Nicholas J. Quatroy Versus Andrew Michael Thornton, Perrone & Sons, L.L.C. and Allstate Property and Casualty Insurance Company

CourtLouisiana Court of Appeal
DecidedSeptember 28, 2022
Docket21-CA-732
StatusUnknown

This text of Nicholas J. Quatroy Versus Andrew Michael Thornton, Perrone & Sons, L.L.C. and Allstate Property and Casualty Insurance Company (Nicholas J. Quatroy Versus Andrew Michael Thornton, Perrone & Sons, L.L.C. and Allstate Property and Casualty Insurance Company) 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
Nicholas J. Quatroy Versus Andrew Michael Thornton, Perrone & Sons, L.L.C. and Allstate Property and Casualty Insurance Company, (La. Ct. App. 2022).

Opinion

NICHOLAS J. QUATROY NO. 21-CA-732

VERSUS FIFTH CIRCUIT

ANDREW MICHAEL THORNTON, PERRONE COURT OF APPEAL & SONS, L.L.C. AND ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 793-735, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

September 28, 2022

SUSAN M. CHEHARDY CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

AFFIRMED SMC JGG

DISSENTS WITH REASONS FHW COUNSEL FOR PLAINTIFF/APPELLANT, NICHOLAS J. QUATROY Thomas E. Loehn

COUNSEL FOR DEFENDANT/APPELLEE, PERRONE & SONS, L.L.C. Matthew J. Hamilton CHEHARDY, C.J.

This appeal arises from an automobile accident in which the plaintiff,

Nicholas Quatroy, contends that the defendant, Michael Andrew Thornton, was in

the course and scope of his employment at the time of the accident and therefore

Thornton’s employer, Perrone & Sons, LLC, may be held vicariously liable for

plaintiff’s damages. For the reasons that follow, we affirm the trial court’s ruling

granting Perrone’s motion for summary judgment and dismissing with prejudice

plaintiff’s vicarious liability claims against it.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On February 1, 2019 at approximately 8:45 a.m., plaintiff Quatroy was

involved in an automobile accident with defendant Thornton when Thornton was

on his way to a company sales meeting at his employer’s warehouse in Metairie.

Law enforcement issued a ticket to Thornton for disregarding a stop sign. Thornton

paid the ticket and has acknowledged his responsibility for causing the accident.

The underlying facts regarding Thornton’s employment responsibilities are

essentially undisputed. Thornton works primarily from his house as an outside

sales representative, working on commission only. He interacts with his customers

via phone calls, texts, and emails approximately 95% of the time and sees his

customers in person only about 5% of the time. He is not required to “clock in” for

work. Thornton has a sales manager but he does not have to notify anyone if he

visits a customer. On the morning of the accident, he left his home to drive to the

Perrone warehouse approximately five minutes away to attend the sales meeting,

which usually occurs on the first Friday of every month and is held at the Perrone

warehouse about 70% of the time. The sales manager encouraged all salespersons

to attend, but Thornton explained that he was not reprimanded for failing to attend.

In his six-and-a-half years with the company, Thornton stated that he may have

missed five or six meetings, without any adverse consequences. In answers to

21-CA-732 1 interrogatories, Perrone indicated that all of the sales staff, including Thornton, is

required to attend the monthly sales meeting. Thornton explained that some of his

co-workers saw the accident when they were on their way to the meeting that

morning.

Perrone does not provide a company vehicle for Thornton; Thornton uses his

personal vehicle when needed for work-related travel. Perrone does not reimburse

Thornton for mileage but provides a gas credit card to use when he is visiting

customers. Perrone’s records show that Thornton last used the gas card seven days

before the accident at issue.

On the morning of the accident, Thornton called his boss before leaving his

house to let his boss know that he was on his way, and to ask whether he should

bring donuts to the meeting. His boss indicated that it was not necessary to bring

donuts. Thornton then traveled to the Perrone warehouse in his own truck, making

no stops and without talking on the phone. The day before the accident, Thornton

had placed a magnetic Perrone & Sons sign on his truck door to make a delivery to

a customer. The magnet remained on his truck at the time of the accident, because

Thornton had forgotten to remove it after the previous day’s delivery.

Plaintiff filed suit against Thornton, Thornton’s personal auto liability

insurer, and Thornton’s employer, Perrone & Sons, L.L.C. Plaintiff settled his

claim against Thornton and Thornton’s personal auto insurer but reserved his right

to pursue his vicarious liability claims against Perrone.

Perrone moved for summary judgment arguing that Thornton was not in the

course and scope of employment at the time of the accident, thus, it could not be

held vicariously liability as a matter of law. Plaintiff opposed Perrone’s motion and

filed his own motion for summary judgment, arguing that Perrone should be held

vicariously liable. Safe Light Group, Inc., plaintiff’s employer who paid worker’s

compensation benefits to plaintiff as a result of the accident, also opposed

21-CA-732 2 Perrone’s motion for summary judgment. The trial court granted Perrone’s motion

and dismissed plaintiff’s claims against Perrone with prejudice. Plaintiff now

appeals that ruling.

LAW AND ANALYSIS

Appellate courts review a judgment granting or denying a motion for

summary judgment de novo. Robinson v. Otis Condominium Ass’n, Inc., 20-359

(La. App. 5 Cir. 2/3/21), 315 So.3d 356, 361, writ denied, 21-343 (La. 4/27/21),

314 So.3d 837. Under this standard, we use the same criteria as the trial court in

determining if summary judgment is appropriate: whether there is a genuine issue

of material fact and whether the mover is entitled to judgment as a matter of

law. Id.

A motion for 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. La.

C.C.P. art. 966 A(3). The burden of proof rests with the mover. La. C.C.P. art. 966

D(1). Nevertheless, if the mover will not bear the burden of proof at trial on the

issue that is 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. Id. The burden is 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. Id.

In general, summary judgment is appropriate when all the relevant facts are

marshaled before the court, the facts are undisputed, and the only issue is the

ultimate conclusion to be drawn from the applicable law. Hogg v. Chevron USA,

Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 999 (citing Smith v. Our Lady of the Lake

21-CA-732 3 Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 752). As such, determining

whether Thornton was in the course and scope of his employment based on the

undisputed facts is an issue of law appropriate for summary judgment.

An employer is answerable for the damage occasioned by his servant in the

exercise of the functions in which the servant is employed. La. C.C. art. 2320. For

an employer to be held vicariously liable for the actions of an employee under La.

C.C. art. 2320, the plaintiff must show that (1) an employer-employee relationship

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Nicholas J. Quatroy Versus Andrew Michael Thornton, Perrone & Sons, L.L.C. and Allstate Property and Casualty Insurance Company, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholas-j-quatroy-versus-andrew-michael-thornton-perrone-sons-llc-lactapp-2022.