* Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-30418

Summary Calendar

 

FELTON DOMINIQUE, SR.; SUCELIA DOMINIQUE,

Plaintiffs-Appellees-Cross-Appellants,

versus

GEORGIA GULF CORPORATION,

Defendant-Appellant-Cross-Appellee.

 

Appeal from the United States District Court

For the Middle District of Louisiana

(4:95-CR-33-2)

 

November 7, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM:*

Georgia Gulf Corporation appeals a jury verdict awarding

tort damages to Felton Dominique, Sr., and his wife, Sucelia

Dominique. We hold that the trial court did not err in applying

Louisiana's "statutory employee" rule, that there was sufficient

evidence to sustain the jury's findings, and that the jury did not

abuse its discretion in arriving at the amount of general damages.
2

I.

Mr. Dominique works for the company of Payne & Keller as a

pipe-fitter. Pursuant to a maintenance contract between Georgia

Gulf and Payne & Keller, a Payne & Keller foreman instructed Mr.

Dominique to blind off a valve on a large storage tank that

contained sodium chlorate. The concrete base of the tank formed a

dike in which more than a foot of rain water containing sodium

dichromate had collected. In order to avoid the yellow-green

water, Mr. Dominique had to walk on the lip of the dike. He

accidentally struck his leg on a pipe that protruded from the tank,

lost his balance momentarily, and twisted his back in an effort to

avoid falling into the water. He endured back pain during another

week of work, but when the pain became more severe he sought

medical treatment. The doctor discovered that Mr. Dominique had a

ruptured disk and performed a lumbar hemilaminotomy.

The court conducted a two-and-a-half-day jury trial on Mr.

Dominique's personal injury suit. By way of special

interrogatories, the jury assigned 40% of fault to Georgia Gulf and

60% to Mr. Dominique. It awarded Mr. Dominique $112,336 in

compensatory damages, which included $15,000 in general damages for

physical pain, mental anguish, and loss of enjoyment of life. The

judge reduced these damages to $44,934 in keeping with Louisiana's

comparative negligence scheme. The jury also awarded $3,000 to

Sucelia Dominique for loss of consortium, which the judge reduced
3

to $1,200. The jury answered "no" to the question of whether there

was "a contract between Payne & Keller and Georgia-Gulf to do work

which was part of the trade, business, or occupation of GeorgiaGulf."

Georgia Gulf presents two questions for this court's review.

First, it contends that under Louisiana law Mr. Dominique was a

statutory employee and thus that the Louisiana workers'

compensation system was his exclusive means of obtaining a remedy.

Second, it claims that the evidence was insufficient to support the

jury's verdict that Georgia Gulf’s negligence caused Mr.

Dominique’s injury. Mr. Dominique has filed a cross-appeal to

contest the adequacy of the jury's general damages award. We take

up these three matters in turn.

II.

A.

Louisiana statutory law restricts the tort remedies that an

employee of an independent contractor can assert against a party

who engages the services of the independent contractor. When a

principal entity such as Georgia Gulf pays a contractor "to execute

any work, which is a part of [its] trade, business, or occupation,"

the contractor's employees are "statutory employees" of the

principal and must rely on the workers' compensation system to

obtain compensation for any injuries suffered while performing work

for the principal. La. Rev. Stat. Ann. § 23:1061(A) (West Supp.

1996).
4

In recent years, the details of Louisiana's statutoryemployment test have been subject to doubt. In Thibodaux v. Sun

Oil Co., 49 So. 2d 852, 854 (La. 1950), the Louisiana Supreme Court

adopted the expansive rule that a worker is a statutory employee

whenever he performs a task that is "an integral part of" or

"essential to" the principal's business. Over the years, that

court crafted a more restrictive rule that allowed tort recovery

when the work required specialized tools or skills, involved

construction rather than maintenance, was never performed by the

principal's direct employees, or was less than routine. See Berry

v. Holston Well Service, Inc., 488 So. 2d 934, 936-39 (La. 1986).

The Louisiana legislature registered its disapproval of this

restrictive application of the statutory-employee rule in 1989 when

it amended § 1061(A) to reverse the effect of Berry. But the

amendment does not indicate whether courts should revert to

Thibodaux's integral-part-of test, and at the time trial courts

disagreed on the question of whether § 1061(A) imposes the

Thibodaux test or a more generous "totality of the circumstances"

test. Compare Kinsey v. Farmland Indus., Inc., 39 F.3d 603, 607

(5th Cir. 1994) (concluding that the 1989 amendment to § 1061(A)

reinstated the rule announced in Thibodaux) with Kirkland v.

Riverwood Int’l, U.S.A. (“Kirkland I”), 658 So. 2d 715, 720-21 (La.

Ct. App. 1995) (creating a six-factor totality-of-the-circumstances

test in the wake of the 1989 amendment), aff’d, ___ So. 2d ___,

1996 WL 523694 (La. Sept. 13, 1996).
5

The Louisiana Supreme Court has recently rejected the view

that the 1989 amendment resurrected Thibodaux. Kirkland v.

