STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2021 CA 1462
MURPHY J. PAINTER, SR.
PVERSUS DUSTIN CLOUATRE, HUGHES INSURANCE SERVICES, LLC, PELICAN POST NEWS, LLC, WADE PETITE, RICKY BABIN, ABC INSURANCE COMPANY, CLINT COINTMENT
Judgment Rendered: JUN 16 2022
On appeal from the Twenty -Third Judicial District Court In and for the Parish of Ascension State of Louisiana Docket Number 129, 894
Honorable A. Bruce Simpson,' Judge Presiding
Kim Segura Landry Counsel for Plaintiff/Appellant Gonzales, LA Murphy J. Painter, Sr.
Brandon K. Black Counsel for Defendant/Appellee C. Parker Kilgore Hughes Insurance Services, LLC Baton Rouge, LA
BEFORE: GUIDRY, CHUTZ, AND PENZATO, JJ.
1 Judge Simpson was appointed as ad hoc judge to preside over the case.
ChUt2- /T Call r GUIDRY, J.
The plaintiff appeals from a trial court judgment sustaining the defendant' s
peremptory exception raising the objection of no cause of action, and dismissing
his claims against the defendant with prejudice. For the reasons that follow, we
affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
On or about October 19, 2020, plaintiff, Murphy Painter, Sr., filed a petition
for damages, naming as defendants Dustin Clouatre, Wade Petite, Clint Cointment,
and Hughes Insurance Services, LLC ( Hughes Insurance), among others.2 Painter
alleged causes of action including defamation and vicarious liability. Specifically,
Painter alleged that as a part of a conspiracy to defame him, " Petite and Clouatre
conspired to hide the true substance of [Painter' s] statements in order to knowingly
make false claims that [ Painter] was somehow involved in a cover- up of the rapes
of 5 twelve year old girls ...." Painter further alleged that Hughes Insurance, the
employer of Clouatre, was liable " in solido" with Clouatre and Petite.
In response, on December 1, 2020, Hughes Insurance filed an exception of
no cause of action.' Therein, Hughes Insurance argued that Painter had " failed to
state a cause of action arising out of the ... recording ... against Hughes Insurance
based on vicarious liability." The exception came before the trial court on June 3,
2021. After taking the matter under advisement, the trial court sustained the
exception of no cause of action. A judgment to that effect was signed on July 5,
2021. Painter now appeals.
2 Plaintiff Painter filed an amended petition on November 11, 2020.
3 Hughes Insurance also filed an exception of prescription, which was denied by the trial court and is not before us in this appeal.
K DISCUSSION
No Cause of Action
The purpose of the peremptory exception raising the objection of no cause of
action is to test the legal sufficiency of a pleading by determining whether the law
affords a remedy on the facts alleged in the pleading. Palowsky v. Cork, 19- 0148,
p. 5 ( La. App. 1st Cir. 5/ 20/ 20), 304 So. 3d 867, 872. The exception is triable on
the face of the pleading, and for the purpose of determining the issues raised by the
exception, the well -pleaded facts in the pleading must be accepted as true. Carr v.
Sanderson Farm, Inc., 15- 0953, p. 4 ( La. App. 1st Cir. 2/ 17/ 16), 189 So. 3d 450,
454.
In ruling on a peremptory exception raising the objection of no cause of
action, the court must determine whether the law affords any relief to the claimant
if the factual allegations in the pleading were proven at trial. Frig on - v. Universal
Pictures, Inc., 17- 0993, p. 6 ( La. App. 1st Cir. 6/ 21/ 18), 255 So. 3d 591, 596, writ
denied, 18- 1868 ( La. 1/ 18/ 19), 262 So. 3d 896. A petition should not be dismissed
for failure to state a cause of action unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of any claim. Any doubts are resolved in favor
of the sufficiency of the petition. Palowsky, 19- 0148 at p. 5, 304 So. 3d at 872.
Louisiana has chosen a system of fact pleading. Therefore, it is not
necessary for a plaintiff to plead the theory of his case in the petition. However,
the mere conclusions of plaintiff unsupported by facts do not set forth a cause of
action. Ramey v. DeCaire, 03- 1299, p. 7 ( La. 3/ 19/ 04), 869 So. 2d 114, 118. The
burden of demonstrating that the petition states no cause of action is on the mover.
