Judgment rendered November 18, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,282-CW
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
DOUGLAS BAGWELL Respondent
versus
QUALITY EASEL COMPANY, Applicants INC., AND JAMES E. DUGDALE, JR.
***** On Application for Writs from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 58391
Honorable Bruce Edward Hampton, Judge
NELSON, ZENTNER, SARTOR Quality Easel Company, Inc., By: George Marion Snellings IV and James E. Dugdale, Jr.
WILLIAM KYLE GREEN
TAYLOR, WELLONS, POLITZ, & DUHE, APLC By: Charles J. Duhe, Jr. Paul J. Verlander Lindsay C. Rabalais
COX, COX, FILO, CAMEL Counsel for Respondent, By: Kevin Louis Camel Douglas Bagwell
MORRIS & DEWETT, LLC By: Brandon Trey Morris Justin C. Dewett BIENVENU, BONNECAZE, FOCO Counsel for Intervenor By: Colin P. O’Rourke Respondent, Stonetrust Commercial Insurance Company
GALLOWAY, JOHNSON, TOMPKINS Counsel for Defendant By: Mark E. Seamster Respondent, Atlantic Casualty Insurance Company
Before GARRETT, STONE, and STEPHENS, JJ. STEPHENS, J.
Quality Easel Company, Inc., (“QEC”) and James Dugdale, Jr.,
(collectively, “the Defendants”) sought supervisory review of the denial of
their motion for summary judgment by the Third Judicial District Court,
Lincoln Parish, Louisiana. The Defendants’ motion addressed the issue of
workers’ compensation immunity under La. R.S. 23:1032 as to the personal
injury claims by plaintiff/employee, Douglas Bagwell. Considering the
issue to be decided, we granted the Defendant’s writ application to docket
for further review of the record. For the following reasons, we grant the
Defendants’ writ, make it peremptory, and reverse the trial court’s judgment
denying their motion for summary judgment. The Defendants’ motion for
summary judgment is granted.
FACTS AND PROCEDURAL BACKGROUND
This matter arises from an accident that occurred on September 2,
2015, at the Tremont westbound highway rest area (“the Tremont project”)
off Interstate 20 near Choudrant, Louisiana. Plaintiff Douglas Bagwell, who
had been employed with QEC for several months, was tasked with driving a
truck to transport concrete barriers from the job site to a storage yard.
Dugdale, the sole owner and manager of QEC, was also there and was using
a trackhoe to lift the concrete barriers onto the truck. As Dugdale was
moving one of the barriers, the barrier rolled onto Bagwell and crushed his
legs. Due to injuries sustained in the accident, part of Bagwell’s right leg
ultimately was amputated.1
1 The deposition testimony of some parties shows discrepancy regarding the actual details of the accident, but those discrepancies have no bearing on the issues on review. In an original petition and various amended and supplemental
petitions, Bagwell brought personal injury claims against Dugdale and QEC,
along with insurers Atlantic Casualty Insurance Company and Zurich
American Insurance Company.2 According to Bagwell, at the time of the
accident, Dugdale was working in the course and scope of his employment
with QEC, and Dugdale’s negligence in operating the equipment caused his
injuries. Bagwell also claimed that Dugdale was negligent for improperly
modifying the trackhoe he was operating, and this modification created a
dangerous defect that was a contributing cause of the accident. Bagwell
alleged QEC was vicariously liable for Dugdale’s negligence, and QEC was
additionally liable for failing to properly train and supervise its employees,
to implement appropriate safety procedures, and to comply with industry
standards.
In response, the Defendants filed a motion for summary judgment. In
that motion, the Defendants maintain that workers’ compensation laws
barred Bagwell’s tort claims because at the time of the accident, both
Bagwell and Dugdale were payroll employees of Chad Pody Construction
Company (“CPCC”), the company which was serving as a subcontractor for
the prime contractor for the Tremont project. 3 Defendants rely on Bazley v.
