Overcoming the statutory employer defense in Louisiana is difficult if not impossible in many cases. In Louisiana, the statutory employer doctrine, at La. Rev. Stat. Ann. § 23:1061, provides that, when any principal undertakes to executed any work which is part of his trade, business, or occupation, and also contracts with any person for the execution by or under the contractor of the whole or any part of the work, then the principal, as statutory employer, shall be granted the exclusive remedy protections of the LWCA—i.e. a plaintiff may not bring suit against a statutory employer because the statutory employer is protected by the workers’ compensation scheme.
La. Rev. Stat. Ann. § 23:1061(A)(1)-(3) provide two distinct tests for establishing statutory employer status:
A. (2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer.
Many courts refer to these tests as the “two contract” test. See, e.g., Daigle v. McGee Backhoe & Dozer Serv., 16 SO.3d 4, 7 (La. App. 5 Cir. 2009).
In 2013, a set of plaintiffs were able to circumvent this usually unassailable defense in Cameron Parish, and subsequently on appeal to the Third Circuit Court of Appeal. In Maya, et al. v. Priola, et al., the plaintiffs worked for a subcontractor in the construction of a bank. Priola was the general contractor. On September 15, 2009, the plaintiffs and other workers were attempting to raise an over 1,000 pound wall that fell and killed one plaintiff and injured another. The plaintiffs brought suit in Cameron Parish, Louisiana. Priola raised the statutory employer defense because it has included a statutory employer provision in its agreement with the subcontractor. Ultimately, Priola moved for summary judgment as to all of the plaintiffs’ claims.
The plaintiffs argued: (1) Priola was not entitled to the statutory employer defense because it had not provided competent evidence that there was indeed a contract between Priola and the subcontractor; and (2) there was a fact question as to intentional tort, which precluded summary judgment. Specifically, the plaintiffs challenged whether the agreement between Priola and the subcontractor had been timely signed by the subcontractor. Additionally, the plaintiffs argued that Priola would have been substantially certain that the plaintiffs would have suffered injury given the weather conditions and some testimony elicited by Priola’s foreman. The Trial Court denied Priola’s motion for summary judgment holding “there to be genuine issues of material fact.”
Priola immediately pursued a writ application in attempt to reverse the Trial Court. Ultimately, the plaintiff prevailed in the Appellate Court, demonstrating that the statutory employer defense is vulnerable in some regards.