IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30388

ALEJANDRO JORGE-CHAVELAS; ALFREDO MORENO-ABARCA, 

 Plaintiffs - Appellees

v.

LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY; 

LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, 

 Defendants - Appellants

v.

AMERICAN INTERSTATE INSURANCE COMPANY, 

 Intervenor Plaintiff - Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

Before KING, HIGGINSON, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Workers’ compensation laws strike a statutory bargain between labor 

and management. They all but guarantee that a worker will recover from an 

employer for workplace injuries. In exchange for that certainty, the worker

gives up the right to pursue a potentially larger recovery in a tort suit—

employers are immune from such claims.

United States Court of Appeals

Fifth Circuit

FILED

March 7, 2019

Lyle W. Cayce

Clerk

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These tradeoffs mean that questions about whether the statutory 

scheme covers an injured worker can cause businesses and workers alike to 

oscillate between seemingly opposed positions. A worker uncertain about the 

chances of a tort suit will often seek workers’ compensation, prompting the 

business to argue that the worker does not fall within the statutory protections. 

If the worker has a strong tort claim, the roles may flip—the business then has 

an incentive to argue that workers’ compensation is the worker’s exclusive 

remedy. 

This case is of the latter variety. The insurer of a Louisiana sugarcane 

farm has raised several arguments that the farm is entitled to statutory 

immunity from this lawsuit brought by two injured cane planters. Those 

workers—entitled to a $2.5 million recovery if workers’ compensation does not 

apply—hope to show otherwise.

I.

Alejandro Jorge-Chavelas and Alfredo Moreno-Abarca, Mexican citizens

in the United States on work visas, were severely injured while working on a 

Louisiana sugarcane farm operated by Harang Sugars, L.L.C. Their legs were 

crushed when a Harang employee drove into the sugarcane cart they were 

sitting on.

No one disputes that Harang’s employee was at fault. Nor does anyone 

dispute the damages the plaintiffs suffered. Instead, Harang’s insurers

(collectively “Farm Bureau”) contend that Jorge-Chavelas and Moreno-Abarca 

were Harang’s employees, whose injuries are excluded from its general liability

policy. Alternatively, Farm Bureau argues that Louisiana workers’ 

compensation laws grant its insured immunity from this suit. Both positions

turn on the nature of the plaintiffs’ employment. And so we turn to the 

arrangement between the four main players: Jorge-Chavelas, Moreno-Abarca, 

their direct employer (Lowry Farms, Inc.), and Harang.

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Lowry plants sugarcane for other farmers. Because the sugarcane 

planting season is short but labor intensive, farmers prefer to contract out the 

work rather than hire the necessary short-term workers. Once a farm 

contracts with it, Lowry sends recruiters to Mexico to find cane planters. 

Jorge-Chavelas and Moreno-Abarca were two such recruits. Lowry obtained

the necessary visas and agreed to pay the workers an hourly rate and provide 

them housing, transportation to and from the worksite, and workers’ 

compensation insurance. It also explained that the workers would “be required 

to work all hours as directed by [Lowry’s] management personnel.”

Harang was one of Lowry’s clients. Their contract required Harang to 

pay Lowry on a per-acre-planted basis, as opposed to per hour worked by a 

planter.1 The agreement treated the planters as Lowry’s employees, stating 

that the payments were “for the work performed by Lowry Farms, Inc. 

workers.” While Harang requested 21 workers for the season, it had no role in 

the selection of those individuals. 

Once planting season began, Lowry recruiters became “crew leaders.” 

They oversaw planters in the fields, settled disputes between the planters, 

communicated with the farmers, reported injuries suffered by the planters to 

Lowry, and arranged the planters’ transportation back to Mexico. They also 

decided which planters would work on which farms. Crew leaders selected 

“straw bosses” to be their on-the-ground supervisors during the planting, and 

these Lowry employees trained the planters. At the end of each week, Harang 

filled out a time sheet for the planters, but it was the crew leaders’ 

responsibility to report the planters’ hours to Lowry. Every week, Lowry paid 

the planters.

 

1 Lowry gave Harang the option to pay an hourly rate to use its employees for “General 

Farm Labor” on days when planting was infeasible. It never did so.

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On the farms, the planters worked side-by-side with Harang’s

employees. Harang tractor drivers hauled the sugarcane carts while the Lowry 

planters followed behind in groups of three, pulling the cane from the carts and 

planting it in the ground. Harang provided the necessary equipment—the 

tractors, carts, and sugarcane all belonged to Harang. But it typically did not 

exert direct control over the planters. If its owner had a problem with the 

planters’ work, he would contact Lowry’s office manager, who would contact 

the crew leader, who would in turn communicate the concern to the planters. 

