STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-150
DUSTIN WILLIAM BOWDOIN
VERSUS
WHC MAINTENANCE SERVICES, INC., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20145420 HONORABLE DAVID M. SMITH, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Robert E. Kerrigan, Jr. Raymond Lewis Deutsch, Kerrigan, & Stiles & Stiles 755 Magazine Street New Orleans, LA 70130 (504) 581-5141 COUNSEL FOR DEFENDANT/APPELLANT: AIG Specialty Insurance Company Edwin G. Preis, Jr. M. Benjamin Alexander Preis PLC Post Office Drawer 94-C Lafayette, LA 70509 (337) 237-6062 COUNSEL FOR DEFENDANTS/APPELLANTS: Zurich American Insurance Company WHC Maintenance Services, Inc. WHC, LLC
Louis C. LaCour, Jr. Adams and Reese, LLP 4500 One Shell Square New Orleans, LA 70139 (504) 585-0328 COUNSEL FOR DEFENDANT/APPELLANT: AIG Specialty Insurance Company
Chad E. Mudd David P. Bruchhaus M. Keith Prudhomme Matthew P. Keating Mudd & Bruchhaus, LLC 410 E. College Street Lake Charles, LA 70605 (337) 562-2327 COUNSEL FOR PLAINTIFF/APPELLEE: Dustin William Bowdoin SAUNDERS, Judge.
This is a case involving a motor vehicle accident in which Plaintiff sustained
serious injuries. Plaintiff, who resides in Louisiana, was recruited by a pipeline
employee to work with him at a pipeline construction and maintenance company
performing work in Florida. As agreed, the employee picked Plaintiff up in
Louisiana to transport him to the job location in Orlando, Florida. Prior to arriving
in Orlando, the employee’s personal vehicle in which they were traveling, broke
down twice. Plaintiff attempted to assist the employee in towing the inoperable
vehicle by steering it as the employee pulled it with a company vehicle and towing
assembly. Ultimately, the employee accelerated to 55 miles per hour, which
caused Plaintiff to lose control of the inoperable vehicle, and the vehicle flipped.
As a result, Plaintiff sustained severe injuries resulting in paraplegia.
Following the accident, Plaintiff sued the employee’s employer and its
insurers claiming that the employee was in the course and scope of his employment
at the time of the accident which rendered his employer vicariously liable for
Plaintiff’s injuries. The employer and its insurers filed a motion for summary
judgment alleging that employer’s employee was not in the course and scope of
employment at the time of the accident. In response, Plaintiff filed a motion for
summary judgment that the employee was in the couse and scope of his
employment at the time of the accident. The trial court granted Plaintiff’s motion
and denied the employer and its insurers’ motion. The employer and its insurers
have appealed.
FACTS AND PROCEDUREAL HISTORY:
Plaintiff, Dustin William Bowdoin (“Bowdoin”), was recruited by Devin
Badon (“Badon”), an employee of WHC Maintenance Services, Inc. (“WHC”).
WHC is a large pipeline construction and maintenance company based in Louisiana which performs work on gas pipelines throughout the country. At the
time, WHC was performing projects at multiple locations throughout the state of
Florida (the “Florida projects”), and was experiencing a labor shortage.
While working on the Florida projects, Badon was employed by WHC as a
temporary laborer with an hourly wage. WHC paid crewmembers a per diem for
their travel and lodging expenses, as travel and effectively relocating are critical
components of the work of pipeline construction for workers like Badon, who are
required to move from project to project. The project for which Bowdoin had been
recruited was scheduled to begin on Tuesday, May 27, 2014.
On Friday, May 23 2014, Badon, having completed work on a project in
Perry, Florida, left his camper trailer he had previously towed there for the purpose
of staying at campsites near the various WHC job locations, and drove to
Louisiana where he picked up Bowdoin. Badon’s intent was to get back from
Louisiana to the Perry, Florida campsite, retrieve his camper, and relocate it to the
Orlando job location so that he and Bowdoin would be staged and ready to work
on the date the project was scheduled to begin. En route back to Florida, Badon’s
vehicle broke down twice. The first time, Roy O’Quinn (“O’Quinn”), a WHC
labor foreman whose responsibilities included making sure WHC employees made
it to the next job site, came to Badon’s aid in a WHC company vehicle, and, using
a WHC towing assembly, towed Badon’s vehicle to an auto parts store so that he
could have it repaired. When Badon’s efforts to repair the vehicle failed, O’Quinn
towed Badon’s vehicle to the Perry campsite. Badon and Bowdoin then rode back
to Orlando, Florida, with O’Quinn. The following day, Saturday, May 24, 2014,
on which Badon and the entire WHC crew was being paid a per diem, WHC
Foreman Chris Aguillard (“Aguillard”) loaned Badon his WHC company vehicle
and towing assembly for the purpose of retrieving Badon’s vehicle and camper 2 from the Perry campsite and relocating it to the Orlando job location. Bowdoin
assisted Badon by attempting to steer Badon’s inoperable vehicle as Badon towed
it. When Badon accelerated to 55 miles per hour, Bowdoin lost control of the
inoperable vehicle, and it flipped. As a result, Bowdoin sustained severe injuries
resulting in paraplegia.
