STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
r M, 4 Ore4.) 2021 CA 0457
MICHAEL ELLIS
VERSUS
CIRCLE L TRUCKING, L. L. C. AND EMPLOYERS MUTUAL CASUALTY COMPANY
Judgment Rendered: DEC 3 0 2021
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 676118
Honorable Ronald R. Johnson, Judge Presiding
John Benjamin Bireley Counsel for Plaintiff/ Appellant Noah M. Wexler Michael Ellis Houston, Texas
A. M. " Tony" Clayton Michael P. Fruge' Richard J. Ward, III Michael C. Hendry Randall " Blue" Gay, Jr. Brilliant P. Clayton Port Allen, Louisiana
Thomas M. Flanagan Anders F. Holmgren New Orleans, Louisiana
Joseph E. Bearden, III Counsel for Defendant/ Appellee John G. Yadamec Employers Mutual Casualty Company Olivia C. Mallary Metairie, Louisiana
BEFORE: McCLENDON, WELCH AND THERIOT, JJ. r£ CJ McCLENDON, J.
In this personal injury case arising out of a single -vehicle accident, the plaintiff
appeals the trial court's judgment that granted the insurance company's motion for
summary judgment and dismissed the plaintiff's claims with prejudice. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 14, 2018, Michael Ellis filed a Petition for Damages against Circle L
Trucking, L. L. C. ( Circle L) and its liability insurer, Employers Mutual Casualty Company
EMC). 1 In his petition, Mr. Ellis alleged that on September 27, 2018, he was a
passenger in an 18 -wheeler truck driven by John Landry, Circle L's employee, when Mr.
Landry failed to control his speed, causing the 18 -wheeler to hydroplane and roll off the
road into a ditch. As a result, Mr. Ellis asserted that he sustained serious injury to his
neck, back, and other parts of his body. Mr. Ellis sought damages based on theories of
negligence, respondeat superior, and agency.
On March 12, 2020, EMC filed a motion for summary judgment, averring that Mr.
Ellis was an employee of Circle L and that, as an employee of Circle L, all of his claims
against EMC were unambiguously excluded from coverage by the plain language of
EMC' s " Business Auto" policy of insurance, which was in effect on the date of the
accident. According to EMC, there were no genuine issues of material fact, and EMC
was entitled to summary judgment as a matter of law.
In opposition to the motion, Mr. Ellis argued that he was required to sign a
contract with Circle L stating that he was an independent contractor and not an
employee. Thus, he maintained, his employment status was a factual determination
better made by the factfinder rather than in a motion for summary judgment.
Following a hearing, the trial court agreed with EMC and concluded that Mr. Ellis
was an employee of Circle L. Therefore, the trial court found that EMC' s business
automobile insurance policy excluded insurance coverage for Mr. Ellis's claims, and it
granted EMC' s motion for summary judgment and dismissed Mr. Ellis' s claims with
prejudice. The trial court signed a judgment on December 23, 2020, and Mr. Ellis
1 Circle L was in the business of delivering portable buildings.
2 appealed. On appeal, Mr. Ellis argues that the trial court erred in finding an absence of disputed material facts and in granting the summary judgment. DISCUSSION
The summary judgment procedure is designed to secure the just, speedy, and
inexpensive determination of every action, except those disallowed by Article 969, and
the procedure is favored and shall be construed to accomplish these ends. LSA- C. C. P.
art 966A( 2). After an opportunity for adequate discovery, summary judgment shall be
granted if the motion, memorandum, and supporting documents show that there is no
genuine issue as to material fact and that the mover is entitled to judgment as a matter
of law. LSA- C. C. P. art. 966A( 3). In determining whether summary judgment is
appropriate, appellate courts review evidence de novo under the same criteria that
govern the trial court's determination of whether summary judgment is appropriate.
Prejean v. McMillan, 18- 0919 ( La. App. 1 Cir. 2/ 28/ 19), 274 So. 3d 575, 578.
