### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 Intern a tional, Incorporated (GPI). Because the district court did not err in holding that GPI, as Nielsen’s U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 22 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5th Cir. R. 47. 5, the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dentexc eptund er the lim ite d cir cum st ance s se t for th in 5th Cir. R. 47. 5.4. Case: 11-30614 Document: 00511797805 Page: 1 Date Filed: 03/22/2012statutory employer, is immune from tort liability to N i e lsen under Louisiana

Workers’ Compensation Act, we AFFIRM. I. BACKGROUND I n 2 0 0 3 or 2004, Konecranes, Inc. (Konecranes) approached Ni e l s e n ab o ut the opportunity to work on crane repairs. Konecranes called Nielsen to inform him where to arrive, what time to arrive, and w h at training was required. However, Konecra n e s routed Nielsen’s employment process through Clayton Adminsitrative, Inc. (CAI). Kone c r a n e s used CAI’s services to pay part of its workforce, including Nielsen. There was no written agreement between Konecranes and C AI 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 p a i d its employees every two weeks; Nielsen got paid every week. Nielsen’s s upervisors, 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) , t h at 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 cra n es at GPI’s facility. The day after the accident, Konecranes gave Nielsen an incident

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

Nielsen expressing concern about what legal action Nielsen was going to take. O n e y e ar 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 f r om 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 f o r summary judgment and this appeal followed. II. DISCUSSION We review the district court’s grant of summary judgmen t 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 is s u e 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 recover y o f w o rkers’ compensation benefits as his exclusive remedy against his employer and may not sue his

Su b se quent ly, Louis iana Wor ke rs ’ Com pens atio n Corp orat ion (“ LWCC”) fil ed a 1

. mo tio n to inte rvene st ating that Nie lse n had rec eived wo rk ers ’ com pens atio n paym ents fr om LWCC as a res ult of his Sep tem ber 23, 2008 injurie s. LWCC is not a par ty to the cur rent sui t. The dis tri ct cour t dis mi ss ed LWCC’s mo tio n to inte rvene st ating that , beca use Nie lse n’s clai m for injurie s agains t GPI had been dis mis se d ther e w a s no unde rlying sui t. LWCC sub se quent ly f

iledno tic e o f app eal. LWCC’s c laimr em ains unr es olved

.

3 Case: 11-30614 Document: 00511797805 Page: 3 Date Filed: 03/22/2012employer, or any principal, in tort.” St. Angelo v. United Scaffolding , I n c . /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 w e l l 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 employe r/ e mployee relationship can arise when, in conformance wit h L a . Rev. Stat. § 23:1061, a principal hires a contractor to perform services that are part of the principal’s business; in thi s s i tuation, the principal can become the statutory employer of the contractor’s employees. Here, it is undisputed that, under Section 13 of the GP I

- Ko n ecranes 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 n e i t h e r 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 GPIKo necranes contract did not apply to CAI employees, he is not barr e d b y th e Workers’ Compensation Ac t f r o m pursuing this tort action against GPI. GPI counters that Nielsen was an employee of Konecranes a n d , therefore, is prohibited from pursuing this action agai n st GPI by Section 13 of the GPIKonecranes contract and Louisiana’s Workers’ Compensation Act. Lo ui s i an a c o urt s ge n e r ally ev aluate the existence of an emp loye e - e m p loye r relationship by looking to factors indicating that the employer has the right to control the employee, including “(1) selection and engagement; (2) pa y ment of wages; (3) power of dismissal; and (4) power of control. ” F e la n 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: 03/22/20121172 (La. 1998). We agree with the district court’s conclusion that these factors

indicate that Nielsen was a direct employee of Konecranes. First, Konecranes select e d 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 Nie l s e n ’ s t imesheets. The fact that Nielsen’s paychecks came from CAI is insufficient to overcome the control exercised b y 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’ e m p loye e s. Though Nielsen had

a supervisor at CAI whom he never met in person, Nielsen maintained contact with only his Konec r a n e s ’ 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