Cain, et al v. Altec Industries Inc

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 06-30619
FRANCIS AND DORIS CAIN, Individually and on Behalf of their Minor
Child, MATTHEW CAIN
Plaintiffs - Appellants
EMPLOYERS MUTUAL CASUALTY COMPANY
Intervenor Plaintiff - Appellant
VERSUS
ALTEC INDUSTRIES, INC.
Defendant
WASHINGTON - ST. TAMMANY ELECTRIC COOPERATIVE, INC.
Intervenor Defendant - Appellee
Appeals from the United States District Court
For the Eastern District of Louisiana
2:05-CV-03318
Before KING, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*

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2
Plaintiffs, Francis and Doris Cain, individually and on behalf
of their minor child, Matthew Cain, and Plaintiff Intervenor
Employers Mutual Casualty Company (“Employers”), appeal a district
court order granting the motion for summary judgmennt of Defendant
Intervenor Washington St. Tammany Electric Cooperative, Inc.
(“WST”). Because we conclude Mississippi law applies to this
dispute, we REVERSE and REMAND.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Francis Cain (“Cain”), a Mississippi resident, was
employed by Carson Line Service, Inc. (“Carson”), a Mississippi
Corporation. Carson entered into a contract with WST, a Louisiana
corporation, in which Carson agreed to clear rights-of-way for WST.
Pursuant to this agreement, Cain was trimming trees along an
electric power line in St. Tammany Parish, Louisiana when the
aerial bucket being used by Cain came into contact with an
energized power line, causing Cain severe injuries. The electric
power line was owned by WST. Following his injury, Cain received
workers’ compensation benefits under Mississippi’s workers’
compensation law through Carson’s carrier, Employers.
Cain and his wife, individually and on behalf of their minor
child (the “Cains”), brought this suit seeking damages from Altec
Industries, Inc. (“Altec”), the manufacturer of the aerial bucket,
and WST. WST filed a third party claim against Carson for defense
and indemnity. The Cains then dismissed their action against

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1Abraham v. State Farm Mut. Auto. Ins. Co., 465 F.3d 609, 611 (5th Cir. 2006).
2Am. Reliable Ins. Co. v. Navratil, 445 F.3d 402, 404 (5th Cir. 2006).
3Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496 (1941).
3
Altec, leaving WST as the only defendant. Employers subsequently
intervened, asserting its subrogation rights for workers’
compensation benefits paid to Cain.
WST filed a motion for summary judgment claiming tort immunity
based on the statutory employer doctrine in Louisiana’s workers’
compensation law. In response, the Cains and Employers argued that
their case was an “exceptional case,” pursuant to La. Civ. Code
Ann. art. 3547, and thus, the substantive law of Mississippi
governed their claim. The district court rejected this argument
and granted WST’s motion, concluding that Louisiana law applied.
The Cains and Employers timely filed this appeal.
II. Standard of Review
We review a district court’s choice-of-laws determination de
novo.1 We give no deference to the district court’s determination
of state law.2
Federal courts sitting in diversity must apply the choice-of-
laws provisions of the state in which they sit.3 Thus, we must
apply Louisiana’s choice-of-laws principles to determine which
state’s substantive law will apply.
III. Discussion
Prior to conducting a choice-of-laws analysis, we must first

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4See Schneider Nat’l Transport v. Ford Motor Co., 280 F.3d 532, 536 (5th Cir. 2002)
(citations omitted).
5The provision provided that:
The Owner, Washington-St. Tammany Electric Cooperative, Inc., (as principal
employer) and the Contractor (as direct employer) mutually agree that it is their
intention to recognize the Owner as the statutory employer of the employees of the
Contractor while such employees are providing work and/or services to the Owner
under this Agreement/Contract.
6La. Rev. Stat. Ann. § 23:1061(A)(3). Louisiana law provides, in pertinent part:
Except in those instances covered by Paragraph (2) of this Subsection, a statutory
relationship shall not exist between the principal and the contractor’s employees . .
. unless there is a written contract between the principal and a contractor which is
the employee’s immediate employer or his statutory employer, which recognizes
the principal as a statutory employer.
7See La. Rev. Stat. Ann. § 23:1032.
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determine whether the laws of Louisiana and Mississippi conflict.4
If the laws of the states do conflict, only then is it necessary
for us to conduct a conflicts analysis to determine which state’s
law should apply.
A. Is there a conflict of laws?
The contract between Cain and WST contained a provision
specifically recognizing WST as a statutory employer of Carson’s
employees.5
Under Louisiana law, a written contract between a principal
and contractor recognizing the principal as the statutory employer
of the contractor’s employees is valid and enforceable.6 As a
result, under Louisiana law, WST is immune from civil tort
liability.7

