IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30614

Summary Calendar

JONATHAN NIELSEN,

Plaintiff-Appellant,

v.

GRAPHIC PACKAGING INTERNATIONAL, INCORPORATED,

Defendant-Appellee,

v.

LOUISIANA WORKERS COMPENSATION CORPORATION,

Intervenor Plaintiff-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:09-CV-1757

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Appellant Jonathan Nielsen appeals the district court’s grant of summary

judgment in favor of Appellee Graphic Packaging International, Incorporated

(GPI). Because the district court did not err in holding that GPI, as Nielsen’s

United States Court of Appeals

Fifth Circuit

F I L E D

March 22, 2012

Lyle W. Cayce

Clerk

Pursuant to 5th Cir. R. 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

Cir. R. 47.5.4.

Case: 11-30614 Document: 00511797805 Page: 1 Date Filed: 03/22/2012
statutory employer, is immune from tort liability to Nielsen under Louisiana

Workers’ Compensation Act, we AFFIRM.

I. BACKGROUND

In 2003 or 2004, Konecranes, Inc. (Konecranes) approached Nielsen about

the opportunity to work on crane repairs. Konecranes called Nielsen to inform

him where to arrive, what time to arrive, and what training was required. 

However, Konecranes routed Nielsen’s employment process through Clayton

Adminsitrative, Inc. (CAI). 

Konecranes used CAI’s services to pay part of its workforce, including

Nielsen. There was no written agreement between Konecranes and CAI

regarding Nielsen’s work. Konecranes determined Nielsen’s rate of pay. 

Konecranes authorized Nielsen’s timesheet, kept a copy, and sent it to CAI. CAI

wrote Nielsen’s paychecks. Konecranes paid its employees every two weeks;

Nielsen got paid every week. Nielsen’s supervisors, Brad Howard and Ken

Lofton, were employed by Konecranes. Nielsen had a supervisor at CAI, Karen

Darosha, but Nielsen never met her in person.

In September 2008, Konecranes entered into a written contract with GPI

to repair GPI’s cranes in exchange for $6000. Section 13 of the GPI-Konecranes

contract established a statutory employer relationship between GPI and

Konecranes’ direct and statutory employees:

If services are to be performed at [GPI’s] facilities in . . . 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 relationship of [GPI] to the direct employees

and the statutory employees of [Konecranes] be that of a statutory

employer.

On September 23, 2008, Nielsen was injured while repairing cranes at

GPI’s facility. The day after the accident, Konecranes gave Nielsen an incident

2

Case: 11-30614 Document: 00511797805 Page: 2 Date Filed: 03/22/2012
report to fill out. Brad Howard, Nielsen’s supervisor at Konecranes, contacted

Nielsen expressing concern about what legal action Nielsen was going to take.

One year later, Nielsen filed suit against GPI in Louisiana state court.

GPI removed the case to federal court on the basis of diversity jurisdiction. GPI 1

filed a motion for summary judgment on the ground that Section 13 of the GPIKonecranes contract immunized GPI from the alleged tort liability to Nielsen

because it established GPI as Nielsen’s statutory employer (by virtue of Nielsen

being Konecranes’ employee). The district court granted GPI’s motion for

summary judgment and this appeal followed. 

II. DISCUSSION

We review the district court’s grant of summary judgment de novo. See

Shocklee v. Mass. Mut. Life Ins. Co., 369 F.3d 437, 439 (5th Cir. 2004). Summary

judgment is proper if the movant shows that there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a).

Nielsen argues that the district court erred in finding that he was a direct

employee of Konecranes and, correspondingly, a statutory employee of GPI. As

set forth below, this argument is without merit. 

Under the Louisiana Workers’ Compensation Act, La. Rev. Stat.

§ 23:1032, “an employee injured in an accident while in the course and scope of

his employment is generally limited to the recovery of workers’ compensation

benefits as his exclusive remedy against his employer and may not sue his

Subsequently, Louisiana Workers’ Compensation Corporation (“LWCC”) filed a

1.

motion to intervene stating that Nielsen had received workers’ compensation payments from

LWCC as a result of his September 23, 2008 injuries. LWCC is not a party to the current suit.