Riverwood Int’l, U.S.A. (“Kirkland II”), ___ So. 2d ___, 1996 WL

523694, at **8 (La. Sept. 13, 1996) (“Once the Legislature declared

in 1989 that no single factor is determinative, the fact-based

nature of the inquiry virtually necessitates a multi-factored,

case-by-case factual inquiry under the totality of the

circumstances.”). But even without this guidance from the highest

court in Louisiana, we would be compelled to apply the totality-ofthe-circumstances test. Georgia Gulf admits that at trial it

agreed that the jury should be instructed to consider the six

factors set out in the Kirkland I decision and to weigh those

factors in light of the totality of the circumstances. The court

gave such an instruction, and the jury explicitly found that Payne

& Keller's work was not a part of Georgia Gulf's business.

Georgia Gulf contends that our recent cases on Louisiana's

statutory-employment rule compel a different result. See Kinsey,

39 F.3d at 607; Morgan v. Gaylord Container Corp., 30 F.3d 586, 589

(5th Cir. 1994); Thompson v. Georgia Pacific Corp., 993 F.2d 1166,

1168-69 (5th Cir. 1993); Salsbury v. Hood Indus., Inc., 982 F.2d

912, 914-16 (5th Cir. 1993). We decided those cases before

Louisiana clarified its law in Kirkland II. Furthermore, the

principals in those cases did not waive their right to invoke the

Thibodaux test as a shield against tort liability.
6

At bottom, then, Georgia Gulf's argument boils down to the

claim that there was insufficient evidence on which the jury could

base its conclusion that under a six-factor totality-of-thecircumstances test Mr. Dominique was not a statutory employee. We

do not find this argument persuasive. In addition to Mr.

Dominique, two other Payne & Keller employees--Ronald Freeman and

Gerald Bailey--testified that pipe-fitting takes several months to

learn and requires special tools. Lynn Landry, a Payne & Keller

employee who works at Georgia Gulf as a maintenance manager,

testified that Georgia Gulf routinely renews its maintenance

contract with Payne & Keller every year by letter. Georgia Gulf,

by contrast, did not present evidence that its direct employees

regularly serve as pipe-fitters.

We conclude, therefore, that there was ample evidence to

support the jury’s finding that under the totality-of-thecircumstances test Mr. Dominique was not performing work that was

a part of Georgia Gulf’s trade, business, or occupation.

B.

Georgia Gulf argues that the evidence does not support the

conclusion that Mr. Dominique was injured while working at its

plant. It notes that Mr. Dominique’s own testimony is the only

direct support for his claim that he bumped the pipe and nearly

fell into the water. Furthermore, Georgia Gulf argues, Mr.

Dominique’s explanation for the absence of a formal accident report

conflicts with Georgia Gulf’s payroll records.
7

Of course, we agree that there is room to doubt the accuracy

of Mr. Dominique’s account of the cause of his injury. But we will

not substitute our judgment for the fact-finding role of the jury,

which was free both to believe the witnesses who testified on

behalf of Mr. Dominique and also to conclude that Georgia Gulf

breached its duty to exercise reasonable care.

C.

In their cross-appeal, Mr. and Mrs. Dominique contest the

sufficiency of the jury’s award of $15,000 for his general damages

and $3,000 for her loss of consortium.

Mr. Dominique went through a surgical procedure to reduce the

pain from his ruptured disc, but he continues to experience pain in

his back. The trial included testimony that Mr. Dominique has

struggled with impotence and clinical depression as a result of his

back injury. It also included testimony that Mr. Dominique suffers

from diabetes and liver and kidney problems that were not caused by

the accident at Georgia Gulf’s plant. The jury also heard Mr.

Dominique describe the decrease in his psychological health and

physical strength and mobility.

 We recognize that factually similar cases in Louisiana have

yielded larger awards for general damages. See Creppel v. American

Tugs, Inc., 668 So. 2d 374, 378-79 (La. Ct. App.), writ denied, 672

So. 2d 674 (La. 1996); Boudreaux v. Blank, 664 So. 2d 705 (La. Ct.

App. 1995). Nevertheless, “[i]n reviewing a damage award, the
8

appellate court ‘is not to decide what it considers to be an

appropriate award, but rather to review the exercise of discretion

by the trier of fact.’” Olivier v. LeJeune, 668 So. 2d 347, 351

(La. 1996) (quoting Youn v. Maritime Overseas Corp., 623 So. 2d

1257, 1260 (La. 1993), cert. denied, 510 U.S. 1114, 114 S. Ct. 1059

(1994)). We cannot say that the jury’s assessment of the monetary

value of Mr. Dominique’s physical pain, mental anguish, and loss of

enjoyment of life was outside the range of its discretion. See

Evans v. Kilbert, 660 So. 2d 167, 170-71 (La. Ct. App. 1995)

(declining to grant additur to a plaintiff who received $7,500 in

general damages for a back injury and noting that the jury had an

opportunity to observe the plaintiff’s physical condition and weigh

his credibility). Nor can we say that Mrs. Dominique’s recovery of

$3,000 for loss of consortium was legally inadequate.

III.

Because we find no error in the trial proceedings, the jury’s

determinations both as to liability and as to damages are AFFIRMED.