1 District Judge from the Southern District of Mississippi, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 92-3011.

James Edward ROSSKAMP, Plaintiff-Appellant, Cross-Appellee,

v.

KERR McGEE CORPORATION, Intervenor-Plaintiff-Appellant, Cross-Appellee,

Phillips Petroleum Company, Defendant-Appellee, Cross-Appellant.

June 8, 1993.

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

Before JOLLY and DAVIS, Circuit Judges, and BRAMLETTE 1 , District Judge.

W. EUGENE DAVIS, Circuit Judge:

Plaint iff James Edward Rosskamp was a Kerr McGee Corporation employee who serviced

platforms throughout the Gulf. While he was checking the light on a navigat io n-aid pole on a

Louisiana platform, the pole fell with him and on him to the deck below. Phillips Petroleum Company

was a one-half owner of the platform with Kerr McGee. The co-owners had entered a joint operating

agreement under which the platform was operated by Kerr McGee.

Rosskamp sued Phillips Petroleum as platform owner for the ruinous condition o f the

platform. Kerr McGee intervened to recover worker's compensation benefits paid Rosskamp.

Phillips de fended, arguing immunity from tort liability by virtue of its status as either a joint

venturer/partner with Kerr McGee and or as R o sskamp's statutory employer. These two tort

immunit y defenses were t ried t o the court, and damages were tried to a jury . After a verdict for

Rosskamp, Phillips prevailed on a motion to reconsider tort immunit y. The court held that Phillips

was immune as a statutory employer. We affirm.

I.

Under Louisiana law a "principal" or "statutory employer" is secondarily liable for worker's

compensation benefits to an injured employ ee and enjoys tort immunity. La.Rev.Stat.Ann. §§23:1032, 1061 (West 1985 and Supp.1993). A "principal" is "any person who undertakes to execute

any work which is a part of [its] trade, business or occupation in which [it] was engaged at the time

of the injury, or which [it] had contracted to perform and contracts with any person for the execution

thereof." La.Rev.Stat. § 23:1061.

Plaint iff argues only that there is no evidence that Phillips undertook to operate or contracted

to operate the wellhead at issue. Relying chiefly o n M ozeke v. International Paper Co., 856 F.2d 722

(5th Cir.1988), Rosskamp argues that Phillips as a non-operating o wner cannot qualify as a

"principal" under the compensation statute.

We disagree. A non-operating o wner may indeed be a principal and therefore a statutory

employer immune from tort liabilit y. It is not necessary that the person who executes the contract

be a general contractor and that the contract for the performance of the work be in t he form of a

subcontract. In M

ozeke, for example, the "principal" was a non-operating owner of a paper mill, not

a general contractor. M

ozeke, 856 F.2d at 728. In Klohn v. Louisiana Pow er & Light, 406 So.2d

577 (La.1981), the Louisiana Supreme Court implicit ly held that a non-operating owner could be a

principal by holding that an operating agreement between the plant owner and a contractor provided

the principal/contractor relationship within the meaning of the statute. See K lohn, 406 So.2d at 580-

81; see also D evane v. Board of Comm'rs, 420 So.2d 1001, 1003 (La.Ct.App.1982) (a contract of

lease ma y establish a contractual relationship making the lessor/owner a "principal" if the lease

requires that the lessee execute work which the lessor had previously undertaken as part of its trade

or business).

The statute does not imply that a principal must undertake actual operations of the facilit y

where the injury occ urred. The statutory requirement is only that Phillips "undertake to execute

work" within its trade, business, or occupation. The lessor under the Devane lease met the statutory

require ment that it "undertake to execute work ... which is part of [its] business ... b y contracting

with the Public Grain Elevator for performan ce of that w ork. " D evane, 410 So.2d at 1004

(emphasis ours). Similarly, Phillips meets the requirement: it undertook to execute work that was

part of its business by entering into a mineral lease, investing in the pl a tform to expand its mineralproduction business, and contracting with Kerr McGee to operate the platform.

Rosskamp does not challenge the court's finding that Phillips was engaged in the trade,

business or occupation of exploring for and producing oil and gas from platforms at the time of the

accident. Nor is there any assigned error in the finding that Phillips contracted with Kerr McGee to

service the platform. Phillips thus undertook to execute work within its trade or business and

contracted with Kerr McGee for the execution of that work. Phillips is therefore a principal within

the meaning of the compensation statute and is immune to the tort claims brought by Rosskamp in

this matter. La.Rev.Stat. § 23:1032, 1061.

II.

Our agreement with the district court on statutory employer immunit y renders moot Phillips'

cro ss-appeal arguing alternative grounds for tort immunity. Because we affirm the judgment

overturning the verdict, we do not reach Plaintiff's claim regarding the reduction in the jury award.

Similarly, because we are not reinstating the verdict, Kerr McGee's appeal on its intervention to

recover compensation benefits from the jury award is also moot.

III.

The judgment dismissing the claims of Rosskamp on the basis of immunity is AFFIRMED.

The appeal of Kerr McGee and the cross-appeal of Phillips are DISMISSED as moot.