Ramey, 03- 1229 at p. 7, 869 So. 2d at 119. In reviewing the trial court' s ruling
sustaining an exception raising the objection of no cause of action, appellate courts
conduct a de novo review, because the exception raises a question of law, and the
3 trial court' s decision is based solely on the sufficiency of the petition. Frigon, 17-
0993 at p. 7, 255 So. 3d at 597.
Further, an employer is liable for the torts committed by his employee if, at
the time, the employee was acting within the course and scope of his employment.
Baumeister v. Plunkett, 95- 2270, P. 3 ( La. 5/ 21/ 96), 673 So. 2d 994, 996. The two
terms are not synonymous. The course of employment test refers to the time and
place. The scope of employment test examines the employment- related risk of
injury. Benoit v. Capitol Manufacturing Company, 617 So. 2d 477, 479 ( La.
1993).
In order for an employer to be vicariously liable for the tortious acts of its
employees, the employee' s tortious conduct must be so closely connected in time,
place, and causation to his employment duties as to be regarded as 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 interest.
Richard v. Hall, 03- 1488, p. 6 ( La. 4/ 23/ 04), 874 So. 2d 131, 138; Ellender v. Neff
Rental, Inc., 06- 2005, p. 5 ( La. App. 1st Cir. 6/ 15/ 07), 965 So. 2d 898, 901. In an
analysis of vicarious liability for an employee' s tortious acts, the court must
consider more than simply whether the employee was in the course and scope of
employment at the time of the incident. An employer is not vicariously liable
merely because his employee commits an intentional tort on the business premises
during working hours. Vicarious liability will attach in such a case only if the
employee is acting within the ambit of his assigned duties and also in furtherance
of his employer' s objective. Baumeister, 95- 2270 at pp. 3- 4, 673 So. 2d at 996.
In determining whether vicarious liability applies, courts consider the
following factors: ( 1) whether the tortious act was primarily employment rooted,
2) whether the act was reasonably incidental to the performance of the employee' s
duties, ( 3) whether the act occurred on the employer' s premises, and ( 4) whether
F the act occurred during the hours of employment. Baumeister, 95- 2270 at p. 4, 673
So. 2d at 996- 997; see also LeBrane v.
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2021 CA 1462
MURPHY J. PAINTER, SR.
PVERSUS DUSTIN CLOUATRE, HUGHES INSURANCE SERVICES, LLC, PELICAN POST NEWS, LLC, WADE PETITE, RICKY BABIN, ABC INSURANCE COMPANY, CLINT COINTMENT
Judgment Rendered: JUN 16 2022
On appeal from the Twenty -Third Judicial District Court In and for the Parish of Ascension State of Louisiana Docket Number 129, 894
Honorable A. Bruce Simpson,' Judge Presiding
Kim Segura Landry Counsel for Plaintiff/Appellant Gonzales, LA Murphy J. Painter, Sr.
Brandon K. Black Counsel for Defendant/Appellee C. Parker Kilgore Hughes Insurance Services, LLC Baton Rouge, LA
BEFORE: GUIDRY, CHUTZ, AND PENZATO, JJ.
1 Judge Simpson was appointed as ad hoc judge to preside over the case.
ChUt2- /T Call r GUIDRY, J.
The plaintiff appeals from a trial court judgment sustaining the defendant' s
peremptory exception raising the objection of no cause of action, and dismissing
his claims against the defendant with prejudice. For the reasons that follow, we
affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
On or about October 19, 2020, plaintiff, Murphy Painter, Sr., filed a petition
for damages, naming as defendants Dustin Clouatre, Wade Petite, Clint Cointment,
and Hughes Insurance Services, LLC ( Hughes Insurance), among others.2 Painter
alleged causes of action including defamation and vicarious liability. Specifically,
Painter alleged that as a part of a conspiracy to defame him, " Petite and Clouatre
conspired to hide the true substance of [Painter' s] statements in order to knowingly
make false claims that [ Painter] was somehow involved in a cover- up of the rapes
of 5 twelve year old girls ...." Painter further alleged that Hughes Insurance, the
employer of Clouatre, was liable " in solido" with Clouatre and Petite.