Tortorich, 397 So. 2d 475 (La. 1981), for the proposition that a worker who
negligently injures one of his coworkers is protected from tort liability
2 The claims against Zurich ultimately were dismissed pursuant to its motion for summary judgment. 3 Although styled as a motion for summary judgment, the Defendants’ pleading actually only sought partial summary judgment on the issue of workers’ compensation immunity as to the claim that Dugdale was liable for acting negligently in moving the barrier and the claim that QEC was vicariously liable for Dugdale’s actions. The motion did not address Bagwell’s other claims against Dugdale and QEC (i.e., the modification of the trackhoe which allegedly created a dangerous defect in the equipment). 2 pursuant to the workers’ compensation exclusive remedy statute. Included
in these filings were affidavits of the involved parties as well as transcripts
of depositions given by Bagwell, Dugdale, and CPCC owners Chad Pody
and Angela Pody. The Defendants’ motion noted that Bagwell was
receiving workers’ compensation benefits (indemnity and medical benefits)
from CPCC’s workers’ compensation insurer.
Bagwell filed an opposition and two supplemental oppositions to the
Defendants’ motion. Deposition transcripts of other QEC employees hired
by CPCC as payroll employees for the Tremont project were provided
during the pendency of the motion. Bagwell also filed a cross-motion for
summary judgment, which was ultimately denied by the trial court but is not
under review.
After a series of delays for additional discovery and depositions, the
parties appeared on March 14, 2019, for oral arguments on the motions, and
the trial court took the matter under advisement.4 In written reasons for
judgment, the trial court concluded a genuine issue of material fact remained
regarding the employment status of Dugdale, QEC, and Bagwell. Although
concerned that Bagwell denied employment with CPCC but admitted
receiving workers’ compensation benefits, the trial court determined this fact
did not establish that Bagwell was, in fact, a payroll employee of CPCC.
After considering the definition of “employee” in Black’s Law Dictionary
and the criteria cited in jurisprudence to determine whether someone was an
independent contractor or an employee, the trial court concluded the
4 Post-hearing, Bagwell sought to introduce an affidavit by a former QEC employee named Charles Ray Jenkins, but the Defendants filed a motion to strike the affidavit as untimely filed. At a hearing on April 11, 2019, the motion to strike was granted. 3 Defendants were not entitled to summary judgment on the issue of tort
immunity under the workers’ compensation law, La. R.S. 23:1032. The trial
court concluded a determination that Dugdale was employed by CPCC
required a credibility determination which would be improper on a motion
for summary judgment. A written judgment followed on August 22, 2019,
and the Defendants’ application for supervisory review of the ruling
followed. Considering the issues involved, we granted the writ to docket for
further review.
DISCUSSION
Motion for Summary Judgment
A motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of the relief prayed
for by a litigant. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So. 3d 1002.
The procedure is favored and shall be construed to secure the just, speedy,
and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).
The Code of Civil Procedure places the burden of proof on the party
filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). The
mover can meet this burden by filing supporting documentary evidence
consisting of pleadings, affidavits, depositions, answers to interrogatories,
certified medical records, stipulations, and admissions with the motion for
summary judgment. La. C.C.P. art. 966(A)(4); Bank of Am., N.A. v. Green,
52,044 (La. App. 2 Cir. 5/23/18), 249 So. 3d 219; Chanler v. Jamestown Ins.
Co., 51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied, 2017-
01251 (La. 10/27/17), 228 So. 3d 1230. Procedurally, therefore, the court’s
first task is to determine whether the moving party’s motion, memorandum,
affidavits, and supporting documents are sufficient to resolve all material 4 factual issues. Smith v. Our Lady of the Lake Hosp., Inc., 1993-2512 (La.
7/5/94), 639 So. 2d 730.
If we determine that the moving party has met this onerous burden,
the burden then shifts to “the adverse party to produce factual support
sufficient to establish the existence of a genuine issue of material fact or that
the mover is not entitled to judgment as a matter of law.” La. C.C.P. art.
966(D)(1). “At that point, the party who bears the burden of persuasion at
trial . . . must come forth with evidence (affidavits or discovery responses)
which demonstrates he or she will be able to meet the burden at trial.”
Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So. 2d 880, 883.
In ruling on a motion for summary judgment, the judge’s role is not to
evaluate the weight of the evidence or to determine the truth of the matter,
but instead to determine whether there is a genuine issue of triable fact. A
genuine issue is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need for a
trial on that issue and summary judgment is appropriate. Maggio v. Parker,
2017-1112 (La. 6/27/18), 250 So. 3d 874. A “genuine issue” is a triable
issue, an issue on which reasonable persons could disagree. Champagne v.
Ward, 2003-3211 (La. 1/19/05), 893 So.2d 773; Bloxham v. HDI-Gerling
Am. Ins. Co., 52,177 (La. App. 2 Cir. 6/27/18), 251 So. 3d 601.
In deciding a motion for summary judgment, the court must assume
that all of the affiants are credible. Tatum v. Shroff, 49,518 (La. App. 2 Cir.
11/19/14), 153 So. 3d 561. The trial court cannot make credibility calls on a
motion for summary judgment, but must draw those inferences from the
undisputed facts which are most favorable to the party opposing the motion.
Bloxham v. HDI-Gerling Am. Ins. Co., supra. 5 A motion for summary judgment is reviewed on appeal de novo, with
the appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate, i.e., whether
there is any genuine issue of material fact, and whether the movant is
entitled to judgment as a matter of law. Maggio, supra.
Dugdale’s Employment Status
In their motion for summary judgment, the Defendants argued that
because Bagwell and Dugdale were co-employees both working in the
course and scope of their employment at the time of the accident, Bagwell’s
exclusive remedy for an unintentional tortious act was the workers’
compensation benefits Bagwell was already receiving from CPCC.
Specifically, as a result of Dugdale’s employment status with CPCC,
Defendants argued that under La. R.S. 23:1032, Bagwell was precluded
from suing his co-employee, Dugdale, for an unintentional tort based upon
the injuries he sustained in the work-related accident. Louisiana R.S.
23:1032, in pertinent part, provides that workers’ compensation is the
exclusive remedy granted to an employee for a work-related injury caused
by a nonintentional act and is exclusive of all claims that might arise against
a co-employee or the employer.
On the other hand, Bagwell argues the trial court properly denied
Defendants’ summary judgment motion because genuine issues of material
fact remained on the determinative issue of whether Dugdale proved he was
a payroll employee of CPCC and not QEC at the time of the accident. We
disagree. Here, the Defendants’ provided indisputable documentary
evidence of Dugdale’s employment by CPCC, and Bagwell failed to produce
sufficient factual support in his opposition proving the existence of a 6 genuine issue of material fact. Thus, art. 966(D)(1) mandates the granting of
the Defendants’ motion for summary judgment.
In order for the Defendants’ motion for summary judgment to be
granted, their burden is to prove their affirmative defense: employer
immunity to Bagwell’s personal injury claim due to Dugdale’s employment
with CPCC. Here, although Bagwell argues there is a genuine issue of
material fact regarding the employment status of Dugdale, the Defendants
provided credible and concrete evidence that Dugdale was employed by
CPCC on the date of the accident, making him Bagwell’s coworker.
Further, Bagwell fails to offer credible or concrete evidence that Dugdale
was not CPCC’s employee. In fact, despite minor and explained
inconsistencies in the CPCC payroll records, the overwhelming testimony
and evidence supports the Defendant’s assertion that Dugdale was indeed
employed by CPCC on the date of Bagwell’s accident, thus affording
Dugdale the immunity provided under the workers’ compensation statute.
In support of the Defendants’ argument, they offer Dugdale’s affidavit
and deposition testimony, in which he asserted he and Bagwell were
working as payroll employees for CPCC at the time of the accident. Of most
significance, Dugdale provided copies of the paycheck stubs (reflecting a
pay period for “08/28/2015-09/03/2015” and a pay date of September 4,
2015) and the Internal Revenue Service 2015 W-2 tax forms that CPCC
issued for both men, confirming that the men were paid wages by CPCC for
the subject date of the accident. Dugdale’s paycheck stub listed him as a
“supervisor” working 22 hours during the period for gross earnings of $660.