Bowdoin filed suit against WHC, Zurich American Insurance Company, and
AIG Specialty Insurance Company (collectively “Defendants”) alleging, inter alia,
that Badon was in the course and scope of his employment with WHC, and, as
such, WHC was vicariously liable unto him for Badon’s actions. Defendants filed
a motion for summary judgment asserting that Badon was not acting within the
course and scope of his employment with WHC at the time of the accident.
Bowdoin filed an opposition to that motion and a cross motion for summary
judgment asserting that Badon was within the course and scope of his employment
with WHC at the time of the accident.
The trial court denied Defendant’s motion and granted Bowdoin’s motion
finding that Badon was within the course and scope of his employment with WHC
at the time of the accident. Defendants filed this appeal asserting two assignments
of error.
ASSIGNMENTS OF ERROR:
1. The District Court improperly granted summary judgment in Plaintiff’s favor despite the existence of evidence squarely contradicting the factual allegations relied upon by Plaintiff in support of his argument that Devin Badon was within the course and scope of his employment with WHC at the time of the accident, thereby establishing genuine issues of disputed fact and precluding the availability of summary judgment in Plaintiff’s favor.
2. The District Court improperly denied summary judgment in Defendants’ favor when the disputed facts relied on by Plaintiff are immaterial to the question of course and scope, and the undisputed material facts established that Devin Badon was outside the course and scope of his employment with WHC at the time of the accident. 3 ASSIGNMENT OF ERROR NUMBER ONE:
Defendants assert that the trial court erred in granting Bowdoin’s motion for
summary judgment, due to existing evidence that contradicts Bowdoin’s alleged
undisputed material facts, precluding the availability of summary judgment in
Bowdoin’s favor.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-150
DUSTIN WILLIAM BOWDOIN
VERSUS
WHC MAINTENANCE SERVICES, INC., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20145420 HONORABLE DAVID M. SMITH, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Robert E. Kerrigan, Jr. Raymond Lewis Deutsch, Kerrigan, & Stiles & Stiles 755 Magazine Street New Orleans, LA 70130 (504) 581-5141 COUNSEL FOR DEFENDANT/APPELLANT: AIG Specialty Insurance Company Edwin G. Preis, Jr. M. Benjamin Alexander Preis PLC Post Office Drawer 94-C Lafayette, LA 70509 (337) 237-6062 COUNSEL FOR DEFENDANTS/APPELLANTS: Zurich American Insurance Company WHC Maintenance Services, Inc. WHC, LLC
Louis C. LaCour, Jr. Adams and Reese, LLP 4500 One Shell Square New Orleans, LA 70139 (504) 585-0328 COUNSEL FOR DEFENDANT/APPELLANT: AIG Specialty Insurance Company
Chad E. Mudd David P. Bruchhaus M. Keith Prudhomme Matthew P. Keating Mudd & Bruchhaus, LLC 410 E. College Street Lake Charles, LA 70605 (337) 562-2327 COUNSEL FOR PLAINTIFF/APPELLEE: Dustin William Bowdoin SAUNDERS, Judge.
This is a case involving a motor vehicle accident in which Plaintiff sustained
serious injuries. Plaintiff, who resides in Louisiana, was recruited by a pipeline
employee to work with him at a pipeline construction and maintenance company
performing work in Florida. As agreed, the employee picked Plaintiff up in
Louisiana to transport him to the job location in Orlando, Florida. Prior to arriving
in Orlando, the employee’s personal vehicle in which they were traveling, broke
down twice. Plaintiff attempted to assist the employee in towing the inoperable
vehicle by steering it as the employee pulled it with a company vehicle and towing
assembly. Ultimately, the employee accelerated to 55 miles per hour, which
caused Plaintiff to lose control of the inoperable vehicle, and the vehicle flipped.
As a result, Plaintiff sustained severe injuries resulting in paraplegia.
