IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 91-3787

EDMUND COLLINS HARRIS, Jr., Plaintiff-Appellant,

HIGHLANDS UNDERWRITERS INSURANCE COMPANY, Intervenor-Appellant,

VERSUS

MURPHY OIL, U.S.A., Inc., Defendant-Appellee.

Appeals from the United States District Court for the Eastern District of Louisiana

(December 29, 1992)

Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY,1 District Judge.

JOHN D. RAINEY, District Judge:

Edmond Collins Harris, Jr. ("Harris") appeals an adverse

summary judgment in his personal injury action against Murphy Oil,

U.S.A., Inc. ("Murphy"). Finding no error, we affirm.

I

In March of 1990, Murphy contracted with VIP International

Inc. ("VIP") to provide crews and equipment for a "turnaround." A

"turnaround" is the scheduled maintenance and refurbishing of the

1 District Judge of the Southern District of Texas, sitting by designation. operating units within a refinery. The turnaround involves

vacuuming catalyst out of a reactor, screening the catalyst, and

then reinstalling it. In 1990, VIP performed this procedure on

abouve five catalyst reactors at Murphy's Meraux, Louisiana,

Refinery. VIP also conducted this same turnaround of the catalyst

reactors for Murphy in 1985.

The turnaround maintenance, though predictable, occurs only

every three to five years and is required for the on-going

operation of the refinery. It is undisputed that Murphy's refinery

would not function in an economical and profitable fashion without

periodic refurbishment, and in fact, without the refurbishment,

would eventually completely cease to function.

The 1990 refurbishment was of monumental scale. The Meraux

Refinery generally operated with a staff of approximately 280

personnel. Yet, on May 15, 1990, the day of Harris' injury,

between 400 and 600 individuals were working at the refinery.

Murphy hired VIP to refurbish its operating units, including the

Platformer Unit, because Murphy had neither the equipment nor

enough trained staff for this type of work. Murphy did, however,

provide supervisory personnel to monitor VIP's employees.

On May 15, 1990, Harris slipped and fell in an accumulation of

sludge on the pavement at the refinery while reloading catalyst

into the Platformer Reactor Unit. At the time of Harris' injury,

Murphy employees were directly involved, along with VIP employees,

in the catalyst reloading operation.

Harris filed suit in Louisiana state court, and Murphy timely

removed the suit to federal district court. Murphy then moved for summary judgment against Harris, arguing that it enjoyed statutory

employer status toward Harris and was thus immune from tort

liability. .

The district court agreed, finding that Harris was engaged in

work that was a part of Murphy's trade, business or occupation at

the time of the accident. Accordingly, the district court granted

Murphy's motion for summary judgment.

II

Summary judgment is appropriate if the record discloses "that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." In

reviewing the summary judgment, we apply the same standard as the

district court. See Waltman v. Int'l Co.,

(5th

Cir. 1989) (citation omitted); Moore v. Mississippi Valley State

Univ.,

(5th Cir. 1989) (citations omitted).

The pleadings, depositions, admissions, and answers to

interrogatories, together with affidavits, must demonstrate that no

genuine issue of material fact remains. See Celotex Corp. v.

Catrett,

,

(1986). To that

end, we must "review the facts drawing all inferences most

favorable to the party opposing the motion." Reid v. State Farm

Mut. Auto. Ins. Co.,

(5th Cir. 1986) (citation

omitted). Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no

genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp.,

,

(1986)

3 (citation omitted).

Under the Louisiana Worker's Compensation Act, an employee's

exclusive remedy for injury is worker's compensation benefits; an

employee may not sue his employer or any "principal" in tort. La.

Rev. Stat. section 23:1032 (West 1985). Louisiana's worker's

compensation law makes certain principal contractors potentially

liable for compensation claims from employees of their independent

contractors or subcontractors. Employers' do, however, enjoy

traditional tort immunity for work-related injuries that occur to

their employees.

The La. Rev. Stat. Ann. section 23:1061(A) (West 1985 & Supp.

1992) states when the principal contracts with another to perform

work for him that is a part of "his trade, business, or

occupation," a principal is liable to any employee for any

compensation, pursuant to the Worker's Compensation Law, for which

the principal would have been liable if the employee had been

immediately employed by him. This provision provides employers

with tort immunity for the work-related injuries suffered by the

employees of the employer's contractors and subcontractors.

Prior to January 1, 1990, Louisiana used the three part test

outlined in Berry v. Holston Well Service, Inc.,

(La. 1986), to determine whether a principal was a statutory

employer. The Berry decision marked the Louisiana Supreme Court's

abandonment of the "integral relation" test established in

Thibodaux v. Sun Oil,

,

(1950).

In 1989, however, the Louisiana legislature amended section

4 23:1061(A), adding the following sentence:

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.

The 1989 amendment legislatively revised the Berry test and

effectively directed the courts back to the previously discarded

"integral relation" test found in Thibodaux. See Saavedra v.

Murphy Oil, U.S.A., Inc.,

(5th Cir. 1991);

Savant v. James River Paper Co., Inc.,

(M.D.

La. 1992); Brock v. Chevron Chem. Co.,

,. 781 (E.D.

La. 1990), vacated on other grounds,

(5th Cir. 1991);

Sawyer v. Texaco Ref. & Mktg., Inc., No. 89-2734,

(E.D.La. Feb. 25, 1991). Consequently, the Legislature broadened

the reach of the statutory employment language and dramatically

curtailed the right of a subcontrator's employee to sue a principal

in tort for a work-related injury.

The amendment became effective January 1, 1990. Because the

accident in this case occurred on or about May 15, 1990, the

amendment applies in defining Harris' legal relationship to Murphy.

Accordingly, this Court will consider only whether the injured

party's work, i.e.'s Harris' work, was an integral, related part of

Murphy's "trade, business, or occupation" in determining whether

Murphy has statutory employer status.

At the time of his injury, Harris was performing turnaround

maintenance work on a Platformer Unit at the Murphy refinery. The

5 record shows that regular turnaround maintenance of the Platformer

Unit was part of Murphy's trade, business or occupation as an oil

refinery and was integral to the continued efficient functioning of

the operating units. Without it, the unit would cease to function.

Although all inferences are resolved in Harris' favor on

summary judgment, the record, taken as a whole, does not reveal a

genuine dispute over the material fact that Harris' turnaround

work was part of Murphy's trade, business or occupation.

Consequently, the district court correctly granted summary judgment

in Murphy's favor.

III.

Accordingly, we AFFIRM.

6