In ruling on a motion for summary judgment, the court's role is not to evaluate
the weight of the evidence or to make a credibility determination, but instead to
determine whether or not there is a genuine issue of material fact. Hines v. Garrett,
04- 0806 ( La. 6/ 25/ 04), 876 So. 2d 764, 765 ( per curiam). A genuine issue is one as to
which reasonable persons could disagree; if reasonable persons could reach only one
conclusion, summary judgment is appropriate. Hines, 876 So. 2d at 765- 66. A fact is
material when its existence or nonexistence may be essential to a plaintiff's cause of
action under the applicable theory of recovery. Collins v. Franciscan Missionaries
of Our Lady Health System, Inc., 19- 0577 ( La. App. 1 Cir. 2/ 21/ 20), 298 So. 3d 191,
195, writ denied, 20- 00480 ( La. 6/ 22/ 20), 297 So. 3d 773. Moreover, ultimate or
conclusory facts and conclusions of law are not to be utilized on a summary judgment
motion. Thompson v. South Central Bell Tel. Co., 411 So. 2d 26, 28 ( La. 1982);
Labarre v. Occidental Chemical Company and Texas Brine Company, LLC, 17-
1370 ( La. App. 1 Or. 6/ 4/ 18), 251 So. 3d 1092, 1102, writ denied, 18- 1380 ( La.
12/ 3/ 18), 257 So. 3d 196.
The burden of proof rests with the mover. LSA- C. C. P. art. 9661)( 1).
Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is
3 before the court on the motion for summary judgment, the mover' 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 the absence of factual
support for one or more elements essential to the adverse party's claim, action, or
defense. The burden is then on 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. LSA- C. C. P. art. 966D( 1).
The interpretation of an insurance policy usually involves a legal question that
can be resolved properly in the framework of a motion for summary judgment.
An insurance policy is a contract between the parties and should be construed using the
general rules of interpretation of contracts set forth in the Civil Code. Womack v. Mar
ay Productions, L. L. C., 19- 0712 ( La. App. 1 Cir. 2/ 21/ 20), 298 So. 3d 745, 750, writ
denied, 20- 00424 ( La. 6/ 12/ 20), 307 So. 3d 1032. Interpretation of a contract is the
determination of the common intent of the parties. LSA- C. C. art. 2045. When the
words of a contract are clear and explicit and lead to no absurd consequences, no
further interpretation may be made in search of the parties' intent. LSA- C. C. art. 2046.
When determining whether a policy affords coverage for an incident, the insured
bears the burden of proving the incident falls within the policy's terms. Miller v.
Superior Shipyard and Fabrication, Inc., 01- 2683 ( La. App. 1 Cir. 11/ 8/ 02), 836
So. 2d 200, 203. However, an insurer has the burden of proving that a loss falls within
a policy exclusion. Additionally, in determining whether an exclusion applies to
preclude coverage, courts are guided by the well- recognized rule that an exclusionary
clause in an insurance policy must be strictly construed against the insurer, and any
ambiguity in the exclusion is construed in favor of the insured. Nonetheless, an
insurance policy, including its exclusions, should not be interpreted in an unreasonable
or strained manner so as to enlarge or to restrict its provisions beyond what is
reasonably contemplated by its terms or so as to achieve an absurd conclusion.
Savoie v. Anco Insulations, Inc., 20- 0584 ( La. App. 1 Cir. 4/ 9/ 21), 322 So. 3d 1264,
1266- 67. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer's liability and impose and enforce reasonable conditions upon the
policy obligations the insurer contractually assumes. Prejean, 274 So. 3d at 578- 79.
In its motion for summary judgment, EMC referred to the following policy
exclusions in its Commercial Auto Policy — Business Auto:
SECTION II —COVERED AUTOS LIABILITY COVERAGE
B. Exclusions
This insurance does not apply to any of the following:
3. Workers' Compensation
Any obligation for which the " insured" or the " insured' s" insurer may be held liable under any workers' compensation, disability benefits or unemployment compensation law or any similar law.
4. Employee Indemnification And Employer' s Liability
Bodily injury" to:
a. An " employee" of the " insured" arising out of and in the course of:
1) Employment by the " insured"; or 2) Performing the duties related to the conduct of the " insured' s" business;
S. Fellow Employee
a. Any fellow " employee" of the " insured" arising out of and in the course of the fellow " employee' s" employment or while
performing duties related to the conduct of your business....