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8See Miss. Code Ann. § 71-3-7; Magee v. Transcontinental Gas Pipe Line Corp., 551 So.
2d 182, 184 (Miss. 1989) (owner “may not gain tort immunity by assuming compensation
obligations which in fact and in law it did not have”); Nash v. Damson Oil Corp., 480 So. 2d
1095, 1099 (Miss. 1985) (lessee could not gain tort immunity by voluntarily electing to say it had
compensation obligations which in fact and in law it did not have); Falls v. Mississippi Power &
Light Co., 477 So. 2d 254, 258 & n.3 (Miss. 1985) (permitee not immune from suit even though
in the contract the permitee required the contractor to obtain workers’ compensation).
9See Magee, 551 So. 2d at 184 (owner of right-of-way not statutory employer); see also,
Nash, 480 So. 2d at 1099 (lessee of oil producing unit not statutory employer); Falls, 477 So. 2d
at 258 (permitee not statutory employer).
10See Miss. Code Ann. § 71-3-71.
5
However, unlike Louisiana, Mississippi law does not recognize
and will not enforce any contractual provision seeking to give tort
immunity to a principal who is sued by a contractor’s employees
unless the principal has the legal obligation under the Mississippi
Workers’ Compensation Act (the “Act”) to secure compensation for
that contractor’s employees.8 Under Mississippi law, an owner is
not a statutory employer, and thus, has no obligations under the
Act.9 As a result, since WST was the owner of the electric power
line, it is not a statutory employer of Cain under Mississippi law
and is not immune from liability.10
Accordingly, there is a substantive difference between
Louisiana and Mississippi law necessitating a choice-of-laws
determination.
B. Choice of laws
We will apply Louisiana’s choice-of-laws provisions, found in
Book IV of the Louisiana Civil Code, to resolve the choice-of-laws

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11See La. Civ. Code Ann. art. 3543, comment (a); Duhon v. Union Pacific Resources Co.,
43 F.3d 1011, 1013 (5th Cir. 1995); Carriere v. Chandeleur Energy Corp., 94-40119, 42 F.3d 642
(5th Cir. Dec. 9, 1994) (unpublished opinion); Rigdon v. Pittsburgh Tank & Tower Co., Inc., 682
So. 2d 1303, 1306 (La. App. 1st Cir. 1996).
6
issue in this case.
The issue of whether WST is immune from tort liability is an
issue of loss distribution and financial protection governed by La.
Civ. Code Ann. art. 3544.11 Therefore, we begin our analysis with
article 3544, which provides, in relevant part:
Issues pertaining to loss distribution and financial
protection are governed, as between a person injured by
an offense or quasi-offense and the person who caused the
injury, by the law designated in the following order:
. . . .
(2) If, at the time of the injury, the injured person and
the person who caused the injury were domiciled in
different states: (a) when both the injury and the
conduct that caused it occurred in one of those states,
by the law of that state; . . . .
Under the mechanical rule of article 3544, we would apply
Louisiana law because, at the time of the injury, Cain, a
Mississippi domiciliary, and WST, a Louisiana corporation, were
domiciled in different states, and both the injury and the conduct
that caused it occurred in one of those states, i.e., Louisiana.
Accordingly, based on article 3544, WST would be entitled to the
statutory employer tort immunity afforded it under Louisiana law.
However, article 3547 provides an exception to article 3544 to
be used when the mechanical rule of article 3544 yields an

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12See Comment to La. Civ. Code Ann. art. 3547.
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inappropriate result.12 Under La. Civ. Code Ann. art. 3547, this
exception is applicable when
from the totality of the circumstances of an exceptional
case, it is clearly evident under the principles of
Article 3542, that the policies of another state would be
more seriously impaired if its law were not applied to
the particular issue. In such event, the law of the
other state shall apply.
Article 3547 references article 3542, which gives guidance in
determining how to evaluate which state’s policies would be “most
seriously impaired”:
That state is determined by evaluating the strength and
pertinence of the relevant policies of the involved
states in the light of: (1) the pertinent contacts of
each state to the parties and the events giving rise to
the dispute, including the place of conduct and injury,
the domicile, habitual residence, or place of business of
the parties, and the state in which the relationship, if
any, between the parties centered; and (2) the policies
referred to in Article 3515 [the policies and needs of
interstate systems, the policies of upholding the
justified expectations of the parties, and the policy of
minimizing the adverse consequences that might follow
from subjecting a party to the law of more than one
state], as well as the policies of deterring wrongful
conduct and of repairing the consequences of injurious
acts.
Thus, the precise issue before us is whether this is an
“exceptional case” which warrants the application of article 3547
over article 3544. Our decisions in Duhon v. Union Pacific