And only Lowry could fire its planters—Harang could voice concern about a 

planter in the hope that Lowry would find a substitute, but it could not 

terminate his employment.

Harang’s management did not believe the planters were its employees. 

On the day of the accident, after calling emergency services, Harang’s owner 

immediately notified Lowry. When asked why, he replied, “Because that’s 

their employees.” Indeed, Lowry’s workers’ compensation insurer covered 

plaintiffs’ medical expenses.2

Jorge-Chavelas and Moreno-Abarca sued Harang in federal district 

court, invoking diversity jurisdiction. After the court denied competing 

motions for summary judgment, a stipulated bench trial followed. The parties

agreed that Harang was at fault and that total damages would be $2.5 million 

(the limit of the Farm Bureau policy). The court had to decide the employment 

status of the plaintiffs and, relatedly, whether Harang was immune from suit. 

Concluding that the plaintiffs were not Harang’s employees and that the 

workers’ compensation laws did not otherwise provide Harang immunity, the 

 

2 The district court awarded that insurer—intervenor American Interstate Insurance 

Company—reimbursement for the payments it made to and on behalf of the appellees. 

American Interstate has informed the court that it too hopes we affirm the judgment below, 

standing on the arguments plaintiffs make.

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district court entered judgment in favor of Jorge-Chavelas for $1,937,500 and 

Moreno-Abarca for $562,500.

II.

Louisiana law applies in this diversity case. Erie R.R. Co. v. Tompkins, 

304 U.S. 64 (1938). Our task is to “determine as best [we] can [how] the 

Louisiana Supreme Court would decide” it. Gulf & Miss. River Transp. Co. v. 

BP Oil Pipeline Co., 730 F.3d 484, 488 (5th Cir. 2013) (quotation omitted). 

When the absence of a controlling high court decision requires us to make an

“Erie guess” about Louisiana law, we consider many of the same sources we 

use when guessing the law of other jurisdictions: decisions and reasoning of 

the state’s courts; general rules of the jurisdiction, such as those governing 

statutory interpretation; and secondary sources like treatises. Id. at 488–89. 

But Louisiana’s “civilian methodology” means the pecking order of those 

sources is different than it is for a common law state. Boyett v. Redland Ins. 

Co., 741 F.3d 604, 607 (5th Cir. 2014). Louisiana’s “Constitution, codes, and 

statutes” are of paramount importance to its judges. Am. Int’l Specialty Lines 

Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003). The doctrine 

of stare decisis, a creature of common law, is alien to the civilian system. 

Boyett, 741 F.3d at 607. Unlike stare decisis, which can flow from one decision,

in the civil system numerous court decisions must agree on a legal issue to 

establish jurisprudence constante (French for constant jurisprudence). And 

even when that consensus exists in the caselaw, it remains only persuasive 

authority for the Erie guess; “we are not strictly bound” by the decisions of 

Louisiana’s intermediate courts. Am. Int’l Specialty Lines, 352 F.3d at 261 

(quoting Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 

(5th Cir. 1992)); see generally Alvin B. Rubin, Hazards of a Civilian Venturer 

in Federal Court: Travel and Travail on the Erie Railroad, 48 LA. L. REV. 1369 

(1988).

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A.

The primacy of legislation under the civil law tradition guides our 

analysis of the question Farm Bureau’s primary argument poses: Does

Louisiana’s choice to extend workers’ compensation—usually reserved for 

employees—to one class of independent contractors apply to the employees of 

those independent contractors and thus immunize Harang from this suit?

As noted above, workers’ compensation laws are a statutory compromise

granting employers immunity from negligence suits3 in exchange for their

guaranteeing a lesser recovery for on-the-job injuries.4 Within that general 

framework, states have experimented with the scope of both the coverage and 

the immunity. It is no different in Louisiana. For instance, although 

independent contractors generally are excluded from Louisiana’s workers’ 

compensation regime, there is an exception. Section 23:1021(7)5 of Louisiana’s 

Revised Statutes states: 

“Independent contractor” means any person who renders service, 

other than manual labor, for a specified recompense for a specified 

result either as a unit or as a whole, under the control of his 

principal as to results of his work only, and not as to the means by 

which such result is accomplished, and are expressly excluded 

from the provisions of this Chapter unless a substantial part of the 

work time of an independent contractor is spent in manual labor 

by him in carrying out the terms of the contract, in which case the 

 

3 Immunity does not extend to an employer’s intentional torts. La. Rev. Stat. Ann. 

§ 23:1032(B). 4 Among other limits, two potentially sizable categories of damages—pain and 

suffering and punitive damages—are not recoverable in Louisiana as workers’ compensation. 

