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United States: Mother of Deceased Temporary Worker May Not Maintain Wrongful Death Action Against Borrowing Employer

November 08, 2018 (1 min read)

Construing Louisiana law, and applying the ten-factor test established by the Fifth Circuit Court of Appeals in U.S. Fire Ins. Co. v. Miller, 381 F.3d 385, 388 (5th Cir. 2004), a federal district court found that a worker assigned to the defendant’s pipe manufacturing plant in New Orleans by a temporary staffing agency was the borrowed employee of the defendant and, accordingly, a wrongful death action filed against the defendant by the worker’s mother following the worker’s work-related accidental death was barred by the exclusive remedy provisions of the Louisiana Workers’ Compensation Act. The district court found that nine of the ten factors weighed in favor of finding the deceased worker was a borrowed employee of the defendant at the time of the accident. The court noted that while all ten factors were to be considered in making the determination of employee status, the borrowing firm’s right to control the worker was typically the most important. Here, it was undisputed that the defendant pipe manufacturer supervised and controlled the day-to-day work activities of the deceased worker.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Davis v. Forterra Pipe & Precast, LLC, 2018 U.S. Dist. LEXIS 188796 (E.D. La. Nov. 5, 2018)

See generally Larson’s Workers’ Compensation Law, § 100.01.

Source:Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law