There were even “taxes” withheld from Dugdale’s check for “Federal
Withholding,” “Social Security Employee,” “Medicare Employee,” and 7 Louisiana “withholding.” Dugdale’s W-2 reflects these same amounts, and
notably Chad Pody and Angela Pody, co-owners of CPCC, corroborated
these facts in their deposition testimony. We believe this to be conclusive
proof that Dugdale was indeed an employee of CPCC at the time of
Bagwell’s accident.
Not only do the Defendants provide documentary proof which
substantiates Dugdale’s employment with CPCC, they offer additional
evidence via affidavits and deposition testimony in support of their
affirmative defense. The deposition testimony of Dugdale as well as Chad
and Angela Pody provide explanations confirming the employment
relationships between Dugdale, his QEC employees, and CPCC; these stem
from Dugdale’s issues with his own workers’ compensation coverage as
well as the regulations regarding CPCC’s Disadvantaged Business Entity
(“DBE”) designation.
Regarding Dugdale’s workers’ compensation coverage, he testified
that because his workers’ compensation coverage had lapsed, no one was
working for QEC at the time of the accident because he had no workers’
compensation coverage. Thus, his QEC crew members worked the Tremont
project as direct payroll employees with CPCC and were covered under its
workers’ compensation insurance.5 In fact, Bagwell’s employment with
CPCC at the time of his accident actually worked to Dugdale’s benefit in
that the workers’ compensation claims were covered under CPCC’s
workers’ compensation insurance and not Dugdale’s.
5 Dugdale acknowledged that as owner of QEC, he had executed a waiver of workers’ compensation coverage as to any act or omission committed by himself while working for QEC, pursuant to La. R.S. 23:1035. 8 As to CPCC’s DBE status, Angela Pody testified she was a Native
American Indian, and since she was a co-owner of CPCC, the business was
state-qualified as a DBE. This designation made CPCC eligible for specific
state contracts such as the Tremont project, but was conditional on CPCC
using only its payroll employees to staff all required labor, instead of hiring
independent subcontractors. Angela stated that the Tremont project was a
state government renovation project, and the westbound rest area renovation
project was awarded to J.B. James Construction (“J.B. James”) as the prime
contractor. In turn, J.B. James hired CPCC as a DBE subcontractor to
perform specific tasks such as clearing trees, constructing sidewalks, and
removing concrete barriers. She noted the eastbound rest area renovation
project was awarded to a different prime contractor and although CPCC bid
that job as well, CPCC was not selected as a DBE subcontractor.
Although Dugdale, Chad Pody, and Angela Pody all acknowledged
CPCC would sometimes subcontract crews such as QEC to perform certain
tasks on a construction project, they all insisted that was not the arrangement
for the Tremont project because CPCC was a DBE for that project and was
required to use only payroll employees and not subcontractors for all labor.
Chad Pody testified that when he was precluded from subcontracting a crew,
he would fulfill the DBE requirement by putting workers on his payroll as
temporary payroll employees for as many weeks the job required. This
confirmed Dugdale’s testimony that he had told his QEC crew members they
would be working for CPCC for the Tremont project.
Chad also testified that while he would sometimes rent a piece of
equipment and the operator would be included as part of the rental price, that
was not the situation for the Tremont project. Chad stated his lease of 9 equipment from QEC on the Tremont project did not include an equipment
operator.6 Angela corroborated her husband’s testimony that because CPCC
was a DBE for the Tremont project, all labor, including equipment
operators, had to be payroll employees. Significantly, the equipment lease
identified by Bagwell does not make any mention of the inclusion of an
operator for the equipment.
