Mitchell v. Industrial Fill Materials, Inc.

859 So. 2d 36, 2003 WL 21513256
CourtLouisiana Court of Appeal
DecidedJuly 2, 2003
DocketNos. 2002 CA 2021, 2002 CA 2022, 2002 CA 2023
StatusPublished
Cited by5 cases

This text of 859 So. 2d 36 (Mitchell v. Industrial Fill Materials, 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
Mitchell v. Industrial Fill Materials, Inc., 859 So. 2d 36, 2003 WL 21513256 (La. Ct. App. 2003).

Opinion

J^CIACCIO, J.

Plaintiffs appeal a directed verdict dismissing their workers compensation claim with prejudice.

[38]*38FACTS

Truck driver William Georgetown died when the bed of his dump truck fell and crushed him. There were no witnesses to the accident but Georgetown had just reported to Ronnie Vallery that the bed was not working properly.

The mothers of Georgetown’s three children, Josie Warner, Carolyn Mitchell, and Jocelyn Phillips, filed a disputed claim for Compensation against Terry Vallery Trucking (TVT), Ronnie Vallery Trucking (RVT), and Industrial Fill Materials, Inc. (IFM) and its insurer, Louisiana Workers Compensation Corporation. Plaintiffs alleged that TVT, RVT, and IFM were actually all one company and that Georgetown was killed during the course and scope of his employment with them.

After a hearing, the Office of Workers Compensation (“OWC”) granted a directed verdict holding that: 1) Georgetown was an employee of TVT; 2) plaintiffs failed to prove that Georgetown was an employee of either RVT or IFM; and 3) Georgetown was not within the course and scope of his employment with TVT when the accident occurred. OWC then dismissed plaintiffs’ suit with prejudice.

Plaintiffs now appeal, arguing that the trial court erred: 1) in finding that Georgetown was not acting in the course and scope of his employment when he was killed; and 2) in finding that Georgetown was not employed by RVT and/or IFM at the time of his death.

LAW AND ANALYSIS

Standard of Review

An appellate court’s review of OWC’s factual findings is governed by the manifest error standard.2 An appellate court may set aside OWC’s factual findings only if it determines that the record does not provide a reasonable factual basis for OWC’s conclusion or if, after reviewing the record in its entirety, it concludes that OWC’s finding was clearly wrong. But reasonable credibility evaluations and | ¡/factual inferences should not be disturbed on review even if the appellate court feels that its own evaluations and inferences are more reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.3

Course and Scope of Employment

A personal injury is compensable under the Workers’ Compensation Act only if it results from an accident “arising out of and in the course of employment.”4 Plaintiffs allege that OWC erred in concluding that Georgetown was not acting within the course and scope of his employment when he died.

To evaluate the “course of employment” requirement, the court must focus on whether the employee sustained an injury while actively engaged in the performance of his duties during working hours, either on the employer’s premises or at a place contemplated by employment activities.5 This inquiry focuses upon the time and place relationship between the injury and the employment. When considering the “arising out of employment” requirement, the court must inquire into the character or origin of the risk suffered by the employee and determine whether this risk was incidental to the employment. [39]*39An injury arose out of employment if the risk for that injury was greater for the employee than for a person not engaged in the employment.6

In its oral reasons for judgment, OWC stated that a “major point” of influence in its decision was that Georgetown was not being paid at the time of his accident. But plaintiffs contend that Georgetown was being paid. Plaintiffs point to Terry Val-lery’s testimony that Georgetown did not punch a clock but was paid “30 percent of whatever the truck made.” Ronnie Val-lery, owner of RVT and Terry’s father, acknowledged that if an employee’s truck weren’t working, that employee would not make any money during that time.

Plaintiffs allege that Georgetown therefore worked on a “commission” basis.

1¿Ronnie testified that shortly before the accident, Georgetown asked him to look at the dump truck bed because it had not been working well. Ronnie testified that he told Georgetown that Terry would change the hose. When Georgetown asked whether the truck would be ready the next morning, Ronnie told him yes. But according to Ronnie, Georgetown asked again, “you’re sure?”

Plaintiffs maintain in brief that this testimony shows that Georgetown “intended to facilitate or hasten repairs that were in furtherance of his employment duties.” Georgetown’s duties as a dump truck driver involved hauling the truck’s contents to a designated site for delivery. Georgetown knew that if the truck was still broken the next day and he could not dump the contents of the truck’s bed, he would not get paid. The risk of being injured or killed by a malfunctioning dump truck bed is certainly greater for the truck’s operator than for people not engaged in this activity. The OWC was clearly wrong in declaring that the sole function of Georgetown was to drive the truck as he failed to recognize that it was necessary for the driver to dump the contents of the truck at the delivery site. The operation of the dump truck bed was an integral part of Georgetown’s duties.

Georgetown had not been ordered to stay away from the truck or to refrain from checking its operation, an activity in furtherance of his employer’s business. There is no evidence as to what Georgetown was doing before he was killed by the falling dump truck bed. He may have been negligent in volunteering to attempt to either inspect or repair the malfunctioning hose, but negligence is not a bar to recovery under workers’ compensation law.

At the time of the accident, Georgetown had returned to the trucking company lot. Terry testified that he usually told Georgetown at the end of the day about the next day’s assignment. Terry acknowledged that Georgetown might have been waiting for him to return to the lot for further instructions.

Georgetown died on his employer’s premises. Even if Georgetown was not responsible for the truck’s maintenance, if the truck was not working the following day, he could not perform his duties as a dump truck driver and therefore would not Gbe paid. The record shows that: 1) Georgetown was a dump truck driver who was killed when the dump truck bed fell while he was either inspecting or attempting to repair it; and 2) this was the truck that Georgetown drove as part of his employment. After reviewing the testimony, we find that OWC was clearly wrong in finding that Georgetown was not acting within the course and scope of his employ[40]*40ment as a dump truck driver when this accident occurred. This assignment of error has merit.

Employer Status

Plaintiffs further contend on appeal that OWC erred in failing to recognize the existence of an employment relationship between Georgetown and RVT and IFM. Plaintiffs argue that TVT, Georgetown’s admitted employer, and RVT and IFM actually operated as a single business enterprise, thereby making all Georgetown’s employer for the purposes of workers’ compensation law.

When determining whether a corporation is an alter ego, agent, tool or instrumentality of another corporation, the court must examine the substance of the corporate structure rather than its form.7

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Beasley v. Nezi, LLC
227 So. 3d 308 (Louisiana Court of Appeal, 2017)
Southern Capitol Enterprises, Inc. v. Conseco Services, L.L.C.
476 F. Supp. 2d 589 (M.D. Louisiana, 2007)
Arabie Bros. Trucking Co. v. Gautreaux
880 So. 2d 932 (Louisiana Court of Appeal, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
859 So. 2d 36, 2003 WL 21513256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-industrial-fill-materials-inc-lactapp-2003.