Martin v. Herke

186 So. 3d 686, 2013 WL 11251179
CourtLouisiana Court of Appeal
DecidedNovember 13, 2013
DocketNos. 2012 CA 2110, 2012 CA 2111
StatusPublished

This text of 186 So. 3d 686 (Martin v. Herke) 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
Martin v. Herke, 186 So. 3d 686, 2013 WL 11251179 (La. Ct. App. 2013).

Opinion

THERIOT, J.

lain this case arising out -of an automobile accident, the plaintiff appeals a summary judgment dismissing' her claims against the other driver’s employer on the grounds that, that driver was not in the course and scope of her employment at the time of the accident. We affirm.

FACTS AND PROCEDURAL HISTORY

This suit stems from an automobile accident that occurred on the evening of February 27, 2007, when Kristin Herke made an improper left turn into Debra Coston’s lane of travel, striking Ms. Coston’s vehicle. Ms. Coston filed a suit for damages against Ms, Herke and her insurer, and later amended her petition to add the State of Louisiana, through the Office of Student Financial Assistance (“State”), as a defendant, alleging that Ms. Herke was in the course and scope of her employment with the State at the time of the accident.

Ms. Coston was employed by the ARC of Baton Rouge. Subsequent to the accident, she was paid workers’ compensation benefits by the Louisiana Safety'Association of Timbermen — Self Insurers Fund pursuant to a contract between that organization and her employer. The Louisiana Safety Association of Timbermen — Self Insurers Fund, through its chairman Todd' Martin, also filed suit against Ms. Herke, seeking repayment1 of the workers’ compensation benefits. paid to Ms. Coston. The two suits were later consolidated.

The State filed a motion for summary judgment, seeking to dismiss all claims against it on the grounds that the plaintiffs lacked evidentiary support for a necessary element of their claims, ie., that Ms. Herke: was in the course and scope of her employment with the State at the time of the accident. -In support of this motion, the State offered Ms. Herke’s responses to Ms. | ¡¡Coston’s interrogatories and requests for production of documents as well as Ms. Herke’s affidavit. Ms. Coston filed no written opposition to the motion for summary judgment, but at the hearing on the motion, she offered Ms. Herke’s affidavit, her responses to interrogatories and requests for production of documents, and her deposition. After a hearing, the court [688]*688granted summary judgment in favor of the State, dismissing all claims against it. Ms. Goston filed.the instant appeal, alleging that there exists a genuine issue of material fact as to whether Ms. Herke was in the course and scope of her employment at the time of the accident, and therefore the trial court erred in granting the State’s motion for summary judgment.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is .no genuine issue of material fact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116, p. 4 (La.App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La.11/19/10), 49 So.3d 387. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits; if any, show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law. See La. C.C.P. 966(B).

The burden of proof on a motion for summary judgmént remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on -the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of. the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. | ¿Thereafter, if the adverse party fails to produce factual support sufficient to establish that he 'will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party, to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish School Board, 07-1856, p. 2 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113; see also La. C.C.P. art. 967(B).1

Appellate' courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Janney v. Pearce, 09-2103 (LaApp. 1 Cir. 5/7/10), 40 So.3d 285, 290, writ denied, 10-1356, p. 6 (La.9/24/10), 45 So.3d 1078.

Under Louisiana law, an employer is answerable for the damage occasioned by its servants in the'exercisé of the functions ⅛ which the servant is employed. La. C.C. aft. 2320. 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. Timmons v. Silman, [689]*6891999-3264, p. 4 (La.5/16/00), 761 So.2d 607, 510. An employee is acting within Uthe 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.” Id.

An employee going to or coming from work is generally not considered as acting in the course and scope of employment so as to make the employer liable to third persons for the employee’s negligence. 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.

The following evidence was before the court on the motion for summary judgment: Ms. Herke was employed by the State Office of Student Financial Assistance as a Public Information Officer I. She had been employed in that capacity for approximately one month prior to the accident at issue. In her early employment, her duties included learning about the various types of student financial aid available, and she was sometimes assigned to attend and observe presentations. On the night of the accident, Ms. Herke observed a presentation being given by her coworker at St. Joseph’s Academy in Baton Rouge.2 The presentation at St. Joseph’s Academy was in the evening, after normal working hours. Ms. Herke drove her own automobile to and from the presentation. Ms. Herke testified in her deposition that she was not required to attend this presentation at St. Joseph’s Academy as part of her employment; she explained, “I had been | (¡assigned to observe a number of other presentations primarily by my supervisor. Because I had gone to St. Joseph’s Academy, my supervisor had suggested that I might want to go just basically to see the academy. You just can’t just walk in sometime and visit it so this would give me an opportunity to take a look at it.” After the presentation coneludéd, Ms.

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Related

White v. Frederick
17 So. 3d 1016 (Louisiana Court of Appeal, 2009)
Pugh v. St. Tammany Parish School Bd.
994 So. 2d 95 (Louisiana Court of Appeal, 2008)
Pace v. City of New Orleans
761 So. 2d 602 (Louisiana Court of Appeal, 2000)
Costello v. Hardy
864 So. 2d 129 (Supreme Court of Louisiana, 2004)
All Crane Rental of Georgia, Inc. v. Vincent
47 So. 3d 1024 (Louisiana Court of Appeal, 2010)
Janney v. Pearce
40 So. 3d 285 (Louisiana Court of Appeal, 2010)
M R Drywall v. Mapp Const., 2009-2078 (La. 11/25/09)
22 So. 3d 168 (Supreme Court of Louisiana, 2009)

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Bluebook (online)
186 So. 3d 686, 2013 WL 11251179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-herke-lactapp-2013.