Plaintiff James Fletcher was diagnosed with pleural mesothelioma in 2015. From 1988 until 1997, he worked in a tool trailer at the Exxon refinery in Baton Rouge, Louisiana. During that time, Fletcher was employed by J. E. Merit, a contractor that provided additional workers for Exxon during maintenance activities known as “turn-arounds.” On February 4, 2016, the Civil District Court in Orleans Parish, Louisiana rendered judgment after a trial on the merits that Fletcher was a statutory employee of ExxonMobil. Fletcher appealed a threshold determination decided by the court that he was in fact a statutory employee. The Court of Appeals reviewed the lower court’s determination of statutory employment status under a manifest error standard of review. On January 11, 2017, the Fourth Circuit Court of Appeals affirmed that decision.
In his appeal, Fletcher disputed that he was a statutory employee of Exxon arguing that certain activities performed by J. E. Merit, such as concrete work, demonstrated that J. E. Merit was performing new construction which was outside the scope of what Exxon’s direct employees did. Fletcher cited Lewis v. Exxon, a Louisiana case that analyzed a similar situation. The Lewis decision held that despite the contractor-employee performing work at the time of his injury that the employer’s direct employees were capable of accomplishing, the court must look to the scope of the work being performed by the contractor as a whole when deciding if the contractor-employee was a statutory employee.
The exclusive remedy of an employee against his employer for work-related injuries is set forth in the Louisiana Workers’ Compensation statute, La. R.S. La. R.S. 23:1032. That exclusive remedy also extends to statutory employers. The statute establishes that a statutory employer is a principal who has contracted with others to perform work “which is part of his trade, business, or occupation.” It further reads, “the fact that work is specialized or nonspecialized, is extraordinary construction or simple maintenance, is work that is usually done by contract or by the principal’s direct employee, or is routine or unpredictable, shall not prevent the work undertaken by the principal from being considered part of the principal’s trade, business, or occupation, regardless of whether the principal has the equipment or manpower capable of performing the work.”
In affirming the trial court’s decision, the Appellate Division looked towards the Louisiana Supreme Court decision in Kirkland v. Riverwood Int’l USA, Inc. Kirkland held that to determine whether the contract work is part of the alleged principal’s trade, business, or occupation the court must review, on a case-by-case basis, “all pertinent factors under the totality of the circumstances.” Kirkland listed eight factors to be considered in deciding whether a statutory employment relationship exists. In applying these factors the trial court ultimately determined that the work performed by J. E. Merit was part of Exxon’s trade, business or occupation. The Court of Appeals found that the trial court’s factual conclusions were reasonable and supported by the record. As such, under the manifestly erroneous standard of review, the judgment was affirmed.