Following the accident, Plaintiff sued the employee’s employer and its
insurers claiming that the employee was in the course and scope of his employment
at the time of the accident which rendered his employer vicariously liable for
Plaintiff’s injuries. The employer and its insurers filed a motion for summary
judgment alleging that employer’s employee was not in the course and scope of
employment at the time of the accident. In response, Plaintiff filed a motion for
summary judgment that the employee was in the couse and scope of his
employment at the time of the accident. The trial court granted Plaintiff’s motion
and denied the employer and its insurers’ motion. The employer and its insurers
have appealed.
FACTS AND PROCEDUREAL HISTORY:
Plaintiff, Dustin William Bowdoin (“Bowdoin”), was recruited by Devin
Badon (“Badon”), an employee of WHC Maintenance Services, Inc. (“WHC”).
WHC is a large pipeline construction and maintenance company based in Louisiana which performs work on gas pipelines throughout the country. At the
time, WHC was performing projects at multiple locations throughout the state of
Florida (the “Florida projects”), and was experiencing a labor shortage.
While working on the Florida projects, Badon was employed by WHC as a
temporary laborer with an hourly wage. WHC paid crewmembers a per diem for
their travel and lodging expenses, as travel and effectively relocating are critical
components of the work of pipeline construction for workers like Badon, who are
required to move from project to project. The project for which Bowdoin had been
recruited was scheduled to begin on Tuesday, May 27, 2014.
On Friday, May 23 2014, Badon, having completed work on a project in
Perry, Florida, left his camper trailer he had previously towed there for the purpose
of staying at campsites near the various WHC job locations, and drove to
Louisiana where he picked up Bowdoin. Badon’s intent was to get back from
Louisiana to the Perry, Florida campsite, retrieve his camper, and relocate it to the
Orlando job location so that he and Bowdoin would be staged and ready to work
on the date the project was scheduled to begin. En route back to Florida, Badon’s
vehicle broke down twice. The first time, Roy O’Quinn (“O’Quinn”), a WHC
labor foreman whose responsibilities included making sure WHC employees made
it to the next job site, came to Badon’s aid in a WHC company vehicle, and, using
a WHC towing assembly, towed Badon’s vehicle to an auto parts store so that he
could have it repaired. When Badon’s efforts to repair the vehicle failed, O’Quinn
towed Badon’s vehicle to the Perry campsite. Badon and Bowdoin then rode back
to Orlando, Florida, with O’Quinn. The following day, Saturday, May 24, 2014,
on which Badon and the entire WHC crew was being paid a per diem, WHC
Foreman Chris Aguillard (“Aguillard”) loaned Badon his WHC company vehicle
and towing assembly for the purpose of retrieving Badon’s vehicle and camper 2 from the Perry campsite and relocating it to the Orlando job location. Bowdoin
assisted Badon by attempting to steer Badon’s inoperable vehicle as Badon towed
it. When Badon accelerated to 55 miles per hour, Bowdoin lost control of the
inoperable vehicle, and it flipped. As a result, Bowdoin sustained severe injuries
resulting in paraplegia.
Bowdoin filed suit against WHC, Zurich American Insurance Company, and
AIG Specialty Insurance Company (collectively “Defendants”) alleging, inter alia,
that Badon was in the course and scope of his employment with WHC, and, as
such, WHC was vicariously liable unto him for Badon’s actions. Defendants filed
a motion for summary judgment asserting that Badon was not acting within the
course and scope of his employment with WHC at the time of the accident.
Bowdoin filed an opposition to that motion and a cross motion for summary
judgment asserting that Badon was within the course and scope of his employment
with WHC at the time of the accident.
The trial court denied Defendant’s motion and granted Bowdoin’s motion
finding that Badon was within the course and scope of his employment with WHC
at the time of the accident. Defendants filed this appeal asserting two assignments
of error.
ASSIGNMENTS OF ERROR:
1. The District Court improperly granted summary judgment in Plaintiff’s favor despite the existence of evidence squarely contradicting the factual allegations relied upon by Plaintiff in support of his argument that Devin Badon was within the course and scope of his employment with WHC at the time of the accident, thereby establishing genuine issues of disputed fact and precluding the availability of summary judgment in Plaintiff’s favor.
2. The District Court improperly denied summary judgment in Defendants’ favor when the disputed facts relied on by Plaintiff are immaterial to the question of course and scope, and the undisputed material facts established that Devin Badon was outside the course and scope of his employment with WHC at the time of the accident. 3 ASSIGNMENT OF ERROR NUMBER ONE:
Defendants assert that the trial court erred in granting Bowdoin’s motion for
summary judgment, due to existing evidence that contradicts Bowdoin’s alleged
undisputed material facts, precluding the availability of summary judgment in
Bowdoin’s favor. We find merit to this assertion.
