(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-5064
Summary Calendar
__________________
BEVERLY MARIE FRUGE,
Plaintiff-Appellant,
versus
CITGO PETROLEUM CORP., ET AL.,
Defendants,
CITGO PETROLEUM CORP.,
Defendant-Appellee.
______________________________________________
Appeal from the United States District Court for the
Western District of Louisiana
91 1510 LC
______________________________________________
(June 4, 1993)
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.*
GARWOOD, Circuit Judge:
In this Louisiana law diversity case, plaintiff-appellant,
Beverly Marie Fruge (Fruge), appeals the district court's summary
judgment in favor of defendant-appellee, Citgo Petroleum Company

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(Citgo), on the grounds that Citgo was Fruge's statutory employer
and therefore immune from tort liability. Because we agree with
the district court that the summary judgment record establishes,
without material factual dispute, that Citgo was Fruge's statutory
employer, we affirm.
Facts and Proceedings Below
Citgo hired ARA Services, Inc. (ARA) to operate a twenty-four
hour cafeteria at its Westlake petrochemical refinery in Lake
Charles, Louisiana. Citgo needed an on site cafeteria to feed the
2000 or so employees that work at the plant at any given time and
to comply with a union contract that required the company to
provide a free meal to an employee each time that employee worked
overtime. Employees pay for all of their own meals at the
cafeteria except for the overtime meals provided by Citgo. Over
the thirty-three years that the cafeteria had been in operation,
Citgo never operated the cafeteria itself and had no employees in
Lake Charles capable of doing that kind of work.
Pursuant to the contract, Citgo owned and maintained all of
the capital equipment used in the cafeteria. ARA provided its own
employees, non-capital supplies, and operated the cafeteria. ARA
was allowed to sell its food products to anyone who walked in off
the street, though its primary customers were Citgo employees and
the employees of contractors working at the Citgo plant.
Fruge worked for ARA as a side-order grill cook at the Citgo
cafeteria. On April 10, 1990, Fruge was electrically shocked and
seriously injured while using a deep-fat fryer owned by Citgo.
Fruge sued Citgo alleging that the deep-fat fryer was

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negligently maintained and that Citgo, as the owner of the deep-fat
fryer, was liable for her injuries. The district court granted
Citgo's motion for summary judgment dismissing Fruge's claim on the
grounds that Citgo was her statutory employer and therefore immune
from liability for negligence under the Louisiana Worker's
Compensation Act. Fruge appeals.
Discussion
"Under the Louisiana Worker's Compensation Act, a `principal'
who engages a contractor to perform work that is `a part' of the
principal's 'trade business, or occupation' is liable to pay
worker's compensation benefits to the contractor's employees. LSA-
R.S. 23:1061. Principals who fall within 23:1061 (known as
`statutory employers') enjoy immunity from tort actions brought by
their statutory employees for work-related injuries [that do not
involve intentional torts]. LSA-R.S. 23:1032." Becker v. Chevron
Chemical Co., 983 F.2d 44, 45 (5th Cir. 1993).
The issue in this case is whether Citgo is immune from tort
liability to Fruge because it qualifies as her statutory employer.
The test for determining whether one is a statutory employer has
recently been changed in Louisiana. La. Rev. Stat. Ann. §§ 23:1032
and 23:1061 (West Supp. 1993). Beginning in the 1950's Louisiana
applied the integral relation test which liberally granted tort
immunity. Thibodaux v. Sun Oil Co., 49 So.2d 852 (1950). In the
1980's the Louisiana Supreme Court retreated from the expansive
integral relation test, finally imposing a somewhat narrow
definition of "statutory employer" in Berry v. Holston Well
Service, Inc., 488 So.2d 934 (La. 1986). Disagreeing with this