It is undisputed that Circle L was an " insured" under EMCs policy. However, in
his appeal, Mr. Ellis maintains that he was an independent contractor, rather than an
employee, as evidenced by the independent contractor agreement he signed with Circle
L, and not excluded from coverage for his injuries under EMCs- insurance policy.
Therefore, the central issue in this appeal is the nature of the relationship between Mr.
Ellis and Circle L.
5 In support of its motion for summary judgment, EMC submitted the affidavit of
EMC' s representative with a copy of the insurance policy at issue attached, the
deposition Mr. Ellis, and the deposition of Circle L, through its representative, Floyd
Landry.2 Mr. Ellis testified that he began working for Circle L as a helper approximately two weeks before the accident at issue. He explained that his job as a helper was to
help load portable buildings onto a trailer and strap them down and to help unload
them from the trailer and block them to make sure they were level. Mr. Ellis stated that
he did not supply his own tools. He also testified that he worked Monday through
Friday and was paid $ 100. 00 per day. Mr. Ellis stated that a typical day was
approximately eight to nine hours during the time he worked, and he believed that he
would be fired if he did not show up for work.
Mr. Ellis also testified that he would report to John Landry when he arrived at
Circle L, who would tell him what to do for that day. Mr. Ellis stated that he also took
direction from John Landry's son, Floyd, who was a driver, and with whom he rode for
the two weeks before the accident. Mr. Ellis testified that on the day of the accident,
he and John Landry were returning from Mississippi after delivering two portable
buildings when the accident occurred. Mr. Ellis believed that he was an employee of
Circle L.
Floyd Landry, who testified for Circle L, stated that Mr. Ellis was a contract
laborer and not an employee of Circle L.3 Mr. Landry also testified that both he and Mr.
Ellis had signed independent contractor agreements and that neither were employees.
He also added that Circle L had no employees because everyone at Circle L, including
2 We note that the affidavit of EMCs representative attaching a copy of the insurance policy was not signed and that EMC attached the deposition of Circle L' s representative to its Reply Memorandum. With regard to the purported affidavit, Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to use unsworn and unverified documents as summary judgment evidence, and attaching such documents to a motion for summary judgment does not transform them into competent summary judgment evidence. Tilley v. City of Walker, 18- 1587 ( La. App. 1 Cir. 12/ 30/ 19), 294 So. 3d 496, 502 n. 2; Wood v. Allstate Property and Casualty Insurance, 18- 0404 ( La. App. 1 Cir. 12/ 13/ 18), 2018 WL 6597109, at * 1 n. 3 ( unpublished). Additionally, the court may consider only those documents filed in support of or in opposition to the motion for summary judgment and not documents attached to a reply memorandum. See LSA- C. C. P. art. 966D( 2). Nevertheless, the trial court must consider any documents to which there is no objection. LSA- C. C. P. art. 966D( 2). The record herein contains no objection to the introduction of either the affidavit of the EMC representative or the deposition of Circle L' s representative, and the trial court admitted both into evidence. Thus, the trial court was constrained to consider same, as we have done in our de novo review.
3 The corporate deposition of Circle L was taken on August 7, 2020. John Landry, who was the owner of Circle L, is deceased, and his son, Floyd Landry, testified that Circle L ceased doing business in March 2020. his father, John Landry, signed independent contractor agreements. Additionally, Mr.
Landry stated that a helper was not bound to work any number of hours or days per
week for Circle L and was free to accept or decline work on any given day it was offered. However, he testified that if a helper did not do what was asked of him, he
would be terminated for not doing his job.
With regard to Mr. Ellis, Mr. Landry testified that Mr. Ellis was informed as to the
time to show up at Circle L to start work either through a text message or verbally by
someone at Circle L. Additionally, Mr. Landry testified that Circle L provided the
necessary tools and equipment to Mr. Ellis for his job and that Mr. Ellis received
instructions on how to perform his job by riding with the driver on deliveries. Mr.
Landry stated that he showed Mr. Ellis " the method of what the job required" and how
Circle L wanted it done. He also stated that Mr. Ellis had no supervisory role at Circle L.
