Babineaux v. M & W Tank Const Co ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31287
JOSEPH CURLEY BABINEAUX, Etc., Et Al.,
Plaintiffs,
JOSEPH CURLEY BABINEAUX, Individually
& on behalf of Bradley Babineaux on
behalf of Brandon Babineaux on behalf
of Billy Babineaux on behalf of David
Babineaux,
Plaintiff-Appellant,
v.
M & W TANK CONSTRUCTION CO, INC.; ET AL.,
Defendants,
M & W TANK CONSTRUCTION CO., INC.,
Defendant-Appellee.
_______________________________
Appeal from the United States District Court
for the Western District of Louisiana
(98-CV-1209)
_______________________________
November 2, 1999
Before GARWOOD, SMITH and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Joseph Curley Babineaux (“Babineaux”) appeals from
the determination of the district court denying remand and
granting summary judgment to appellee M&W Tank Construction, Inc.
*
Pursuant to 5th Cir. Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th
Cir. Rule 47.5.4.
(“M&W”) for the reason that Babineaux had failed to raise a
genuine issue of material fact sufficient to establish the
intentional tort exception to the Louisiana Worker’s Compensation
Act, La. R.S. 23:1032. For the reasons stated by the district
court in its memorandum ruling of September 10, 1998, we agree
that Babineaux cannot recover against M&W. See also Reeves v.
Structural Preservation Sys., 731 So. 2d 208, 212 (La. 1999).
Denial of remand and granting summary judgment were therefore
proper.
Appellee M-I Drilling Fluids, LLC. (“M-I”) intervened to
argue that Babineaux is covered by the Longshore and Harbor
Workers’ Compensation Act, and that it provides his exclusive
remedy against his employer. We observe, however, that the
district court neither considered nor issued a judgment in these
matters. Inasmuch as we consider this case under a Federal Rule
of Civil Procedure 54(b) certification of a final order for
immediate appeal, we have no jurisdiction to consider M-I’s
claims because, obviously, the district court certified no final
judgment with respect to these issues.
AFFIRMED
2