Bova v. Butler

168 So. 3d 551, 2014 La.App. 1 Cir. 0765, 2014 La. App. LEXIS 3049, 2014 WL 7277658
CourtLouisiana Court of Appeal
DecidedDecember 23, 2014
DocketNo. 2014 CA 0765
StatusPublished
Cited by2 cases

This text of 168 So. 3d 551 (Bova v. Butler) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bova v. Butler, 168 So. 3d 551, 2014 La.App. 1 Cir. 0765, 2014 La. App. LEXIS 3049, 2014 WL 7277658 (La. Ct. App. 2014).

Opinion

THERIOT, J.

lain this suit arising from an automobile accident, the plaintiff appeals a judgment dismissing his respondent superior claims against the tortfeasor’s employer. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from a September 19, 2011 automobile collision which occurred when Jason Butler made a left turn into the path of an oncoming vehicle. Brian Bova, a guest passenger in the vehicle involved in the collision with Mr. Butler, filed a petition for damages against Mr. Butler for injuries sustained in the accident. Mr. Bova later amended his petition to assert claims against Mr. Butler’s employer, SPX Cooling Technologies, Inc. (“SPX”), alleging that at the time of the accident, Mr. Butler was acting in the course and scope of his employment with SPX. At the time of the accident, Mr. Butler was traveling from home and had [553]*553not yet arrived at work. Mr. Bova alleged that SPX was vicariously liable for Mr. Butler’s negligence because SPX was compensating Mr. Butler for his travel time from his home in Brookhaven, Mississippi to his worksite in Geismar, Louisiana.

A bench trial was held on January 14, 2014, at which the only remaining claims were the claims against SPX.1 The parties stipulated at trial that the accident was caused by the fault of Mr. Butler. There were no allegations of negligence against SPX; the claims against SPX were based strictly on vicarious liability as Mr. Butler’s employer. The trial court held that Mr. Bova failed to carry his burden of proving that Mr. Butler was in the course and scope of his employment with SPX at the time of the accident Land dismissed Mr. B ova’s claims against SPX with prejudice. Mr. Bova timely filed this appeal.

DISCUSSION

Under Louisiana law, an employer is answerable for the damage occasioned by its servant in the exercise of the functions in which the servant is employed. Timmons v. Silman, 99-3264, p. 4 (La.5/16/00), 761 So.2d 507, 510; La. C.C. art. 2320. Specifically, an employer is liable for its employee’s torts if, at the time, the employee was acting within the course and scope of his employment. Id.; Baumeister v. Plunkett, 95-2270, p. 3 (La.5/21/96), 673 So.2d 994, 996. An employee is acting within the course and scope of his employment when his action is “of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.” Timmons, 99-3264 at p. 4, 761 So.2d at 510 (quoting Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 2260227).

Generally, courts consider four factors when assessing vicarious liability, including whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during working hours; and (4) occurred on the employer’s premises. Holt v. Torino, 12-1579, p. 5 (La.App. 1st Cir.4/26/13), 117 So.3d 182, 185, writ denied, 13-1161 (La.8/30/13), 120 So.3d 267. It is not necessary that each factor be present in each case, and each case must be decided on its own merits. The determinative question is whether the employee’s tortious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated |4by purely personal considerations entirely extraneous to the employer’s interest. Id.

Each case, then, requires a factual analysis individual in nature, and prior cases serve merely as illustrations of analogous situations and not as hard-and-fast rules. There are, however, some generally-accepted jurisprudential principles followed by appellate courts. For instance, courts have fairly consistently held that going to and from work is not an employment function for which the employer’ should be held liable. Holt, 12-1579, p. 6, 117 So.3d at p. 186. However, exceptions may apply when the employer provides, or pays the employee for, transportation to and from work, or when the operation of the vehicle was incidental to some employment responsibility. White v. Frederick, 44,563, p. 9 (La.App. 2 Cir. 8/19/09), 17 So.3d 1016, 1021-22, writ denied, 2009-2059 (La.11/25/09), 22 So.3d 168.

In the instant case, Mr. Bova argues that SPX was providing payment for Mr. [554]*554Butler’s transportation to and from work in the form of a per diem, and therefore, Mr. Butler was in the course and scope of his employment while driving from his home to work. SPX acknowledges that Mr. Butler received a per diem, but asserts that the per diem was only for lodging and meals, and that Mr. Butler was not reimbursed for his mileage or paid for his travel time. Therefore, he did not fall under the exception to the general rule that an employee is not in the course and scope of his employment while driving to and from work. The trial court found that the evidence at trial did not support Mr. Bova’s assertion that Mr. Butler was reimbursed for his transportation expenses and concluded that Mr. Butler was not in the course and scope of his employment at the time of the accident.

15A trial court’s determination that an act is or is not within the course and scope of employment for purposes of vicarious liability is a factual finding governed by the manifest error rule. Baumeister, 95-2270, at p. 7, 673 So.2d at 998; see also Ermert v. Hartford Ins. Co., 559 So.2d 467 (La.1990) (finding course and scope to be a mixed question of law and fact held to the manifest error standard).

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Under the manifest error-clearly wrong standard, this court employs a two-part test for the reversal of a factfinder’s determinations. Stobart v. State Through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). First, this court must find from the record that a reasonable factual basis does not exist for the finding of the trial court. Id. Second, this court must determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Id. This test requires this court to review the record in its entirety to determine manifest error. Id. This court’s determination is not whether the factfinder was correct, but whether the factfinder’s conclusion was reasonable. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.

At the time of the accident, Mr. Butler was a member of an SPX work crew, made up primarily of Mississippi residents, which was assigned to a job at the West-lake Vinyl Plant in Geismar, Louisiana. SPX provided the crew members with a per diem so that they could stay near the worksite on the days they worked. According to the company’s per diem policy, a field 1 ^employee will receive per diem pay when he is temporarily assigned to a duty locale in excess of 75 miles from his residence2 and stays overnight.

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Bluebook (online)
168 So. 3d 551, 2014 La.App. 1 Cir. 0765, 2014 La. App. LEXIS 3049, 2014 WL 7277658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bova-v-butler-lactapp-2014.