Those benefits are limited to three types of loss: a partial compensation for lost wages, see 

La. Rev. Stat. Ann. § 23:1221(1)–(3), medical expenses, id. § 23:1203, and so-called “schedule” 

losses compensating for particular disfigurements, id. § 23:1221(4)(a)–(r); see also 13 H. 

ALSTON JOHNSON III, LA. CIV. LAW. TREATISE, WORKERS’ COMPENSATION LAW AND 

PRACTICE § 271 (5th ed. 2018). 5 We note, to avoid confusion, that changes to the Louisiana workers’ compensation 

laws moved this provision from its previous position in section 1021(6) to section 1021(7). 

Some cases discussed in this opinion cite the older section.

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independent contractor is expressly covered by the provisions of 

this Chapter.

In other words, an independent contractor who is engaged primarily in manual 

labor has a claim for workers’ compensation against his principal. More 

importantly to Farm Bureau, that principal is immunized from a negligence

suit. La. Rev. Stat. Ann. § 23:1032.

Farm Bureau maintains that this statute applies not just to independent 

contractors, but also to the employees of independent contractors. In this case, 

that would mean that the principal (Harang) is immune from suit by the 

employees (Jorge-Chavelas and Moreno-Abarca) of the principal’s independent 

contractor (Lowry).

The text of the statute says otherwise, and that is where we must begin. 

See 84 Lumber Co. v. Cont’l Cas. Co., 914 F.3d 329, 334 (5th Cir. 2019)

(explaining that, in Louisiana, “[w]hen a law is clear and unambiguous . . . it 

shall be applied as written”) (quotation omitted). Section 1021(7) excludes 

most independent contractors from the workers’ compensation regime. But it 

grants coverage to contractors who spend a “substantial part” of their time 

providing “manual labor.” In either situation, the statute addresses only 

independent contractors.

Farm Bureau’s argument that the provision brings plaintiffs under the 

workers’ compensation law fails at this most basic requirement. As the term 

indicates, an independent contractor is “one that contracts” with the principal. 

See Contractor, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002)

(also defining “contractor” as “a party to a bargain”). Under this widespread 

understanding of the term, Jorge-Chavelas and Moreno-Abarca are not 

Harang’s contractors; they never entered into an express or implied agreement 

with the company. La. Civ. Code Ann. art. 11 (“The words of a law must be 

given their generally prevailing meaning.”). A common example illustrates 

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this. Assume a homeowner hires a pest control company to exterminate bugs. 

The company becomes the homeowner’s contractor. But that typically does not 

result in an agency relationship between the homeowner and the employee of 

the pest control company.

Other language in section 1021(7) confirms that the statute is referring 

to “independent contractor” in this ordinary sense of the term—one who has a 

contractual relationship with the principal. The statute excepts only an

independent contractor for whom a substantial part of his work is “spent in 

manual labor by him in carrying out the terms of the contract.” (emphases 

added). And the relevant contract is one “for a specified recompense for a 

specified result either as a unit or as a whole.” But, as in this case, the 

employees of an independent contractor are typically not parties to “the 

contract,” which would be between the principal and the contractor.

What little guidance we have from the Supreme Court of Louisiana is 

consistent with this plain meaning of the statute. In Lushute v. Diesi, the court 

remarked that the exception was meant to extend to a contractor engaged in 

manual labor “in carrying out the terms of his contract with the principal.” 354 

So. 2d 179, 182 (La. 1977) (emphasis added). This suggests the state high court 

would adopt this natural reading—that the statute covers only contractors 

themselves—rather than Farm Bureau’s more expansive one. And that

comports with the Louisiana Supreme Court’s general approach to workers’ 

compensation laws. When interpreting the immunity afforded employers, 

“every presumption should be on the side of preserving the general tort or 

delictual rights of an injured worker against the actual wrongdoer, in the 

absence of explicit statutory language limiting or excluding such rights.” 

Champagne v. Am. Alt. Ins. Corp., 112 So. 3d 179, 184 (La. 2013) (quoting 

Roberts v. Sewerage & Water Bd. of New Orleans, 634 So. 2d 341, 346 (La. 