In opposition to the motion for summary judgment, Mr. Ellis submitted his
deposition testimony, as well as the independent contractor agreement signed by Circle
L and Mr. Ellis on August 1, 2018. 4 Among its provisions, the contract identified Mr.
Ellis as " an independent contractor," specifically providing that an independent
contractor " shall not be deemed" an employee of Circle L. The agreement also
provided that Circle L would pay Mr. Ellis a fixed sum per day and would not withhold
taxes, provide any employee benefits, or extend workers' compensation coverage to Mr.
Ellis. The contract further stated that either party could terminate the agreement with
reasonable cause.
The Louisiana Supreme Court in Hickman v. Southern Pacific Transport Co.,
262 La. 102, 262 So. 2d 385, 390 ( La. 1972), explained that the term independent
contractor connotes a freedom of action and choice with respect to the undertaking in
question and a legal responsibility on the part of the contractor in case the agreement
is not fulfilled in accordance with its covenants. The supreme court further stated that
when, as here, the issue is whether the worker is an independent contractor or an
employee, the court should consider whether ( 1) there is a valid contract between the
4 Additionally, Mr. Ellis submitted a copy of the police report, copies of certain emails regarding the taking of the corporate deposition, and the affidavit of Mr. Ellis' s counsel.
7 parties; ( 2) the work being done is of an independent nature such that the contractor
may employ non- exclusive means in accomplishing it; ( 3) the contract calls for specific
piecework as a unit to be done according to the independent contractor's own methods,
without being subject to the control and direction of the principal, except as to the
result of the services to be rendered; ( 4) there is a specific price for the overall
undertaking agreed upon; and ( 5) the duration of the work is for a specific time and not
subject to termination or discontinuance at the will of either side without a
corresponding liability for its breach. Hickman, 262 So. 2d at 390- 91. See also Tower
Credit, Inc. v. Carpenter, 01- 2875 ( La. 9/ 4/ 02), 825 So. 2d 1125, 1129.
The principal test in determining whether someone is an independent contractor
is the degree of control over the work reserved by the employer.
Hickman, 262 So. 2d at 391. It is not the supervision and control actually exercised
that is significant, but whether, from the nature of the relationship, the right to exercise
such control exists. Collins v. State Through Department of Natural Resources,
16- 1195 ( La. App. 1 Cir. 4/ 28/ 17), 220 So. 3d 92, 97, writ denied, 17- 0879 ( La.
9/ 29/ 17), 227 So. 3d 289. Yet, while the essence of an employer-employee relationship
is the right to control, no one factor is controlling, and the court should consider the
totality of the circumstances in determining whether an employer-employee relationship
exists. Collins, 220 So. 3d at 97; Fonseca v. City Air of Louisiana, LLC, 15- 1848
La. App. 1 Cir. 6/ 3/ 16), 196 So. 3d 82, 87.
With regard to the first Hickman factor, Mr. Ellis argues that the parties' intent
was to enter into an independent contractor arrangement, as evidenced by his signing
of the of the independent contractor agreement. EMC does not deny the existence of
the agreement, but questions its validity and argues that the designation was made to
avoid workers' compensation responsibility and circumvent the law. EMC contends that,
in fact, everyone at Circle L, including the " person in charge," John Landry, was
required to execute the independent contractor agreement.
The second and third Hickman factors are generally discussed together and
refer to the methods used to complete the project, the non -exclusiveness of those
methods, and the degree of control exercised by the principal. Simon v. Farm
M. Bureau Insurance Co., 19- 278 ( La. App. 3 Cir. 3/ 4/ 20), 297 So. 3d 147, 151, writ
denied, 20- 00438 ( La. 6/ 12/ 20), So. 3d . Again, the most important inquiry to
be made in determining the relationship between the parties is whether the principal
reserved the right to control the work. Hickman, 262 So. 2d at 391. Although Mr.
Landry testified that a helper was not required to work any number of hours or days
per week for Circle L and that he was free to accept or decline work when it was
offered, Mr. Ellis's own testimony, submitted by both parties, as well as Mr. Landry' s
testimony for Circle L, show that Mr. Ellis had very limited, if any, freedom of action in
accepting or performing the work required of him. Mr. Ellis asserted that everyone else
at Circle L was his " boss," and he did what he was told to do. These assertions were
not contradicted by the testimony of Mr. Landry for Circle L. Mr. Ellis would get
instructions as to what time to show up for work, was trained on the job as to how to
perform, and was not free to carry out the work by his own methods. Additionally,
Circle L controlled the time for the performance of a pickup or delivery, as well as the
order in which the pickups and deliveries were made. Circle L also supplied all of the
necessary tools and equipment, and Mr. Ellis never brought anything to the job to use.
