Derouen v. Quintana Petroleum (U.S.), Inc. , 1995 La. LEXIS 2402 ( 1995 )

PER CURIAM.¹

Writ granted. The trial court erred in granting summary judgment for defendant Quintana Petroleum Corporation (USA), Inc. based on its application of La.R.S. 23:1061 and the statutory employer defense when the court had not yet resolved the constitutional attack on the statute raised in Plaintiffs’ First Amended Petition for Damages. La. C.C.P. art. 966(B) states in pertinent part:

The [summary] judgment sought shall be rendered forthwith if 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 material fact, and that mover is entitled to judgment as a matter of law. (emphasis added).

As the question of the constitutionality and legality of La.R.S. 23:1061 is pending before the trial court by virtue of plaintiffs’ amended petition, summary judgment “as a matter of law” is premature.

Accordingly, the writ application is granted. The judgment granting defendant’s motion for summary judgment is reversed and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

1 . Victory, J. not on panel. Rule IV, Part 2, § 3.