Appellate courts review summary judgments de novo, under the same
criteria that govern the trial court’s determination of whether summary judgment is
appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544.
In order to prevail on a motion for summary judgment, the moving party
must show that “there [is] no genuine issues of material fact and that he is entitled
to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3). “A fact is
‘material’ when its existence or nonexistence may be essential to [the] plaintiff's
cause of action.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.
7/5/94), 639 So.2d 730, 751. “A genuine issue of material fact is one as to which
reasonable persons could disagree; if reasonable persons could reach only one
conclusion, there is no need for trial on that issue and summary judgment is
appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12), 94 So.3d
750, 755 (superseded by statute on other grounds).
When considering a motion for summary judgment, the court cannot
“consider the merits, make credibility determinations, evaluate testimony[,] or
weigh evidence.” Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10),
31 So.3d 1012, 1014 (quoting Suire v. Lafayette City–Parish Consol. Gov’t, 04-
1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48). Moreover, although “summary
judgments are now favored, factual inferences reasonably drawn from the evidence
must be construed in favor of the party opposing the motion, and all doubt must be
4 resolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La. 12/8/00),
775 So.2d 1049, 1050.
[A]n employer is answerable for the damage occasioned by its servants in the exercise of the functions in which the servant is employed. Specifically, an employer is liable for its employee’s torts committed if, at the time, the employee was acting within the course and scope of his employment. An employee is acting within the course and scope of his employment when the employee’s 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.” An employee may be within the course and scope of his employment yet step out of that realm while engaging in a personal mission.
Timmons v. Silman, 99-3264, p. 4 (La. 5/16/00), 761 So.2d 507, 510 (citations
omitted). Courts are to consider four factors when assessing vicarious liability set
forth in LeBrane v. Lewis, 292 So.2d 216 (La.1974), and summarized by the
supreme court in Edmond v. Pathfinder Energy Services, Inc., 11-151 (La.App. 3
Cir. 9/21/11), 73 So.3d 424, writ denied, 11-2234 (La.12/16/11), 76 So.3d 1204.
They are whether the tortious act: (1) was primarily employment rooted; (2) was
reasonably incidental to the performance of the employee’s duties; (3) occurred on
the employer’s premises; and (4) occurred during the hours of employment.
Edmond, 73 So.3d at 426.
It is not necessary that each factor be present in each case, however each
must be weighed on its own merits. Lemaire v. Richard, 13-581 (La.App. 3 Cir.
11/6/13), 125 So.3d 558. The determinative question is whether “the tortious
conduct . . . was so closely connected [in] time, place, and causation to his
employment-duties as to be regarded a risk of harm fairly attributable to the
employer’s business, as compared with conduct motivated by purely personal
considerations entirely extraneous to the employer’s interests.” LeBrane, 292
So.2d at 218.
5 In the case before us, Defendants aver that Bowdoin’s motion for summary
judgment was improperly granted because it relied upon disputed facts. After
reviewing the record, we find that there is conflicting testimony as to whether
Badon was directed by WHC to travel to Louisiana to retrieve Bowdoin for work
on the next WHC project. Badon testified that he was directed to do so while this
testimony was contradicted by the testimonies of WHC employees, Rusty Smith
and Chris Aguillard. In order to grant a summary judgment, as the trial court did
in this case, one would have to give credence to Badon’s testimony regarding
whether he was directed to retrieve Bowdoin by WHC over that of Smith and
Aguillard. Such a finding requires a credibility determination made to evaluate or
weigh testimony which is impermissible when considering the merits of a motion
for summary judgment.
On its own, an impermissible weighing of evidence does not defeat
summary judgment. The fact impermissibly weighed must be a material fact.
Whether WHC directed Badon to retrieve Bowdoin is material because it shows
the extent of control, if any, WHC was exerting over Badon in his endeavor to
bring Bowdoin to Florida to work for it. This is certainly material as it is a factor
to consider when contemplating whether Badon was in the course and scope of his
employment with WHC when the accident occurred.
Moreover, there is conflicting testimony as to why Badon was being paid on
the day of the accident. According to Badon’s testimony, he was being paid wages
and per diem in pursuit of his mission to deliver Bowdoin to the jobsite. Badon’s
statement taken after the accident contradicts this testimony wherein he stated that
he was getting paid that day despite no construction ongoing in order to correct an
accounting error with the crew’s per diem from previous days of work. Badon’s
previous statement is corroborated by the testimony of other WHC employees who 6 also stated that the entire crew was being paid wages and per diem that day in
order to make up for an accounting error in the paychecks the entire crew had been
receiving. Thus, in order to consider it a fact that Badon was being paid on the day
of the accident to specifically retrieve Bowdoin for WHC would require
impermissible weighing of evidence. This fact is also material because it shows
whether Badon’s accident occurred while he was on the clock, which is a factor in
the temporal element present in a course and scope analysis.
