679 F2d 430 Elliott v. Louisiana Power & Light Company

679 F.2d 430

Duke S. ELLIOTT, Plaintiff-Appellant,

No. 81-3359.

United States Court of Appeals,
Fifth Circuit.

June 28, 1982.

Garner & Munoz, New Orleans, La., for plaintiff-appellant.

Monroe & Lemann, Kenneth P. Carter, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.ON PETITION FOR REHEARING

(Opinion March 31, 1982, 5 Cir., 1982, 671 F.2d 865)

Before RUBIN, SAM D. JOHNSON, and GARWOOD, Circuit Judges.


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In its petition for rehearing, Louisiana Power & Light Company (LP&L) refers this Court to the opinions in the case of Klohn v. Louisiana Power & Light, 406 So.2d 577 (La.1981), 394 So.2d 636 (La.App. 1st Cir. 1980). LP&L argues that Klohn establishes a different test for a statutory employer than the one expressed in Blanchard v. Engine & Gas Compressor Services, Inc., 613 F.2d 65 (5th Cir. 1980). The Klohn approach, according to LP&L, "eliminates the unduly restrictive and inherently fallacious premise of the 'usual and customary practice' test that to be part of one's trade, business or occupation, the activity must regularly recur."


However, nothing in Blanchard or in our prior opinion, 671 F.2d 865 (5th Cir. 1982) (per curiam), requires that the activity regularly recur to be part of the usual or customary practice of the principal or others in the same operational business. While ordinary maintenance and repairs are part of an employer's regular trade, business, or occupation, the usual or customary practice of the principal is not restricted to such maintenance and repairs but embraces every activity that is an integral and necessary part of the principal's regular business.


The Klohn opinions do not address the test for determining whether an activity is part of an employer's regular trade, business, or occupation. As a result, Klohn does not discredit or eliminate the Blanchard test. Klohn implicitly holds that, because plaintiff's work in that particular case involved ordinary maintenance and repairs, his activity was an integral and necessary part of the regular trade, business, or occupation of defendant. In the case sub judice, however, LP&L has failed to negate the possibility of a fact issue regarding the question of whether Brown & Root's work, which entailed conversion of the boiler system, went beyond ordinary maintenance or repair and, therefore, was outside LP&L's usual or customary practice.


Consequently, the district court erred in directing a verdict on the issue of whether LP&L was a statutory employer of plaintiff. See Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). The petition for rehearing is DENIED.