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1343 F.3d 1011.
1494-40119, 42 F.3d 642.
15Duhon, 43 F.3d at 1014; Carriere, 94-40119, 42 F.3d 642.
16Although in this case the contract between Carson and WST contained a provision
recognizing WST as a statutory employer of Carson’s employees, and the contract in Duhon and
Carriere did not, we do not find this distinction significant. The Carson/WST contract does not
include a choice-of-law provision and, in the absence of such a provision, the contract between
Carson and WST has no role in our choice-of-law analysis. Compare La. Civ. Code Ann. art.
3540 with La. Civ. Code Ann. art. 3544 and La. Civ. Code Ann. art. 3547.
17In Carriere, we made the following comparison of the interests and policies of Louisiana
and Texas:
Texas' interests are (1) Grey Wolf is incorporated in Texas; (2) the place of
conduct and injury are in Texas; and (3) Texas, we surmise, has an interest in
deterring wrongful conduct and repairing the consequences of injurious acts.
Louisiana's interests-stronger by comparison-are (1) Carriere is domiciled in
Louisiana; (2) Grey Wolf is qualified to do business in Louisiana, and is doing
business in Louisiana; (3) Carriere was working for Grey Wolf pursuant to a
Louisiana contract for hire; (4) Carriere's direct employer, with whom Grey Wolf
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Resources Co.13 and Carriere v. Chandeleur Energy Corp.,14 lead us
to conclude that this is an “exceptional case,” dictating the
application of Mississippi law.
In Carriere and Duhon, we addressed the question of whether
Texas or Louisiana law applied to the statutory employer issue.
Although, based on article 3544, Texas law applied, under the facts
in both cases, we concluded that the matter presented an
“exceptional case” under article 3547, dictating the application of
Louisiana law.15 Finding the facts in this case indistinguishable
from those in Carriere and Duhon,16 and applying the same factors
we considered in Carriere17 and Duhon,18 we conclude that this case

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established the contractual relationship to “hire” Carriere is [authorized to do
business in Louisiana]; (5) Carriere has received workers' compensation benefits
for his injury pursuant to Louisiana law; (6) Louisiana has an interest in protecting
both citizens who are recruited and hired in Louisiana and employers that are
doing business in the state; (7) Louisiana has an interest in protecting foreign
corporations in order to create a friendly business atmosphere in which to promote
commerce and industry; (8) Louisiana has an interest in the consistent and
comprehensive implementation of its workers' compensation laws; and (9) as
articulated by article 3515, the policies and needs of the interstate system, which
includes the expectations of the parties and the minimization of adverse
consequences that might follow from subjecting a party to the law of more than
one state are best served in this dispute by the application of Louisiana law.
94-40119; see Carriere v. Chandeleur Energy Corp., 94-40119 (5th Cir. Jan. 17, 1995)
(correcting earlier statement that Carriere’s direct employer, Chandeleur, was domiciled in
Louisiana).
18In Duhon, we considered the following factors in reaching our conclusion: (1) the
plaintiffs are Louisiana citizens; (2) Duhon was hired in Louisiana by Grey Wolf; (3) suit was filed
in Louisiana; and (4) Duhon received worker’s compensation benefits in accordance with
Louisiana worker’s compensation scheme. Duhon, 43 F.3d at 1014.
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presents an “exceptional case” requiring the application of
Mississippi law over Louisiana law. Louisiana’s interests are: (1)
WST is incorporated in Louisiana; (2) the place of conduct and
injury are in Louisiana; (3) Cain’s direct employer, Carson, was
qualified to do business in Louisiana, and was specifically doing
business under a Louisiana contractor’s number; and (4) Louisiana
has an interest in applying its workers’ compensation laws to
regulate the rights and liabilities of a domestic employer and an
employee injured in its state. On the other hand, Mississippi’s
interests are: (1) Cain is domiciled in Mississippi; (2) WST is
registered to do business in Mississippi as a non-profit Louisiana

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19The work that WST does in Mississippi is minimal compared to the work it performs in
Louisiana. However, WST is listed as an electric company serving Walthall County, Mississippi
on the County’s chamber of commerce website, and WST’s website indicates that it serves, inter
alia, the southern part of Marion County in Mississippi.
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corporation, and is doing business in Mississippi;19 (3) Carson is
incorporated in Mississippi; (4) Cain has received workers’
compensation benefits for his injury pursuant to Mississippi law;
(5) Mississippi has an interest in repairing the consequences of
injurious acts inflicted on its citizens; (6) Mississippi has an
interest in the consistent and comprehensive implementation of its
workers’ compensation laws; and (7) as articulated by article 3515,
the policies and needs of the interstate system, which include the
expectations of the parties and the minimization of adverse
consequences that might follow from subjecting a party to the law
of more than one state are best served in this dispute by the
application of Mississippi law.
In sum, after comparing the policies and interests of both
Louisiana and Mississippi, we conclude the policies of Mississippi
would be more seriously impaired if Louisiana law were applied to
this dispute than would Louisiana’s if Mississippi law were
applied. Consequently, we are convinced that Mississippi law
applies to this dispute and, thus, WST is not immune from suit.
Therefore, the district court erred in granting WST’s motion for
summary judgment based on Louisiana law.

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IV. Conclusion
For the foregoing reasons, we REVERSE the district court’s
order granting WST’s motion for summary judgment and REMAND the
case for further proceedings consistent with this opinion.
REVERSED and REMANDED.

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