In response, on December 1, 2020, Hughes Insurance filed an exception of
no cause of action.' Therein, Hughes Insurance argued that Painter had " failed to
state a cause of action arising out of the ... recording ... against Hughes Insurance
based on vicarious liability." The exception came before the trial court on June 3,
2021. After taking the matter under advisement, the trial court sustained the
exception of no cause of action. A judgment to that effect was signed on July 5,
2021. Painter now appeals.
2 Plaintiff Painter filed an amended petition on November 11, 2020.
3 Hughes Insurance also filed an exception of prescription, which was denied by the trial court and is not before us in this appeal.
K DISCUSSION
No Cause of Action
The purpose of the peremptory exception raising the objection of no cause of
action is to test the legal sufficiency of a pleading by determining whether the law
affords a remedy on the facts alleged in the pleading. Palowsky v. Cork, 19- 0148,
p. 5 ( La. App. 1st Cir. 5/ 20/ 20), 304 So. 3d 867, 872. The exception is triable on
the face of the pleading, and for the purpose of determining the issues raised by the
exception, the well -pleaded facts in the pleading must be accepted as true. Carr v.
Sanderson Farm, Inc., 15- 0953, p. 4 ( La. App. 1st Cir. 2/ 17/ 16), 189 So. 3d 450,
454.
In ruling on a peremptory exception raising the objection of no cause of
action, the court must determine whether the law affords any relief to the claimant
if the factual allegations in the pleading were proven at trial. Frig on - v. Universal
Pictures, Inc., 17- 0993, p. 6 ( La. App. 1st Cir. 6/ 21/ 18), 255 So. 3d 591, 596, writ
denied, 18- 1868 ( La. 1/ 18/ 19), 262 So. 3d 896. A petition should not be dismissed
for failure to state a cause of action unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of any claim. Any doubts are resolved in favor
of the sufficiency of the petition. Palowsky, 19- 0148 at p. 5, 304 So. 3d at 872.
Louisiana has chosen a system of fact pleading. Therefore, it is not
necessary for a plaintiff to plead the theory of his case in the petition. However,
the mere conclusions of plaintiff unsupported by facts do not set forth a cause of
action. Ramey v. DeCaire, 03- 1299, p. 7 ( La. 3/ 19/ 04), 869 So. 2d 114, 118. The
burden of demonstrating that the petition states no cause of action is on the mover.
Ramey, 03- 1229 at p. 7, 869 So. 2d at 119. In reviewing the trial court' s ruling
sustaining an exception raising the objection of no cause of action, appellate courts
conduct a de novo review, because the exception raises a question of law, and the
3 trial court' s decision is based solely on the sufficiency of the petition. Frigon, 17-
0993 at p. 7, 255 So. 3d at 597.
Further, an employer is liable for the torts committed by his employee if, at
the time, the employee was acting within the course and scope of his employment.
Baumeister v. Plunkett, 95- 2270, P. 3 ( La. 5/ 21/ 96), 673 So. 2d 994, 996. The two
terms are not synonymous. The course of employment test refers to the time and
place. The scope of employment test examines the employment- related risk of
injury. Benoit v. Capitol Manufacturing Company, 617 So. 2d 477, 479 ( La.
1993).
In order for an employer to be vicariously liable for the tortious acts of its
employees, the employee' s tortious conduct must be so closely connected in time,
place, and causation to his employment duties as to be regarded as 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 interest.
Richard v. Hall, 03- 1488, p. 6 ( La. 4/ 23/ 04), 874 So. 2d 131, 138; Ellender v. Neff
Rental, Inc., 06- 2005, p. 5 ( La. App. 1st Cir. 6/ 15/ 07), 965 So. 2d 898, 901. In an
analysis of vicarious liability for an employee' s tortious acts, the court must
consider more than simply whether the employee was in the course and scope of
employment at the time of the incident. An employer is not vicariously liable
merely because his employee commits an intentional tort on the business premises
during working hours. Vicarious liability will attach in such a case only if the
employee is acting within the ambit of his assigned duties and also in furtherance
of his employer' s objective. Baumeister, 95- 2270 at pp. 3- 4, 673 So. 2d at 996.
In determining whether vicarious liability applies, courts consider the
following factors: ( 1) whether the tortious act was primarily employment rooted,
2) whether the act was reasonably incidental to the performance of the employee' s
duties, ( 3) whether the act occurred on the employer' s premises, and ( 4) whether
F the act occurred during the hours of employment. Baumeister, 95- 2270 at p. 4, 673
So. 2d at 996- 997; see also LeBrane v. Lewis, 292 So. 2d 216, 218 ( La. 1974).
