*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-30430

Summary Calendar

 

JOANN W. PIERCE,

Plaintiff-Appellant,

NORTHBROOK PROPERTY & CASUALTY

INSURANCE COMPANY,

Intervenor-Appellant,

versus

HOBART CORP., ET AL.,

 Defendants,

MARTIN MARIETTA CORPORATION,

a/k/a MARTIN MARIETTA MANNED

SPACE SYSTEMS,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Eastern District of Louisiana

(89-CV-2843-B)

 

October 27, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*
 

1 Louisiana's Workers' Compensation Act provides in

pertinent part:

Where any person (in this section referred to as principal)

undertakes to execute any work, which is a part of his

trade, business, or occupation or which he had contracted to

perform, and contracts with any person (in this section

referred to as contractor) 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 to

any employee employed in the execution of the work or to his

dependent, any compensation under this Chapter which he

would have been liable to pay if the employee had been

immediately employed by him.

LSA-R.S. 23:1061. In addition, such statutory employers are

immune from suits brought by the covered employees:

The rights and remedies herein granted to an employee or his

dependent on account of an injury, or compensable sickness

or disease for which he is entitled to compensation under

this Chapter, shall be exclusive of all other rights and

remedies of such employee, his personal representative,

dependents, or relations, against his employer, or any

principal or any officer, director, stockholder, partner or

employee of such employer or principal, for said injury, or

compensable sickness or disease. For purposes of this

Section, the word "principal" shall be 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.

LSA-R.S. 23:1032.

2

Joann Pierce and Northbrook Property & Casualty Insurance

Company appeal from the United States District Court's grant of

summary judgment to Martin Marietta Corporation, holding that

Martin Marietta is the statutory employer of Pierce. Under

Louisiana's Workers' Compensation Act, statutory employers are

immune from tort suits brought by individuals injured while

acting the scope of their employment.1 We have jurisdiction, 28

U.S.C. § 1291, and we now affirm.

I.
3

In 1978, the National Aeronautics and Space Administration

contracted with Martin Marietta to build components of the space

shuttle at the Michoud Assembly Facility. In 1982, the parties

amended the contract to add to Martin Marietta's contractual

obligations the responsibility of operating the Michoud facility

according to the Facilities Operating Plan. Pursuant to the FOP,

Martin Marietta was to "operate such cafeterias, dining room,

kitchens and storerooms as necessary to serve the operations" and

to "provide trained personnel to prepare and serve all food, food

products, confections, non-alcoholic beverages and other

products." Martin Marietta later contracted with Morrison's

Custom Management to operate the cafeterias and perform Martin

Marietta's food service obligations under the NASA contract.

On two, separate occasions in 1988, Pierce, an employee of

Morrison's, allegedly slipped and fell while working at her job

at the Michoud facility. Pierce filed suit in state court

against Martin Marietta and Hobart Corporation, the manufacturer

of the dishwater that allegedly leaked water onto the cafeteria

floor causing Pierce to fall. Alleging diversity, Hobart removed

the action to federal court. Northbrook intervened to recover

the workers' compensation benefits it had paid to Pierce, and

Pierce amended her complaint to name the United States, the owner

of the Michoud facility, as an additional defendant. Hobart and

the United States were subsequently dismissed from the suit.

The district court granted Martin Marietta's first motion

for summary judgment, holding that, under Louisiana's Workers'
4

Compensation Act, Martin Marietta was Pierce's statutory employer

since Morrison's was performing part of Martin Marietta's "trade,

business, or occupation" at the time of the injury. However,

finding a genuine issue of material fact existed whether

Morrison's contract work for Martin Marietta was specialized --

an ingredient of the "trade, business, or occupation" test -- we

vacated the summary judgment and remanded for further

proceedings. Pierce v. Hobart Corp., 939 F.2d 1305 (5th Cir.

1991).

On remand, Martin Marietta again sought summary judgment,

this time alleging that it was the statutory employer of Pierce

under the "dual contract" doctrine. The district court twice

denied summary judgment.

Upon consent of the parties, the case was referred to a

magistrate judge for trial. At a preliminary conference, the

magistrate judge agreed to reexamine whether Martin Marietta was

the statutory employer of Pierce under the "dual contract"

doctrine. Finding that no genuine issue of material fact

existed, the magistrate judge granted summary judgment to Martin

Marietta. This appeal followed.

II.

Northbrook first claims that the district court applied the

incorrect legal standard by failing to distinguish between

contracts for the performance of services and contracts for the

provision of services. Relying on Duvall v. Lake Kenilworth,

Inc., 467 So.2d 850 (La. App. 1984), cert. denied, 472 So.2d 919
5

(La. 1985), and Chauvin v. Gulf Coast Minerals, Inc., 509 So.2d

622 (La. App.), cert. denied, 512 So.2d 1175 (La. 1987),

Northbrook argues that while the statutory employer defense

applies where the contract is for the performance of services,

the defense is not available where the principal's contract with

the third party only requires it to provide services. We

disagree.

