“Two Contract Theory” Results In Dismissal of Wrongful Death Tort Suit

Author: Rob N. Popich

Wrongful Death Tort Garbage TruckThe driver and passenger in a garbage truck were killed in the course of employment when the garbage truck was struck by a train. The passenger was provided as a laborer to the garbage company from a temporary employment agency, which was the direct employer of the passenger. The passenger’s parents filed a wrongful death action against the garbage company and its insurers due to the driver’s negligence. The garbage company filed for summary judgment arguing that it was the passenger’s statutory employer under the “two contract theory” and therefore, workers’ compensation benefits were plaintiff’s exclusive remedy. The district court granted the summary judgment and plaintiffs appealed.

The Court found that because the garbage company entered into a contract with the Parish for whom it was performing services, and then into a second contract with the temporary employment agency for laborers, it met the requirements necessary for the two contract theory. Plaintiffs argued that since the contract between the garbage company and the temporary employment agency did not specifically provide that the laborers would be working in furtherance of that specific Parish contract, the two contract theory defense did not apply. The Court disagreed and found that even though the contract between the garbage company and the temporary employment agency did not specifically provide that the deceased’s duties would be in furtherance of the garbage company’s work for the Parish, the Court sided with the garbage company, and ruled that the two contact theory still applied. Therefore, under Louisiana law and the “two contract theory”, the deceased was a statutory employee of the garbage company and therefore, limited to workers’ compensation benefits.

Dugan v. Waste Management, Inc., 2010 WL 2510142 (La. App. 2 Cir. 6/23/10).