IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30651

LARRY GROOVER; AMBER LEE WELLS, natural guardian and mother of

Brianna Sadie Nicole; LAURA CRISTINA MARCADO, natural guardian and

mother of Matthew Gabriel Nickolas,

Plaintiffs - Appellants

v.

CAMP DRESSER & MCKEE INC., also known as CDM; WILLIAM E.

ROUEGE; ZURICH AMERICAN INSURANCE COMPANY; ACE

AMERICAN INSURANCE COMPANY,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:07-cv-00252-CJB-SS

Before REAVLEY, JOLLY, and STEWART, Circuit Judges.

PER CURIAM:

*

Camp Dresser & McKee (CDM) contracted with St. Tammany Parish,

Louisiana (hereinafter the Parish) to serve as an independent contractor and

supervise and manage the removal and clean up of debris resulting from

Hurricanes Katrina and Rita. After competitive bidding, the Parish hired OMNI

United States Court of Appeals

Fifth Circuit

F I L E D

March 28, 2011

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.

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Pinnacle, LLC (OMNI) to provide all labor and materials necessary to remove

the debris. In accordance with this contract, one of OMNI’s subcontractors hired

Groover Tree Services (GTS) to cut and trim trees at certain locations. As a crew

from GTS was working at one of these sites, Chad Groover (Groover) was

electrocuted and later died from complications related to the incident.

Subsequently, Groover’s family members brought a negligence action against

multiple defendants. The parties filed cross motions for summary judgment.

The district court granted the defendants’ motion for summary judgment. We

AFFIRM.

I.

On March 20, 2006, the Parish entered into a contract with CDM, a

consulting engineering firm. Attached to the contract was a “Property

Demolition Debris Removal Plan” (hereinafter PDDR) that defined the scope of

CDM’s services. The PDDR explained that CDM was to act as the Parish’s

designated representative to “monitor, supervise and manage all aspects of the

demolition and debris removal contract and insure that only eligible work is

performed.” Following the signing of CDM’s contract, the Parish awarded OMNI

a contract whereby OMNI agreed to provide “all labor and materials and perform

all of the work” necessary to remove designated hurricane debris. To assist

OMNI in the performance of the contract, OMNI entered into a subcontract with

Cahaba Disaster Recovery (Cahaba). In furtherance of its obligation under the

subcontract with OMNI, Cahaba then entered into a subcontract with Sure

Form, Inc. (Sure Form), which in turn, entered into an oral agreement with GTS.

On the morning of December 7, 2006, William Rouege (Rouege), a CDM

work-site monitor, received a “Work-Site Plan” (WSP) that identified specific

trees or limbs that the Federal Emergency Management Agency predetermined

eligible and authorized for removal from the designated location. Rouege arrived

at the work site, met with and discussed the work with the property owner, and

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awaited the arrival of a work crew. Shortly thereafter, the GTS work crew

arrived at the job site. Rouege performed a walkthrough with the work crew and

identified the specific trees or limbs to be removed according to the WSP. The

work crew began to cut and trim trees identified on the WSP. Groover was

operating an aerial lift machine, which had been delivered on site to reach limbs

and branches that were in the trees high above the work area. As Groover

maneuvered around the job site and raised the basket of the lift machine into

place, the basket made contact with an energized power line, and he was

electrocuted. Seven months later, Groover died from complications resulting

from the incident.

Subsequently, Larry Groover, Chad Groover’s brother; Amber Lee Wells,

the mother and guardian of Groover’s daughter; and Laura Cristina Marcado,

the mother and guardian of Groover’s son (collectively Plaintiffs), filed suit

against multiple defendants, including CDM, Rouege, and CDM’s insurers,

Zurich American Insurance Company (Zurich), and ACE American Insurance

Company (ACE) (collectively Defendants). The Plaintiffs alleged that CDM was

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negligent and that the company’s negligence caused Larry Groover to suffer

mental anguish when he witnessed his brother’s death.

The Defendants filed a motion for summary judgment. Relevant here,

they alleged that they did not have a legal duty to protect Groover from injury.