However, this does not mean that all four factors must be met before liability may
be found. The particular facts of each case must be analyzed to determine whether
the employee' s tortious conduct was within the course and scope of his
employment. Varnado v. Department of Employment and Training, 95- 0787 ( La.
App. 1st Cir. 6/ 28/ 96), 687 So. 2d 1013, 1041, writ denied, 97- 0312 ( La. 3/ 27/ 97),
692 So. 2d 394.
In the instant matter, plaintiff Painter' s petition asserts that Hughes
Insurance is vicariously liable to Painter for the actions of its employee, Clouatre.
Painter' s petition states, in relevant part: Clouatre wanted to discuss with Painter
the opportunity for Hughes Insurance to obtain some insurance contracts with
Ascension Parish Government; Clouatre was an employee of Hughes Insurance;
Clouatre sells business and commercial insurance for Hughes Insurance; Clouatre
scheduled a meeting with Painter on the premises of Hughes Insurance during
business hours; during the meeting between Clouatre and Painter, " Clouatre read
from notes and questions he had written to elicit conversation on specific topics;"
Clouatre provided a recording of the meeting to Petite; and Petite, Clouatre, and
Cointment manipulated the recording. Painter also asserts, through his petition,
that " Clouatre, while in the course and scope of his employment with [ Hughes
Insurance], actively recorded the conversation ... for the sole purpose of providing
the recording ... to injure [ Painter] for the benefit of Cointment' s campaign to be
elected Parish President, and to insure [ Hughes Insurance] received lucrative
insurance contracts ...."
Having reviewed the factual allegations contained in the petition, we
conclude that the plaintiff herein has failed to plead facts sufficient to set forth a
cause of action for vicarious liability against Hughes Insurance. The facts set forth in Painter' s petition, which are accepted as true for purposes of our consideration
of the exception raising the objection of no cause of action, allege that the conduct
complained of occurred on the employer' s premises, and during the employee' s
working hours. However, no facts are alleged to sufficiently show that Clouatre' s
conduct of reading from " notes and questions he had written to elicit conversation"
and recording that conversation for manipulation, was reasonably incidental to or
related to the performance of his employment duties as an insurance sales agent
with Hughes Insurance; the petition fails to allege facts sufficient to show that
Clouatre was acting within the realm of his assigned employment duties at the time
the conduct occurred.
Simply put, there are no facts alleged in the petition that would support a
finding that Clouatre' s conduct was caused by his employment duties and
primarily employment rooted, as compared with conduct motivated by purely
personal considerations. We, thus, find no error in the trial court' s judgment
sustaining the exception raising the objection of no cause of action.
Opportunity to Amend Petition
Louisiana Code of Civil Procedure article 934 provides that if the grounds of
the objection raised through a peremptory exception may be removed by
amendment of the petition, the judgment sustaining the exception shall order such
amendment within the delay allowed by the court. If the grounds of the objection
cannot be so removed, or if the plaintiff fails to comply with the order to amend,
the action, claim, demand, issue, or theory shall be dismissed. La. C.C. P. art. 934.
The decision to allow amendment of a pleading to cure the grounds for a
peremptory exception is within the discretion of the trial court. Palowsky, 19- 0148
at pp. 10- 11, 304 So. 3d at 875. However, because we are not prepared to find, as
a matter of law, that the basis for the objection cannot be removed by an
amendment relative to the vicarious liability claim, we will remand this matter. In
CO accordance with La. C. C. P. art. 934, the plaintiff may amend his petition to remove
the grounds of the objection, if he can.
CONCLUSION
For the foregoing reasons, we affirm the portion of the trial court' s July 5,
2021 judgment sustaining the exception raising the objection of no cause of action
filed by Hughes Insurance Services, LLC. However, we reverse that portion of the
trial court' s judgment dismissing with prejudice plaintiff' s claims against Hughes
Insurance Services, LLC and remand this matter to the trial court to allow plaintiff
an opportunity to amend his petition within a delay deemed reasonable by the trial
court. All costs of this appeal are assessed to the plaintiff/appellant, Murphy
Painter, Sr.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.