The fourth Hickman factor looks to whether there was a specific price for the
overall undertaking. Initially, we note that there was no agreement to do a specific
project or overall undertaking for a specific price. Mr. Ellis performed the specific work
he was assigned. Additionally, Mr. Ellis was paid a flat rate of $ 100. 00 per day as a
helper, regardless of the number of hours he worked and regardless of the nature or
the amount of the work completed.
The final factor to consider is whether the work to be done was for a specific
time and not subject to termination or discontinuance at the will of either side without a
corresponding liability for its breach. Hickman, 262 So. 2d at 391. The independent
contractor agreement did not provide for any duration of work or specific time, and it
only provided when the work relationship began. Although the contract provided for
termination with reasonable cause by either party, Mr. Landry testified that a helper could choose not to work at any given time and that Circle L could dismiss a helper who
failed to do the job asked of him without any consequences -5
The evidence presented establishes that Mr. Ellis's work was not of an
independent nature and lacked the right of supervision and control by Mr. Ellis.
Further, the agreement did not call for specific piecework to be performed according to Mr. Ellis' s own methods for a specific price or for a specific time. This lack of the
independent nature of the work and the lack of the right of control and supervision by
Mr. Ellis is undisputed. The testimony of both Mr. Ellis and Circle L establish that Mr.
Ellis did not control how the work assigned to him was to be done. He was a helper
and had no independent responsibility. Further, the contract could have been
discontinued with cause by either side without consequences. Thus, despite the
existence of the independent contractor agreement, the uncontested facts establish
that Mr. Ellis did not have an independent contractor relationship with Circle L, but was
working as an employee of Circle L. Therefore, we find that EMC established the
absence of factual support for Mr. Ellis' s claim that he was an independent contractor,
and Mr. Ellis failed to produce factual support sufficient to establish the existence of a
genuine issue of material fact.
Consequently, EMC' s insurance policy must be enforced as written. Because the
insurance policy specifically excludes coverage for bodily injury to an " employee" of the
insured," summary judgment on the basis of the " employee" exclusions was proper.6
CONCLUSION
The December 23, 2020 judgment of the trial court, granting summary judgment
in favor of Employers Mutual Casualty Company and dismissing Michael Ellis' s claims
with prejudice, is affirmed. Costs of this appeal are assessed to Michael Ellis.
AFFIRMED.
5 It is undisputed that Mr. Ellis was terminated after the accident. Mr. Landry testified that Mr. Ellis was fired for stealing, whereas Mr. Ellis believed he was fired because he was hurt and the accusation of stealing " was an excuse."
6 Having found that the " employee" exclusions preclude recovery by Mr. Ellis, we pretermit discussion of EMC' s argument that the workers' compensation exclusion in EMC' s insurance policy also applies.
10 MICHAEL ELLIS NO. 2021 CA 0457
FIRST CIRCUIT VERSUS
COURT OF APPEAL CIRCLE L TRUCKING, L.L.C. AND EMPLOYERS MUTUAL CASUALTY COMPANY STATE OF LOUISIANA
WELCH, J., concurring.
lLIJ While I agree with the majority' s analysis of the factors set forth in
Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385, 390
La. 1972) and its conclusion that Mr. Ellis did not have an independent contractor
relationship with Circle L, I write separately to point out that even if Mr. Ellis was
an independent contractor, Mr. Ellis' s claims against Circle L would be covered
under workers' compensation pursuant to La. R.S. 23: 1021( 7) because " a
substantial part of [his] work time ... [ was] spent in manual labor by him carrying
out the terms of the contract." Therefore, the insurance policy exclusion applies
regardless of whether Mr. Ellis was an employee or an independent contractor and
summary judgment dismissing Mr. Ellis' s claims was proper.
Thus, I respectfully concur.