The Plaintiffs filed a cross motion for partial summary judgment, asking the

The Plaintiffs filed suit against numerous defendants, and the defendants filed 1

several third-party claims. Relevant to the present appeal, the Plaintiffs filed suit against

CDM, Rouege, Zurich, ACE, Scottsdale Insurance Company (hereinafter Scottsdale), Omni,

and Cahaba. In Groover v. Scottsdale Ins. Co., 586 F.3d 1012 (5th Cir. 2009), a panel of this

court affirmed the district court’s grant of summary judgment in favor of defendants

Scottsdale, Omni, and Cahaba. At issue in this case is the Plaintiffs’ appeal of the district

court’s grant of CDM, Zurich, and Rouege’s joint motion for summary judgment. At the

district court, ACE adopted this motion for summary judgment. Thus, the district court’s

judgment also applied to ACE. In a letter to this court, on November 1, 2010, ACE adopted

CDM’s filing with this court, claiming that its interests are aligned with CDM’s. 

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district court to conclude that the Defendants had a statutory duty, under the

Louisiana Overhead Power Line Safety Act (OPLSA), LA. REV. STAT.

§§ 45:141–46, to contact the local electric company and have the power lines deenergized prior to the incident. The district court held a hearing on the parties’

motions. After hearing arguments from the parties, the district court orally

granted the Defendants’ motion for summary judgment. The Plaintiffs timely

appealed.

II.

A.

This court reviews a district court’s grant or denial of summary judgment

and application of state law de novo. Turner v. Baylor Richardson Med. Ctr., 476

F.3d 337, 343 (5th Cir. 2007). Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). If the movant

demonstrates the absence of a genuine issue of material fact, the burden shifts

to the non-movant to provide specific facts showing the existence of a genuine

issue for trial. Id. 56(c), (e).

B.

This is a diversity case, and Louisiana state law governs the issue of

liability. Under Louisiana law, the threshold issue in a negligence action is

whether the defendant owed the plaintiff a duty. Audler v. CBC Innovis Inc.,

519 F.3d 239, 249 (5th Cir. 2008) (citing Meany v. Meany, 639 So. 2d 229, 233

(La. 1994)). Whether a duty is owed is a question of law. Audler, 519 F.3d at

249. “In deciding whether to impose a duty in a particular case, Louisiana

courts examine whether the plaintiff has any law to support the claim that the

defendant owed him a duty.” Id. (internal quotation marks omitted). Here, the

Plaintiffs have not pointed to sufficient evidence to establish nor provided case

law to support their contention that CDM owed GTS a duty.

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The Plaintiffs claim that CDM was the principal and GTS was an

independent contractor. Thus, they contend, CDM had a duty to GTS because

CDM allegedly controlled and expressly authorized the unsafe work practices

that led to Groover’s death. See Roberts v. Cardinal Servs. Inc., 266 F.3d 368,

380 (5th Cir. 2001) (explaining that, under Louisiana law, a principal is not

liable for the injuries resulting from the negligent acts of an independent

contractor, unless the principal retained “operational control” over the

contractor’s work, expressly or impliedly approved the unsafe work practices, or

the activity is ultrahazardous). However, the Plaintiffs have not shown, as a

threshold matter, that a principal-independent contractor relationship existed

between CDM and GTS.

It is well-established under Louisiana law that “the relationship between

the principal and the independent contractor is in large measure determined by

the terms of the contract itself.” Duplantis v. Shell, 948 F.2d 187, 193 (5th Cir.

1991) (internal quotation marks omitted). By examining the contract, the court

can determine to what extent the alleged principal reserved the right to control

the alleged independent contractor’s work. Id. Here, the record shows—and the

parties acknowledge—that CDM and GTS did not have a contract. CDM’s

contract was with the Parish. GTS’s contract was an oral agreement with Sure

Form. It appears that the Plaintiffs ask us to presume that the relationship

between CDM and GTS was that of principal-independent contractor based on

CDM’s contract with the Parish, the PDDR, and CDM’s General Health and

Safety Plan for its employees. Having closely examined the record, we decline

to hold that, as a matter of law, a principal-independent contractor relationship

existed between the parties.

Finally, the Plaintiffs’ argue that the district court erred in dismissing

their partial motion for summary judgment because CDM’s alleged duty arises

under the OPLSA. However, this argument is contrary to the OPLSA’s purpose.

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The OPLSA provides a means by which powerline operators and owners can hold

individuals and companies liable “for all damages, costs, or expenses incurred

by the owner or operator as a result” of contact with powerlines during the

course of unauthorized work. LA. REV. STAT. § 45:144(A). See generally Moreno

v. Entergy Corp., 49 So. 3d 418, 420–21 (La. Ct. App. 5th 2010) (energy company

sought indemnification pursuant to the OPLSA). Thus, the Plaintiffs’ arguments

are unavailing and the district court did not err in dismissing their motion.

III.

For the foregoing reasons, we AFFIRM the district court’s judgment.

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