
    Frank RACHAL v. AUDUBON PARK COMMISSION, et al.
    No. 88-CA-0643.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 1989.
    Rehearing Denied June 14, 1989.
    Thomas Keasler Foutz, Gauthier, Murphy, Sherman, Chehardy & Ellis, Metairie, Steve Scheckman, New Orleans, for plaintiff.
    Robert E. Peyton, Brady D. King, II, Susan A. Zeringue, Christovich & Kearney, New Orleans, for intervenor-appellant.
    
      Okla Jones, II, City Atty., Don J. Hernandez, Chief Deputy City Atty., A. Bow-dre Banks, Jr., Deputy City Atty., Val K. Scheurich, III, Deputy City Atty., New Orleans, for defendant.
    Before GARRISON, BARRY, LOBRANO, WILLIAMS and PLOTKIN, JJ.
   GARRISON, Judge.

Plaintiff, Frank Rachal, appeals a summary judgment in favor of defendant, the City of New Orleans (the City). He was employed as a laborer by Handiman Industrial Services, which was under contract to provide periodic grounds maintenance for the Audubon Park Commission. While on this assignment in July, 1981, plaintiff was thrown from a truck and sustained serious injury.

Plaintiff filed suit against several defendants, including the Audubon Park Commission and the City. On a motion for summary judgment, the Audubon Park Commission was found to be plaintiff’s statutory employer under LSA-R.S. 23:1061, and the tort action against it was dismissed. This court upheld that ruling in Rachal v. Audubon Park Commission, 467 So.2d 1281 (La.App. 4th Cir.1985). The City subsequently filed a motion for summary judgment on the grounds that it, through the Audubon Park Commission, also was the plaintiff’s statutory employer. The trial court ruled that the Audubon Park Commission is an agency and municipal commission of the City and granted the City’s motion. After considering the pleadings, affidavits and applicable law, we reverse.

The court below relied upon affidavits which alleged that the Audubon Park Commission looked to the City for its employees’ pay, insurance benefits and worker’s compensation benefits. Even if those affidavits are taken as true, the facts alleged in the affidavit do not necessitate a conclusion that the plaintiff is not in a position on a motion for summary judgment to develop other considerations which weigh against such a finding.

Even assuming argendo, that the Commission does have this subsidiary relationship with the City, there still remains the question of whether that “relationship” would extend Audubon’s statutory employer status to the City, although the City obviously cannot independently meet the Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986) test.

Without more, we cannot agree that there is no genuine issue as to a material fact, and that mover is entitled to a judgment as a matter of law.

For these reasons, we reverse the trial court judgment granting the motion for summary judgment filed by the City of New Orleans. This case is remanded to the trial court for trial on the merits.

REVERSED AND REMANDED.

WILLIAMS, J., dissents with reasons.

WILLIAMS, Judge,

dissents with reasons.

I believe that the City’s supporting affidavits show that the Audubon Park Commission is an instrumentality of the City whose employees are actually City employees, and that, for purposes of worker’s compensation, the City acts through the Commission. Leroy J. Aucoin, Assistant Chief Administrative Officer of the City, stated that the City administers and is responsible for worker’s compensation benefits for Audubon Park Commission employees. These benefits are the same as those available to all other City employees and are paid out of the same fund as benefits available to all other City employees. Dale Stastny, Deputy Director of the Audubon Park Commission, stated that all Audubon Park Commission employees except the Director and Deputy Director are classified Civil Service employees of the City. All Audubon Park Commission employees are paid by the City and receive the same health care and life insurance benefits as other City employees. Knowles S. French, Jr., Chief of the Classification and Pay Division of the Civil Service Department of the City, stated that all classified Civil Service Audubon Park Commission employees are actually employees of the City, subject to the same rules and paid in the same manner as all other Civil Service employees of the City.

Thus, the City is the fountainhead of the Audubon Park Commission employees’ pay, insurance benefits and worker’s compensation benefits.

Moreover, the City owns Audubon Park. City of New Orleans v. State of Louisiana, 443 So.2d 562 (La.1983). The Audubon Park Commission, at its inception in 1914, was created for the City and entrusted with management and control of the Park. Id. In his affidavit, Dale Stastny stated that today the Commission is responsible for the park’s care and management. Furthermore, in 1979 the legislature recognized the Audubon Park Commission as an agency of the City when it authorized the City to issue its own negotiable, tax exempt bonds, “acting by and through the Audubon Park Commission,” Id. at 566, for the creation of a zoological garden.

Under the circumstances of this case, I believe that the Audubon Park Commission is merely a subsidiary branch of the City and that the City acting by and through the Audubon Park Commission, does meet the Berry requirements and shares in the Commission’s status of plaintiff’s statutory employer.

Accordingly, I respectfully dissent.  