Given the above, we cannot say that there is no genuine issue of material
fact as to whether Badon was in the course and scope of his employment with
WHC when the accident occurred that injured Bowdoin. Accordingly, summary
judgment was not proper in this case at this time, and we reverse the trial court’s
grant of Bowdoin’s motion.
ASSIGNMENT OF ERROR NUMBER TWO:
Defendants assert that the trial court incorrectly denied their motion for
summary judgment that Badon was not in the course and scope of his employment
with WHC when the accident occurred because the disputed facts relied on by
Bowdoin to defeat their motion are immaterial to course and scope analysis in this
case. We find no merit to this assertion.
As stated in assignment of error number one,
appellate courts review summary judgments de novo, under the same criteria that
govern the trial court’s determination of whether summary judgment is
appropriate. Duncan, 950 So.2d 544. In order to prevail on a motion
for summary judgment, the moving party must show that “there [is] no genuine
issues of material fact and that he is entitled to judgment as a matter of
law.” La.Code Civ.P. art. 966(A)(3)
7 For consideration of this motion for summary judgment, while Defendants
are the movant, they do not have the burden of proof on the issue at trial.
Therefore, they need only establish that Bowdoin lacked support for one or more
elements required to establish his claim. La.Code Civ.P. art. 966(D)(1). If WHC
satisfies its burden on the motion, Bowdoin must “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.” Id. Otherwise, Bowdoin’s
opposition fails.
Defendants’ argument is that even if you take all the facts alleged by
Bowdoin as true, Badon was still not within the course and scope of his
employment with WHC when the accident happened. According to Defendants,
Bowdoin’s course and scope claim relies on the purpose of Badon’s mission being
to bring Bowdoin from Louisiana to Florida and Badon had completed that mission
the night before the accident occurred. We do not find this argument convincing.
If we are to take all the facts alleged by Bowdoin as true, a reasonable
person could conclude that Badon was in the course and scope of his employment
with WHC at the time of the accident. Bowdoin alleges that Badon’s mission was
to get him to the jobsite and have him staged and ready for work the next week.
According to Bowdoin, Badon having his camper at the campsite was necessary in
order for Badon to complete that mission.
Moreover, according to Badon, WHC’s supervising employees gave him
permission to use the company’s vehicle and towing equipment to get his camper
from the Perry campsite to the Orlando campsite for WHC’s benefit. Thus, while
there is conflicting evidence on this issue, if we are to take Badon’s testimony as
true, it would be reasonable to find that Badon’s mission to get his camper from
the Perry campsite to the Orlando campsite was within the course and scope of his 8 employment given evidence in the record that that use of campers at the campsites
was necessary and their use benefitted WCH. Additionally, given that Bowdoin
had not yet been staged and ready for work at the campsite, it would also be
reasonable to find that Badon had not accomplished his mission allegedly given to
him by WHC. Thus, Defendants’ argument regarding the fact that Bowdoin could
have stayed at a hotel or other lodging and gotten a ride to work on the day work
began does not mean that Badon’s mission to get him to Florida was completed nor
does it mean that they are entitled to summary judgment.
As such, given the status of the record, we find that reasonable minds could
differ as to whether Badon was in the course and scope of his employment with
WHC when the accident occurred. Accordingly, we find no error by the trial court
in denying Defendants’ motion for summary judgment.
CONCLUSION:
WHC Maintenance Services, Inc., Zurich American Insurance Company,
and AIG Specialty Insurance Company raise two assignments of error. We find
merit in the first and reverse the trial court’s judgment granting Dustin William
Bowdoin’s motion for summary judgment based on the factual question of whether
Devin Badon was in the course and scope of his employment with WHC
Maintenance Services, Inc. when the automobile accident in question transpired.
Further, we affirm the trial court’s denial of WHC Maintenance Services, Inc.,
Zurich American Insurance Company, and AIG Specialty Insurance Company’s
motion for summary judgment because whether Devin Badon was not in the course
and scope of his employment with WHC Maintenance Services, Inc. when the
automobile accident in question transpired is a question of material fact.
Accordingly, we remand this matter for further proceedings consistent with this
opinion. 9 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.