In Re: S LA Sugars ( 2007 )

United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS
for the Fifth Circuit FILED
April 20, 2007
Charles R. Fulbruge III
No. 06-30492 Clerk
In Re: In the Matter of: SOUTH LOUISIANA SUGARS COOPERATIVE INC,
as Owner/Operator of the 1937 155' Dock Barge for Exoneration
From or Limitation of Liability
------------------
SOUTH LOUISIANA SUGARS COOPERATIVE INC, as Owner/Operator of the
1937 155' Dock Barge,
Third Party Plaintiff - Appellant,
VERSUS
AUDUBON INSURANCE GROUP,
Third Party Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.
DeMOSS, Circuit Judge:
This is an action in which the Appellant, South Louisiana
Sugars Cooperative, Inc. (“SLSC”), sought coverage from the
Appellee, Audubon Insurance Group (“Audubon”), under a commercial
general liability policy after SLSC was sued for personal injuries
by a third party. Audubon asserts two exclusions within the policy
apply to deny all coverage. The district court granted summary
judgment in favor of Audubon, and SLSC now appeals. For the
1
following reasons, we VACATE the decision of the district court and
remand for further proceedings.
I. Factual and Procedural History
The facts of this case are not disputed. Trevor Barnes, an
employee of Acadia Labor Services ("Acadia"), was injured while
aboard a dock barge owned by SLSC. Barnes sued SLSC, and SLSC filed
a limitation action and a third-party complaint against Audubon.
SLSC claimed that Audubon's commercial general liability policy
provided coverage for Barnes' personal injury claims. Audubon
denied any obligation by asserting that either the "employee"
exclusion and/or the "watercraft" exclusion applied to Barnes'
claims.
Both parties moved for summary judgment. The court granted
Audubon's motion based on the employee exclusion after determining
that Barnes was a “leased worker” and therefore an employee of SLSC
as defined by the policy. The court did not discuss whether the
watercraft exclusion would have alternatively served as adequate
grounds for summary judgment.
SLSC moved for reconsideration and additionally presented new
evidence in the form of an affidavit that would have supported an
alternate theory that Barnes was a "temporary worker" and not a
"leased worker" under the policy. The court denied the motion for
reconsideration and refused to consider the new affidavit because
SLSC did not provide any explanation for not previously producing
the new evidence.
2
SLSC now appeals both the grant of Audubon's motion for
summary judgment and the denial of SLSC's motion for
reconsideration. On appeal, Audubon argues that the watercraft
exclusion could serve as alternate grounds for affirming the
district court.
II. Discussion
A. Standard of Review
A district court's grant of summary judgment is reviewed de
novo. Consumers County Mut. Ins. Co. v. P.W. Trucking & Sons, 307
F.3d 362, 365 (5th Cir. 2002). Summary judgment is proper when the
“pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show 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.” FED. R. CIV. P. 56(c).
B. The Employee Exclusion
The insurance policy excludes coverage for bodily injuries to
employees. The term "employee" is defined to include a "leased
worker." The policy defines "leased worker" as:
"Leased worker" means a person leased to you by a labor
leasing firm under an agreement between you and the labor
leasing firm, to perform duties related to the conduct of
your business. "Leased worker" does not include
"temporary worker."1
1
“Temporary worker” is defined as a person who is furnished
3
The following evidence was submitted to the court through
affidavits and is not disputed by the parties:
(1) Acadia and SLSC had a verbal agreement under which
Acadia agreed to supply labor workers to SLSC to provide
stevedoring services;
(2) As a condition of the verbal agreement between SLSC
and Acadia, Acadia was required to provide general
liability coverage for at least $1,000,000 and maintain
workers’ compensation insurance on its employees;
(3) Acadia decided which employees went to work for SLSC
and also provided an on-site supervisor to oversee its
employees at SLSC's facilities;
(4) Acadia submitted weekly invoices to SLSC;
(5) Barnes was employed by Acadia at the time of the
accident;
(6) Acadia retained all rights to hire or fire Barnes,
paid Barnes’ salary, and maintained workers’ compensation
insurance for Barnes; and
(7) Pursuant to the policy issued to Acadia, Louisiana
Workers Compensation paid benefits to Barnes in
connection with his injuries sustained at SLSC’s
facilities.
to SLSC either (1) as a substitute for a permanent employee, or (2)
to meet seasonal or short-term workload conditions.
4
Based on this evidence alone, the district court determined
Acadia to be a labor leasing firm and Barnes to be a leased worker
pursuant to the oral agreement between Acadia and SLSC. We are
unconvinced that this evidence, without further development, is
sufficient to establish as a matter of law that Barnes is a leased
worker as defined by the policy. Therefore we remand this issue to
the district court for further proceedings.
C. The Watercraft Exclusion
The district court did not address whether, in the
alternative, coverage for Barnes’ injuries are excluded under the
policy’s watercraft exclusion.2 We decline to address the
applicability of this exclusion at this time in light of the fact
that the Louisiana Supreme Court has granted certiorari to
determine if the language of this watercraft exclusion is
ambiguous. See Henry v. S. La. Sugars Coop., Inc., 940 So. 2d 688
(La. Ct. App. 2006), rev. granted by 948 So. 2d 183 (La. Feb. 2,
2007). Therefore, on remand, the district court should take into
consideration the ruling of the Louisiana Supreme Court when
determining the applicability of this exclusion to the case at
2
This provision excluded coverage for bodily injury arising out
of the use or operation of any watercraft owned by SLSC. There
was an exception to the application of this exclusion, however, if
the watercraft is “ashore on premises” owned by SLSC. The parties
dispute whether the dock barge moored next to SLSC’s facility is
“ashore on premises” owned by SLSC.
5
hand.
III. Conclusion
For the foregoing reasons we VACATE the order of the district
court granting summary judgment in favor of Audubon and REMAND for
further proceedings.
6