1994)).

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Despite the absence of that necessary statutory command, three 

Louisiana intermediate court decisions have held or suggested that principals 

are immune from tort suits brought by their contractors’ employees if those 

employees were engaged in manual labor. In Lumar v. Zappe Endeavors, 

L.L.C., an employee of an independent contractor sued his employer’s principal 

in tort. 946 So. 2d 188 (La. App. 5 Cir. 2006). Louisiana’s Fifth Circuit Court 

of Appeal held that, because a contractor “performs its duties through its 

employees,” the “limitations applicable to [the contractor] are also applicable 

to its employees.” Id. at 191. Two other courts relied on Lumar not to 

immunize an employer, but to find a contractor’s employee was entitled to 

recover workers’ compensation from the contractor’s principal. Courtney v. 

Fletcher Trucking, 111 So. 3d 411, 418 n.6 (La. App. 1 Cir. 2012); Moss v. 

Tommasi Constr., Inc., 37 So. 3d 492, 499 (La. App. 3 Cir. 2010).

Three decisions do not jurisprudence constante make. That is especially 

true when the court that first announced the rule Farm Bureau presses us to 

adopt declined to follow it just three years later. In Daigle v. McGee Backhoe

& Dozer Service, the Fifth Circuit Court of Appeal denied a claim for workers’ 

compensation brought by an independent contractor’s employee against the 

contractor’s principal. 16 So. 3d 4 (La. App. 5 Cir. 2009). As a dissent in that 

case pointed out, following Lumar would have made the contractor’s employee 

eligible for workers’ compensation under section 1021(7).6 Id. at 8 (Winsberg, 

J., dissenting). The majority instead suggested that an employee of a

contractor is eligible for workers’ compensation against his employer’s 

principal, if at all, through a separate provision, section 23:1061, which defines 

“statutory employment.” Id. at 7. That statute authorizes, in certain 

 

6 The plaintiff in Daigle made the same point, albeit without citing Lumar. Original 

Brief of Eddie Daigle, Daigle v. McGee Backhoe & Dozer Serv., 16 So. 3d 4 (La. App. 5 Cir. 

2009), 2008 WL 5478293, at *7–8.

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circumstances, a claim for workers’ compensation by a contractor’s employee 

against the contractor’s principal “as if he were [that] principal’s employee.” 

13 H. ALSTON JOHNSON III, LA. CIV. LAW. TREATISE, WORKERS’ COMPENSATION 

LAW AND PRACTICE § 121 (5th ed. 2018) (emphasis in original).

Other Louisiana courts have likewise analyzed cases like this one 

through the lens of statutory employment, explaining that section 1061 

“provides guidance as to when a contractor’s employee, rather than the 

contractor himself, may recover under the principal’s workers’ compensation 

liability.” Miller v. Higginbottom, 768 So. 2d 127, 132 (La. App. 2 Cir. 2000);

see also Prejean v. Maint. Enters., Inc., 8 So. 3d 766, 770 (La. App. 4 Cir. 2009);

Poirrier v. Cajun Insulation, Inc., 459 So. 2d 737, 738–39 (La. App. 4 Cir. 1984). 

Louisiana’s leading workers’ compensation treatise agrees that statutory 

employment is the proper framework for analyzing whether the employee of 

an independent contractor can recover workers’ compensation from the 

principal. See JOHNSON III, supra § 82 (noting the contractor’s pursuit of 

compensation would be analyzed under section 1021(7) while his employee

“must seek compensation under the different test of [section] 1061”).

That makes sense as the terms of the statutory employment statute

directly address the employee-of-an-independent-contractor situation we 

confront. When applicable, workers’ compensation is the exclusive remedy for 

a contractor’s employee against the principal. La. Rev. Stat. Ann. 

§ 23:1061(A)(1). The catch is that the relationship must be formed by contract. 

Id. § 23:1061(A)(3).7 No such contract exists in this case, which explains why 

Farm Bureau does not seek section 1061’s help. But the existence of this 

 

7 There is another way to create the statutory employment relationship known as the 

“two contract” theory, but it is not applicable to this case. La. Rev. Stat. Ann. § 23:1061(A)(2); 

see also Allen v. Ernest N. Morial-New Orleans Exhibition Hall Auth., 842 So. 2d 373, 379 

(La. 2003).

