Garcia v. Furnace and Tube Service, Inc.

921 So. 2d 205, 2006 WL 217798
CourtLouisiana Court of Appeal
DecidedJanuary 27, 2006
Docket40,517-CA
StatusPublished
Cited by7 cases

This text of 921 So. 2d 205 (Garcia v. Furnace and Tube Service, Inc.) 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
Garcia v. Furnace and Tube Service, Inc., 921 So. 2d 205, 2006 WL 217798 (La. Ct. App. 2006).

Opinion

921 So.2d 205 (2006)

Gabrela Garcia and Andrew GARCIA, Plaintiffs-Appellees,
v.
FURNACE AND TUBE SERVICE, INC. and John D. Broussard, Defendants-Appellants.

No. 40,517-CA.

Court of Appeal of Louisiana, Second Circuit.

January 27, 2006.

*207 Travis M. Holley, Bastrop, Ellender & Ellender by Daniel Joseph Ellender, Monroe, for Appellees.

Lavalle B. Solomon, for Appellant John D. Broussard.

Theus, Grisham, Davis & Leigh by Phillip D. Myers, Monroe, for Appellant Furnace & Tube Service, Inc.

G. Scott Moore, Monroe, for Appellant Gray Insurance Company.

Before BROWN, PEATROSS and LOLLEY, JJ.

LOLLEY, J.

This appeal arises from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana. Furnace and Tube Service, Inc. ("Furnace and Tube") appeals the trial court judgment holding it vicariously liable for damages sustained by an employee, Andrew Garcia, as a result of the intentional tort committed by John Broussard, a co-employee. Garcia answered the appeal seeking an increase in *208 the damage award and attorney fees. For the reasons stated herein, the judgment of the trial court is amended to include future medical costs.

FACTS

This matter stems from a physical altercation which occurred between two employees of Furnace and Tube on January 4, 2004. Andrew Garcia and John Broussard were employed as welders with Furnace and Tube to work on a project welding boiler tubes in Sterlington, Louisiana. Although Garcia worked other jobs for Furnace and Tube, he had been working at the Sterlington job site only a few days when the altercation occurred. On the day of the incident, Garcia drove his own vehicle to the gate of the plant and was then driven to the job site by an employee of Furnace and Tube in an employer truck. Prior to this job assignment, Garcia and Broussard had never met, nor was there evidence of any prior problems between the men.

Right before the conflict began, a quality control officer named Stanley Hebert approached Garcia at the site where he was welding a boiler tube. Hebert inspected Garcia's work to check the quality and apparently did not find it to be substandard. After Hebert walked away, Garcia questioned Broussard concerning some negative comments he allegedly made to Hebert regarding Garcia's work quality. Broussard denied making any negative comments to Hebert and then a verbal argument ensued. The two men faced off, but no physical blows were exchanged. It was during this verbal exchange that Garcia reportedly told Broussard to "mind his own f____g business." Following the verbal encounter, Garcia walked away after picking up his tool box, and he told James Dortch, the foreman who was nearby on a forklift, that he was "out of here." Garcia then proceeded to walk a distance of 50 feet and got into the back of the foreman's pick-up truck that was used to transfer the employees to the front gate at the end of the work shift. Within a couple of minutes, Broussard was seen walking in the direction of the truck. Testimony as to what occurred varied by the parties.

Broussard did not attend the trial, but he gave testimony by way of deposition. He testified that after the two men faced off, they agreed to go fight outside the gate, and he stated that is why he went to the pick-up truck where Garcia was sitting. He stated that Garcia picked up the metal pry bar first and initiated the attack. Broussard further testified that he then took the metal pry bar from Garcia and that Garcia then picked up a sucker rod from the truck. It was Broussard's testimony that this provoked him to swing at Garcia with the metal pry bar in self-defense.

In contrast to Broussard's testimony, Garcia testified that after the men had a verbal exchange, he picked up his tool box, walked to the foreman's truck and got into the back of the truck with the intent to quit the job and leave. Garcia denied initiating the attack. He testified that after he got into the truck bed, Broussard walked up to the truck, grabbed the metal pry bar from the side of the truck and began swinging it at him. Garcia stated he was struck so forcibly on his arm that it caused him to fall out of the truck bed onto the ground. He testified that Broussard continued to hit him with the metal pry bar and that he finally was able to get up and run to a nearby toolshed. Garcia stated that at that point he realized he had sustained a compound fracture to his left arm.

Dortch testified that although he did not witness the first blow, he did witness Garcia walk to the truck and shortly after he *209 saw Broussard walk in the same general direction. He testified that when he next looked, he saw Garcia fall from the back of the truck onto the ground. Dortch stated that Broussard continued to hit Garcia while he was on the ground so he ran over to the men to try and stop the altercation. He testified that although he attempted to intervene, Broussard continued to hit Garcia with the metal pry bar. Dortch stated that Garcia finally got up and ran away to a nearby toolshed.

Hebert confirmed that Broussard asked him to inspect Garcia's work on the boiler tube and that after doing so he did not find a problem with the workmanship.

Following the attack, Garcia was taken to North Monroe Community Hospital for treatment. Surgery was performed by an orthopedic surgeon named Dr. Randolph H. Taylor. Dr. Taylor testified that he used a six-inch metal plate and eight screws to repair the fracture of Garcia's ulna and dislocated radius. Subsequent to the surgery, Garcia was placed under the care of another orthopedic surgeon in Beaumont, Texas by the name of Dr. John T. Taylor. Garcia was seen by Dr. Taylor over the course of the next nine months. After some period of time, Dr. Taylor found evidence that the ulna was not healing properly, so he prescribed a mechanism for Garcia to wear which would facilitate the healing process. Dr. Taylor testified that x-rays taken later revealed that the fracture to Garcia's forearm had healed properly. Although Garcia still experiences some sensitivity in the area of the injury, Dr. Taylor released him to return to work with the limitation of lifting no more than 75 pounds.

As a result of the attack by Broussard, Garcia incurred $17,878.24 in medical expenses during treatment. The parties stipulated that Garcia was paid worker's compensation benefits in the amount of $16,731.00 based on his weekly earnings of $928.48 for thirty-nine (39) weeks of missed work. It was determined that Garcia had a 10% upper extremity impairment which resulted in a six percent whole person impairment. Dr. Taylor opined that future surgery may be recommended to remove the metal plate from Garcia's arm if he continued to experienced discomfort or sensitivity due to the retention of the metal plate. Dr. Taylor estimated that surgery to remove the metal plate from Garcia's arm would cost around $5,000.00.

Garcia filed this action for damages against both Broussard and Furnace and Tube, alleging that he was the victim of an intentional battery and that Furnace and Tube was vicariously liable for the actions of its employee, Broussard. Garcia's wife, Gabrela Garcia, made a claim of loss of consortium, which ultimately was dismissed prior to the commencement of the trial. Furnace and Tube answered Garcia's petition denying liability and contending that Garcia was the initial aggressor. They also filed an affirmative defense that Garcia's claims against them were limited to worker compensation benefits.

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Bluebook (online)
921 So. 2d 205, 2006 WL 217798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-furnace-and-tube-service-inc-lactapp-2006.