is essential to the ability of the refinery to generate its goods, products, or services.”)

Since it is undisputed that the use of black liquor tanks is an integral
and essential part of GPI’s business, and Louisiana courts have classified the Case: 19-30940 Document: 00515598131 Page: 6 Date Filed: 10/12/2020No. 19

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7 new construction of an integral part of a company’s business as itself an integral part of the company’s business, we agree with the district court’s
conclusion that the construction of black liquor reclaim tanks is an integral part of GPI’s business

. See **La. Stat. Ann.** § 23:1 061 (A)(3). Morris has not met his burden to rebut the written contract establishing a statutory employer relationship, and consequently, GPI was Morris’s statutory employer.

III. Conclusion

As Morris’s statutory employer , GPI is immune from Morris’s tort claims and his exclusive remedy is workers ’ compensation

. Accordingly, the judgment of the district court is AFFIRMED

. Case: 19-30940 Document: 00515598131 Page: 7 Date Filed: 10/12/2020