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express avenue for employees of contractors to seek workers’ compensation 

from a principal (and in turn for those principals to seek immunity) further 

supports limiting section 1021(7) to independent contractors themselves, not 

their employees. La. Civ. Code Ann. art. 13 (“Laws on the same subject matter 

must be interpreted in reference to each other.”); Fontenot v. Reddell Vidrine 

Water Dist., 836 So. 2d 14, 28 (La. 2003) (“It is a fundamental rule of statutory 

construction that when two statutes deal with the same subject matter, the 

statute specifically directed to the matter at issue must prevail as an exception 

to the more general statute.”).

Sections 1021(7) and 1061 are both deviations from typical workers’ 

compensation principles, but they serve different purposes. Section 1021(7) 

protects a specific class of independent contractors who would not otherwise be 

entitled to benefits. It was added because, when it came to manual laborers, 

the “distinction between contractor and employee had become so tenuous and 

so difficult to administer that the cases were in a state of almost hopeless 

confusion, and many injustices were apparent.” JOHNSON III, supra § 78. To 

settle the seemingly interminable debate, the Louisiana legislature resolved 

that those who contracted to do manual labor were entitled to benefits, no 

matter what a multifactor test said about their relationship to the principal. 

Id.

Section 1061 addresses a different concern—contractors who lack the 

assets to pay workers’ compensation. To encourage principals to hire solvent 

contractors, the statute offers them a choice. If a principal enters into a 

statutory employment contract, in exchange for assuming workers’

compensation liability, it obtains two benefits: 1) tort immunity from the 

contractor’s employees; and 2) indemnification from the contractor if those 

employees recover workers’ compensation from the principal. See La. Rev. 

Stat. Ann. § 23:1061(B). Not a bad option if you hire a solvent contractor (but 

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if the contractor is insolvent, indemnification won’t help). Or those principals 

can choose to forego immunity if they would rather limit their vulnerability to 

workers’ compensation claims. So, although “[o]rdinarily a principal is not and 

should not be subjected to the compensation claims of his contractor’s 

employees,” statutory employment uses the promise of immunity and 

indemnification to encourage principals to agree otherwise. JOHNSON III, 

supra § 78; see also id. at § 121 (noting that the interposition of a contractor 

between the principal and the contractor’s employees “would not deprive the 

employee of protection so long as the intermediary contractor was solvent or 

protected by insurance”).

This statutory employment law that targets the employment 

relationship we confront, together with the ordinary meaning of 

section 1021(7), tangential but informative guidance from Louisiana’s highest 

court, and the view of a leading authority on Louisiana workers’ compensation

law, trumps a handful of decisions from intermediate state courts, one of which 

has backtracked from its earlier view. The district court’s Erie guess is a solid 

one.8 Section 1021(7) does not obligate a principal to provide workers’ 

compensation to the employees of its independent contractors, so it does not 

afford Harang immunity from this suit.9

 

8 Farm Bureau asked us to certify this question about the manual labor exception to 

the Supreme Court of Louisiana. Because our analysis leads us to conclude that the issue is 

not a close one, we decline that invitation.

9 Farm Bureau contends that our interpretation of the manual labor exception 

threatens to “obliterate” its role within Louisiana’s workers’ compensation regime. But we 

do nothing to displace that statute where its text says it applies—when an independent 

contractor herself is primarily engaged in manual labor. If anything, it is Farm Bureau’s 

reading of the manual labor exception that threatens to displace the role of another statute. 

If employees of independent contractors engaged in manual labor are automatically entitled 

to workers’ compensation from the principal, that would create a large exception to 

section 1061’s usual rule that a principal is liable for such claims only when a statutory 

employment relationship is created by contract. La. Rev. Stat. Ann. § 23:1061(A)(3). And 

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B.

Even if plaintiffs are not covered as Harang’s independent contractors, 

Farm Bureau argues that the workers’ compensation regime still applies for a 

more traditional reason: the plaintiffs were Harang’s employees. It says that 

two different provisions treat the plaintiffs as employees. 

The parties call the first the “presumed employee” provision. It provides

that a “person rendering service for another in any trade[], business[] or 

occupation[] . . . is presumed to be an employee.” La. Rev. Stat. Ann. § 23:1044. 

Farm Bureau does not dispute the general view of Louisiana courts that this 

presumption is overcome when the worker lacks an express or implied

employment agreement with the business. See, e.g., Dustin v. DHCI Home 

Health Servs., Inc., 673 So. 2d 356, 359 (La. App. 1 Cir. 1996). Just as we do 

now, the district court rejected the “presumed employee” argument for 

immunity on that ground because, as we have already explained, plaintiffs did 

not have an express or implied agreement with Harang. They are not 

presumed employees.10

 

Farm Bureau’s view leads to other interpretive problems. As plaintiffs’ counsel noted at oral 

argument, if an independent contractor like Lowry is engaged primarily in the provision of 

manual labor, which of its employees are entitled to benefits from the principal? Only those 

actually engaged in manual labor, or would Harang also be liable to pay workers’ 

compensation to Lowry’s office manager?