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1 Fruge contends that the integral relation test does not
apply because the Louisiana Legislature amended the wrong statute
SQ23:1061 in lieu of 23:1032. We explicitly rejected this theory
in Becker, where we said: "In applying tort immunity to
statutory employers, courts have always read the two provisions
together, and we will continue to do so. We doubt that the
Legislature intended to create two definitions of statutory
employer." 983 F.2d at 46 (footnotes omitted).
4
narrowing of the statutory employer concept, the Louisiana
Legislature amended section 23:1061 intending to overrule Berry and
reinstate the more expansive integral relation test. La. Rev.
State. Ann. § 23:1061 (West Supp. 1993).
The language of the 1989 amendments does not expressly state
that the integral relation test applies to determine whether one is
a statutory employer. Fruge contends that the district court erred
in applying the integral relation test instead of a modified Berry
test and that under a modified Berry type test, Citgo would not
qualify for immunity as a statutory employer.
We agree with the district court that the 1989 amendments
reinstate the integral relation test as interpreted by the
Louisiana courts prior to Berry. Although no Louisiana courts have
held that the integral relation test applies, we have. In Becker,
983 F.2d at 44; Salsbury v. Hood Industries, Inc., 982 F.2d 912
(5th Cir. 1993); and Harris v. Murphy Oil, U.S.A., Inc., 980 F.2d
991, 992 (5th Cir. 1992), we held that the 1989 amendment to
23:1061 repealed all three parts of the Berry test and reinstated
the integral relation test.1 See Pierce v. Hobart Corp., 939 F.2d
1305 (5th Cir. 1991). In addressing the retroactivity of the 1989
amendments, several Louisiana courts of appeal have suggested in
dicta that the integral relation test was reinstated by the 1989

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amendments. Carter v. Chevron Chem. Co., 593 So.2d 942, 945-46
(La. App. 4th Cir. 1992); Hutchins v. Hill, 609 So.2d 312, 315 (La.
App. 3rd Cir. 1992). There is no need, therefore, to certify this
question to the Louisiana Supreme Court.
"Under the integral relation test, a statutory employer
relationship exists when the contract work is an integral part of
the trade, business, or occupation of the principal." Becker, 983
F.2d at 46. "`The test for determining whether an activity is part
of an employer's trade or business . . . is whether the particular
activity is essential to the business. The fact that the employer
or the industry as a whole always contracts out the activity is not
controlling." Salsbury, 982 F.2d at 917 (quoting Arnold v. Shell
Oil Co., 419 F.2d 43, 50 (5th Cir. 1969)). Thus, it is not
controlling that a contractor does not have its own employees
available to perform the work, as long as the work performed by the
subcontractor is an integral part of the contractor's trade,
business or occupation.
Before Berry, several Louisiana cases with similar facts held
that food service operations were an integral part of a business
which was not itself in the food service business. Foster v.
Western Electric Co., 258 So.2d 153 (La. App. 2d Cir. 1972)
(Western Electric not liable in tort for injury to subcontractor's
cafeteria worker because it is statutory employer; plant operated
twenty-four hours a day with 2400 employees); Hankins v. Woman's
Hosp., 517 So.2d 217 (La. App. 1st Cir. 1987) (hospital not liable
in tort for injury to subcontractor's cafeteria worker because it
is statutory employer). See also Henderson v. Administrators of

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2 In returning to the integral relation test, we do not imply
that all of the pre-Berry decisions will necessarily apply under
the new standard. Salsbury, 982 F.2d at 916 & n.7 (the new
amendments could be more expansive in finding statutory employer
status than old decisions applying the integral relations test).
See also id. at 917 n.8. We rely on the cases cited in the text
because they involve closely analogous facts, we find their
reasoning instructive, and we have no contrary guidance from
Louisiana courts on how to apply the integral relation test under
the 1989 amendments.
6
Tulane Univ., 426 So.2d 291 (La. App. 4th Cir. 1983) (Tulane not
liable in tort to cafeteria worker).2
We therefore agree with the district court that the cafeteria
operations were indisputably an integral part of Citgo's business.
Citgo operated a large plant with over 2000 people on site twenty-
four hours a day. Citgo needed to have food available for its
employees at odd hours since the plant was open twenty-four hours
a day and because of its union contracts. The cafeteria especially
served the needs of employees with short lunch breaks who did not
have time to take lunch elsewhere. The fact that no Citgo employee
worked in the food service business does not suffice to create a
fact issue on statutory employer status. Nothing suggests that if
Citgo had been unable to find a contractor to run the cafeteria, it
would not have hired its own employees to do so. This plant
contained a cafeteria for at least thirty-three years. Under the
circumstances, Citgo is Fruge's statutory employer.
Conclusion
We hold that because Citgo is Fruge's statutory employer,
Citgo is immune from liability from any negligence on its part that
caused Fruge's injury. Fruge's sole remedy is workers'
compensation benefits. Accordingly, the judgment of the district

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court is
Affirmed.

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