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344 So. 2d 410

Docket No. 11213.

Fultz v. McDowell

Clifford FULTZ v. J. Leslie McDOWELL et al.

Louisiana Court of Appeal

Decided March 21, 1977.

Louisiana Court of Appeal · decided 1977-03-21

Cited by 11 later decisions — most recently May 1987

1 federal appellate · 7 state decisions

Key passage — most relied on by later courts

“"Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; ...." (Emphasis added.)”

quoted by 2 later decisions, including Wells v. State Through Dept. of Highways, 432 So. 2d 917 - Barnhill v. American Well Service & Salvage

“"[T]o exclude himself from LSA-R.S. 23:1061, plaintiff argues that he was engaged in `specialized labor' outside the usual business and trade of a general building contractor. However, we note that LSA-R.S. 23:1061 says compensation is due if the work is part of the principal's trade, business or occupation or is work which he had contracted to perform. Defendant had contracted to build the house; the bricklaying was a part of this. Therefore, the fact that plaintiff was engaged in specialized labor outside the usual business or trade of a general building contractor is irrelevant, even if true." (Emphasis added.)”

quoted by 1 later decision, including 432 So. 2d 917 - Barnhill v. American Well Service & Salvage

Relies on 15 La. App. 603 - Horrell v. Gulf & Valley Cotton Oil Co. · 141 So. 2d 852 - Finn v. EMPLOYERS'LIABILITY ASSURANCE CORPORATION · Blanchard v. Employers Liability Assurance Corp.

Good law ✅— No negative treatment on recordhow we know

Decided 1977-03-21

View the full empirical analysis of this case →

¶1*411 Gordon M. White, Baton Rouge, for plaintiff Clifford Fultz, appellant.

¶2David W. Robinson, Baton Rouge, for defendant J. Leslie McDowell, appellee.

¶3Before ELLIS, CHIASSON and PONDER, JJ.

¶4PONDER, Judge.

¶5Plaintiff brought this tort action against defendant, a general contractor, for injuries he received while working for a subcontractor as a brick layer. Plaintiff has appealed from the court's sustaining an exception of no cause of action.

¶6The issue before this court is whether plaintiff's exclusive remedy is in Workmen's Compensation.

¶7We affirm.

¶8Plaintiff was employed to lay bricks on a home being built by defendant as the general contractor. He alleged that faulty and poor construction by the defendant caused a porch to collapse injuring him, and sought damages in tort, for personal injuries, medical expenses and loss of income. Defendant filed an exception of no cause of action, on the ground that plaintiff's sole remedy against him was under the Louisiana Workmen's Compensation Act.

¶9LSA-R.S. 23:1061[1] provides that the remedy granted to an employee of an independent contractor under the Workmen's Compensation Act is exclusive of all other rights and remedies to which he might otherwise *412 be entitled. If the allegations of plaintiff's petition show conclusively that he is covered by the Act, his exclusive remedy is in Workmen's Compensation, and the petition therefore does not state a cause of action in tort. Gifford v. Aurand Manufacturing Company,207 So.2d 160 (La.App. 4th Cir. 1968) writ denied, 252 La. 113, 209 So.2d 41.

¶10An exception of no cause of action will not be sustained unless plaintiff's well pleaded allegations disclose that under no circumstances could he recover. Blanchard v. Employers Liability Assurance Corp.,197 So.2d 386 (La.App. 2nd Cir. 1967). To exclude himself from LSA-R.S. 23:1061, plaintiff argues that he was engaged in "specialized labor" outside the usual business and trade of a general building contractor. However, we note that LSA-R.S. 23:1061 says compensation is due if the work is part of the principal's trade, business or occupation or is work which he had contracted to perform. Defendant had contracted to build the house; the bricklaying was a part of this. Therefore the fact that plaintiff was engaged in specialized labor outside the usual business or trade of a general building contractor is irrelevant, even if true.[2]

¶11The exception of no cause of action was properly maintained; the lower court dismissed the suit. Any amendment plaintiff might make to his pleadings would not change the exclusive nature of the remedy in Workmen's Compensation. Therefore, no opportunity to amend need be afforded.

¶12The judgment of the trial court is affirmed; plaintiff is cast with all costs.

¶13AFFIRMED.

NOTES

¶14[1] LSA-R.S. 23:1061. Principal contractors; liability

¶15Where any person (in this section referred to as principal) undertakes to execute any work, which is part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.

¶16Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

¶17[2] The cases cited by appellant, Horrell v. Gulf & Valley Cotton Oil Co. (Orleans, 1930), 15 La.App. 603, 131 So. 709, and Finn v. Employers' Liability Assurance Corp.,141 So.2d 852 (La.App., 2nd Cir. 1962), both involved principals and not principal, or general, contractors. It is difficult to agree that bricklaying, even though specialized, is not a part of a general contractor's trade or business.

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