Nor does our decision render workers’ compensation unavailable to the employees of 

an independent contractor. As in this case, the direct employer (Lowry) is responsible for 

workers’ compensation. 

10 There is a factual and logical flaw with a more nuanced argument Farm Bureau 

makes under this statute. It contends: 1) that the presumption of employee status is 

overcome if the worker is an independent contractor, see Hillman v. Comm-Care, Inc., 805 

So. 2d 1157, 1161 (La. 2002), but 2) section 1021(7) explicitly includes independent 

contractors engaged primarily in manual labor in Louisiana’s workers’ compensation regime, 

and 3) Jorge-Chavelas and Moreno-Abarca were engaged in manual labor, so 4) they are 

presumed employees. This syllogism falls apart at step two. Section 1021(7) does not bring 

manual laborers back under the presumption. That is because it does not render manual 

laborers employees—it just entitles those independent contractors to workers’ compensation 

from their principal. JOHNSON III, supra § 74. In any event, we have already held that 

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C.

Farm Bureau’s final recourse is to characterize the plaintiffs as Harang’s 

borrowed employees. Louisiana makes borrowing employers (“special 

employers” in civil law lingo) and lending employers (“general employers”) 

liable “jointly and in solido to pay” workers’ compensation for injuries suffered 

by a borrowed employee. La. Rev. Stat. Ann. § 23:1031(C). In exchange for 

that joint liability to pay workers’ compensation, both the special and general 

employer are immune from negligence suits. Id.

The borrowed servant doctrine arises in many areas, with some of its 

deepest roots in maritime law. See Standard Oil v. Anderson, 212 U.S. 215 

(1909). When applying the Louisiana workers’ compensation version, courts

use either a nine- or ten-factor test to determine whether a borrowed 

employment relationship exists. The two tests are essentially identical. 

Compare McGinnis v. Waste Mgmt. of La., L.L.C., 914 So. 2d 612, 616 (La. App. 

2 Cir. 2005) (describing nine-factor test), with Billeaud v. Poledore, 603 So. 2d 

754, 756 (La. App. 1 Cir. 1992) (describing ten-factor test). The district court 

applied the ten-factor test, but under either one and under any standard of 

review11 the result is the same: Jorge-Chavelas and Moreno-Abarca were not 

borrowed employees.

First and foremost, Lowry at all times controlled its planters. See Lastie 

v. Cooper, 167 So. 3d 150, 153 (La. App. 5 Cir. 2014). It chose which planters

 

plaintiffs are not Harang’s independent contractors. They are further removed as the 

employees of Harang’s independent contractor.

11 Farm Bureau contends that we should review the district court’s ruling on this 

question de novo, while the plaintiffs instead believe the proper standard is clear error. They 

are both right. While ultimately the plaintiff’s “borrowed servant status is a legal issue” 

reviewed de novo, the factors considered in making that determination are “factual” and their 

application is reviewed for clear error. Sanchez v. Harbor Const. Co., Inc., 968 So. 2d 783, 

786 (La. App. 4 Cir. 2007); see also Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615, 617 

(5th Cir. 1986) (explaining that a “district court decides the borrowed employee issue as a 

matter of law,” but characterizing the factors as “factual ingredients”).

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went to which farms, planters were required “to work all hours as directed by 

[Lowry] personnel,” and Harang’s owner himself admitted he could not control 

the planters. There was no agreement recognizing a borrowed employment 

relationship, the planters never acquiesced to being borrowed employees, 

Lowry maintained a close relationship with the planters throughout the 

season, only Lowry could fire the planters, and it—not Harang—was obligated 

to pay them. The only factors weighing in favor of a borrowed employment 

relationship—that the planters were doing Harang’s work for which Harang 

provided the tools—do not overcome the number and importance of the factors

weighing against it. We therefore also reject Farm Bureau’s contention that 

Harang was a borrowing employer.

***

Plaintiffs were neither employees of Harang nor its independent 

contractors. Instead, they were employees of Harang’s independent contractor. 

That means Harang enjoys no immunity from suit.

The judgment is AFFIRMED.

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