The district court dismissed LWCC’s motion to intervene stating that, because Nielsen’s claim

for injuries against GPI had been dismissed there was no underlying suit. LWCC

subsequently filed notice of appeal. LWCC’s claim remains unresolved.

3

Case: 11-30614 Document: 00511797805 Page: 3 Date Filed: 03/22/2012
employer, or any principal, in tort.” St. Angelo v. United Scaffolding, Inc./XServ., Inc., 40 So. 3d 365, 368 (La. Ct. App. 2010) (citation omitted); see also La.

Rev. Stat. §§ 23:1061, 23:1032; Prejean v. Maint. Enterprises, Inc., 8 So. 3d 766,

770 (La. Ct. App. 2009), writ denied, 11 So. 3d 496 (La. 2009). “The Act applies

both to a direct employer/employee relationship, as well as to a statutory

employer/employee relationship.” Labranche v. Fatty’s, LLC, 48 So. 3d 1270,

1272 (La. Ct. App. 2010). Simply put, a statutory employer/employee

relationship can arise when, in conformance with La. Rev. Stat. § 23:1061, a

principal hires a contractor to perform services that are part of the principal’s

business; in this situation, the principal can become the statutory employer of

the contractor’s employees. 

Here, it is undisputed that, under Section 13 of the GPI-Konecranes

contract, GPI was the statutory employer of Konecranes’ direct and statutory

employees. The parties dispute, however, whether Nielsen constituted a direct

or statutory employee of Konecranes. Nielsen argues that he was neither a

direct nor a statutory employee of Konecranes. Instead, Nielsen contends that

he was an employee of CAI. According to Nielsen, because Section 13 of the GPIKonecranes contract did not apply to CAI employees, he is not barred by the

Workers’ Compensation Act from pursuing this tort action against GPI. GPI

counters that Nielsen was an employee of Konecranes and, therefore, is

prohibited from pursuing this action against GPI by Section 13 of the GPIKonecranes contract and Louisiana’s Workers’ Compensation Act. 

Louisiana courts generally evaluate the existence of an employee-employer

relationship by looking to factors indicating that the employer has the right to

control the employee, including “(1) selection and engagement; (2) payment of

wages; (3) power of dismissal; and (4) power of control.” Felan v. F & F

Trucking, Inc., 708 So. 2d 430, 434 (La. Ct. App. 1998), writ denied, 717 So. 2d

4

Case: 11-30614 Document: 00511797805 Page: 4 Date Filed: 03/22/2012
1172 (La. 1998). We agree with the district court’s conclusion that these factors

indicate that Nielsen was a direct employee of Konecranes. 

First, Konecranes selected Nielsen as an employee by calling him and

informing him about this particular job at GPI. Second, Konecranes determined

Nielsen’s rate of pay, had the right to give Nielsen a raise, authorized Nielsen’s

paycheck, and kept records of Nielsen’s timesheets. The fact that Nielsen’s

paychecks came from CAI is insufficient to overcome the control exercised by

Konecranes over Nielsen’s wages. Third, CAI was not permitted to unilaterally

terminate Nielsen’s employment; any such termination needed to be approved

by Konecranes. Thus, Konecranes, not CAI, held the power to dismiss Nielsen. 

Fourth, Nielsen’s supervisors were Konecranes’ employees. Though Nielsen had

a supervisor at CAI whom he never met in person, Nielsen maintained contact

with only his Konecranes’ supervisors after the accident giving rise to this

action. The power to control Nielsen thus rested with Konecranes.

Accordingly, we hold that the district court did not err in concluding that:

(1) Nielsen was a direct employee of Konecranes; and (2) GPI, as Nielsen’s

statutory employer, was immune from the tort liability alleged by Nielsen in this

action. The district court’s judgment is AFFIRMED.

5

Case: 11-30614 Document: 00511797805 Page: 5 Date Filed: 03/22/2012