Duvall held that "to have agreed to pay the cost of a

service (e.g., electricity, telephone, pest control) . . . is not

to have 'contracted to perform' a work" within the statute's

meaning. 467 So.2d at 854 (emphasis omitted). Even if we were

to agree with Northbrook that Duvall's distinction between

contracts to provide and contracts to perform correctly describes

Louisiana law, we do not see how that fact advances Northbrook's

argument. The district court correctly held that, to establish

the "dual contract" statutory employer defense, Martin Marietta

must show 1) that it entered into a contract with a third party,

2) that pursuant to that contract, work must be performed, and 3)

that in order for Martin Marietta to fulfill its contractual

obligation to perform the work, it entered into a subcontract for

all or part of the work performed. Gobert v. McDermott, Inc.,

634 So.2d 873, 874-75 (La. App. 1993); Duncan v. Balcor Property

Management, Inc., 615 So.2d 985, 989 (La. App. 1993), cert.

denied, 617 So.2d 936 (La. 1993). As the district court

recognized, Duvall's distinction between contracts to provide and

contracts to perform is fully consistent with the second prong of
 

2 Offering even less support for Northbrook's argument,

the Louisiana Court of Appeals in Chauvin recognized that the

lower court had applied Duvall, distinguishing between contracts

to perform and contracts to provide, but the court of appeals

rested its decision on other grounds. 509 So.2d at 628. 

6

the inquiry requiring that work be performed pursuant to the

terms of the contract.2 In short, the district court did not

apply the incorrect legal standard to the dispute at hand.

Northbrook next argues that the district court erred in

holding that no genuine issue of material fact exists that the

food services provision of the NASA contract requires work to be

performed by Martin Marietta. Emphasizing the contract's use of

the verb "provide", Northbrook contends that "the 'Cafeteria' is

clearly set out as a service which Martin Marietta was not

expected to perform and did not contract to perform but rather

contracted to provide."

We reject Northbrook's contention. That Martin Marietta

promised it would "provide" trained personnel to operate the

cafeteria does not signify that the contract did not obligate it

to perform work. See Chauvin v. Jefferson Parish Sch. Bd., 595

So.2d 728, 732 (La. App. 1992) (holding that contract requiring

ACC to "provide and administer a program of treatment and/or

services" obligated ACC to perform work). The FOP stated that

Martin Marietta was "responsible for the operation of

cafeterias." Moreover, Jim Cain, Martin Marietta's manager of

contracts, testified in his deposition that the use of the word

"provide" instead of "perform" did not have any particular

significance, much less denote that Martin Marietta was not to
7

perform the food services itself. Stated another way, Martin

Marietta, unlike the apartment owner in Duvall, was contractually

bound to perform the service. It did not, as was the case in

Duvall, simply agree to pay the cost of a service which it was

never obligated itself to provide. See also Benoit v. Grey Wolf

Drilling, Inc., 520 So.2d 1104, 1107 (La. App. 1987) ("Unlike

Duvall, Grey Wolf did not simply obligate itself to provide a

service, it obligated itself to drill an oil and gas well."),

cert. denied, 522 So.2d 566 (La. 1988).

In addition, noting that the FOP divides Martin Marietta's

contractual obligations between "make" or "buy" duties,

Northbrook argues that the FOP's categorization of the cafeteria

as a "buy" duty creates a genuine issue of material fact by

denoting that Martin Marietta never intended to perform the

cafeteria services itself. We disagree. The FOP does not compel

Martin Marietta to subcontract the cafeteria services. Instead,

"[t]he Make/Buy arrangement may be changed based on economic

conditions at the time of subcontract expiration, contractual

changes, availability of skilled personnel, etc." In addition,

Jim Cain stated that the make/buy determinations, which were

originally made by Martin Marietta and not NASA, bore no

particular significance and that Martin Marietta would not breach

the contract if it were to perform any of the "buy" duties

itself. Indeed, under the terms of the FOP itself, Martin

Marietta remained "responsible for the operation of cafeterias."
8

Moreover, even if NASA and Martin Marietta had contemplated

at the time they negotiated the primary contract that a

subcontractor would perform the food service duties, such

intention is immaterial. It is the nature and extent of the

contractor's contractual duties, not the parties' intention at

that time they negotiated the contract, that determines whether

Martin Marietta performed work under the NASA contract. 

Otherwise, a general contractor who did all its work through

subcontractors would not qualify as a principal -- a proposition

rejected by the Louisiana courts. See Bradford v. Village Ins.

Co., 548 So.2d 106 (La. App.) (holding contractor who employed

only one person full-time and who customarily did most of its

work through subcontractors was statutory employer of

subcontractor's employee), cert. denied, 552 So.2d 396 (La.

1989).

III.

We hold that there is no genuine issue of material fact that

Martin Marietta contracted with NASA to operate the cafeterias at

the Michoud facility, that it undertook to perform work under the

terms of the contract, and that it contracted with Morrison's to

perform its contractual duties. Martin Marietta need demonstrate

no more to qualify as the statutory employer of Joann Pierce.

AFFIRMED.