Bagwell attempted to cast doubt on the Defendants’ evidence of
Dugdale’s employee status through the affidavit of Anna Theriot, an analyst
with PC Recovery Digital Forensics, Inc. Theriot was hired by Bagwell to
perform a forensic examination of the CPCC record system, and she averred
in her affidavit that Dugdale and Bagwell had been added as CPCC payroll
employees after the accident. Additionally, she noted Dugdale’s payroll
check for the pay period initially noted he was being paid for work on the
eastbound project area, but on September 28, 2015, someone changed the
description to the westbound project area. However, Angela testified in her
deposition it was not uncommon for employees to be added to the payroll
system after the work was done and as she was preparing the payroll. She
also testified she simply made a typographical error by initially listing on
Dugdale’s payroll information the eastbound project area (a project they had
not even been awarded and were not working on), and when she noticed the
error, she corrected it to state the westbound project area.
On review, Bagwell maintains the trial court properly denied the
Defendants’ motion for summary judgment because Dugdale’s employment
6 In brief, Bagwell refers to a “lease invoice” for the equipment provided by QEC to CPCC; notably, the document referred to, although untitled, appears to be simply an invoice as there are no other terms stated other than the price of the equipment. 10 status with CPCC is a fact in dispute, arguing several reasons support his
assertion. Primarily, he argues the Podys deposition testimony is self-
serving. However, our review of the record shows those reasons asserted by
Bagwell to be questionable and with no actual, factual, or evidentiary
support. In contrast, the documentary evidence produced by the Defendants
regarding Dugdale’s employment is conclusive. The record contains
unmistakable proof of Dugdale’s employment: a payroll check stub and an
IRS W-2, both covering a period of time containing the accident date.
Additionally, computer records produced (the Payroll Detail Review) reflect
that Dugdale was employed by CPCC and also confirm the amount paid on
the payroll check stub and reported on the W-2.
Furthermore, Chad and Angela Pody’s deposition testimony, which
Bagwell characterizes as “self-serving,” works to support the documentary
evidence of Dugdale’s employment with CPCC. In addition to stating
unequivocally that Dugdale worked for CPCC on September 2, 2015, the
Podys identified the payroll records of their company. Whereas Bagwell
characterizes their testimony as “self-serving” and argues it should be
discounted because it calls for a credibility assessment, the Podys’
statements readily verify the documentary evidence that was presented by
the Defendants. No credibility assessment is necessary; the parties simply
articulated what the documentary evidence reflects. Additionally (and of
particular significance), both Chad and Angela explained that CPCC, as a
DBE subcontractor to J.B. James, was required to directly employ all of the
labor on the Tremont project; thus, Dugdale was required to be an actual
employee of CPCC. Moreover, the minor inconsistencies in testimony
pointed to by Bagwell do not refute the indisputable documentary evidence 11 and deposition testimony that Dugdale was indeed employed by CPCC for
the Tremont project on the day of Bagwell’s injury.
Here, the documentary evidence, along with the testimony elicited
from Dugdale, as well as Chad and Angela, establishes that Dugdale was
indeed an employee of CPCC at the time of the accident, thus providing the
basis for immunity under La. R.S. 23:1032 for Bagwell’s personal injury
claim. Innuendo and baseless accusations that a genuine issue of material
fact exists are insufficient to create such an issue. It is quite clear from the
evidence presented by the Defendants on their motion that Dugdale was
employed by CPCC at the time of the accident. Any small inconsistencies
that have been identified are insufficient and there is no real doubt as to the
existence of a genuine issue of material fact—Bagwell fails to provide
ascertainable proof that a general issue of material fact exists. Thus, the trial
court’s denial of the Defendants’ motion for summary judgment was in error
and should be reversed.
CONCLUSION
For the foregoing reasons, we grant the writ filed by Quality Easel
Company, Inc., and James E. Dugdale and make it peremptory. The trial
court’s judgment denying their motion for summary judgment is reversed,
and the motion for summary judgment by Quality Easel Company, Inc., and
James E. Dugdale is granted. Douglas Bagwell’s claims against them
addressed by their motion are dismissed with prejudice. All costs of this
proceeding are assessed to Bagwell.
WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT REVERSED; AND MOTION FOR SUMMARY JUDGMENT GRANTED.