NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-1035 consolidated with 12-1036
RALPH COLEMAN, ET AL.
VERSUS
GREGORY LANDRY, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DIV. J, NO. C-20046151 C/W C-20046153 HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J. Gremillion, Judges.
AFFIRMED.
Lee Ann Archer Law Office of Lee A. Archer 1225 Rustic Lane Lake Charles, LA 70605 COUNSEL FOR PLAINTIFFS-APPELLANTS: Ralph Coleman Dejuana Hightower Mark Gerard Artall Attorney at Law 109 S. College Road Lafayette, LA 70503 (337) 233-1777 COUNSEL FOR PLAINTIFFS-APPELLANTS: Ralph Coleman Dejuana Hightower
William Compton Helm Helm & Jacobs, LLC 4336 North Blvd., Suite 200 Baton Rouge, LA 70806 (225) 767-9974 COUNSEL FOR DEFENDANT-APPELLEE: Jerry Groshans d/b/a J&L Trucking Co.
Donald Russell Smith Attorney at Law 6777 Jefferson Hwy Baton Rouge, LA 70806 (225) 926-0770 COUNSEL FOR DEFENDANT-APPELLEE: Progressive Security Insurance Co. PICKETT, Judge.
Ralph Coleman and Dejuana Hightower, acting individually and on behalf of
their incapacitated major daughter, Heather Coleman (collectively referred to
hereinafter as Coleman), appeal the trial court’s grant of summary judgment in
favor of Paul Girard ―Jerry‖ Groshans, doing business as J&L Trucking Company,
and his insurer, Progressive Security Insurance Company (Progressive).
STATEMENT OF THE CASE
On December 18, 2003, Robert Jackson drove his motorcycle eastbound on
U.S. Highway 90. Heather Coleman rode as a passenger on Jackson’s motorcycle.
As Jackson made a right turn into the parking lot of a truck stop, a motorcycle
operated by Gregory Landry collided with the motorcycle operated by Jackson.
Heather Coleman was thrown from the motorcycle and suffered grievous brain
injuries as a result of the collision. She is permanently disabled.
Ralph Coleman and Dejuana Hightower, Heather Coleman’s parents, filed
two separate lawsuits to recover for the damages suffered by Heather and
themselves as a result of the accident. They filed one suit against Jackson and
Landry and their insurers, alleging negligence in the operation of the motorcyles on
the night in question. In a separate suit, they sued Jerry Groshans d/b/a J&L
Trucking Company (Groshans) and his insurer, Progressive, alleging that Jackson
and/or Landry were employees of Groshans, acting in the course and scope of their
employment on the night of the accident, and that the insurance policy issued by
Progressive covered the injuries sustained by Heather Coleman. The suits were
consolidated for trial.
Groshans filed a motion for summary judgment, arguing that Jackson was
never his employee, and therefore, he was not vicariously liable for the injuries
sustained by Heather Coleman. Progressive filed a motion for summary judgment alleging that its insurance policy did not cover the injuries sustained by Heather
Coleman. The trial court granted both motions for summary judgment and
dismissed Groshans and Progressive from the suit. Coleman now appeals.
ASSIGNMENTS OF ERROR
Coleman asserts seven assignments of error:
1. The district court erred in granting defendants’ motions for summary judgment and dismissing plaintiffs’ claims against Progressive Security Insurance Company and Jerry Groshans d/b/a J&L Trucking Company.
2. The district court erred in determining the disputed issue of vicarious liability on summary judgment.
3. The district court erred in weighing the evidence and disregarding the testimony of four witnesses on the disputed issue of vicarious liability.
4. The district court erred in deciding that only the ―first-hand‖ testimony of defendants Jackson and Groshans was admissible: statements of a party are not hearsay [sic].
5. The district court erred in failing to consider the separate issue of liability under Progressive’s insurance policy, which covered employees of Groshans driving ―temporary substitute vehicles.‖
6. The district court erred in failing to recognize that disputed issues of material fact precluded summary judgment upon the employee status of Jackson and Landry under the Progressive policy.
7. The district court erred in failing to recognize that under the ambiguous policy provision regarding ―temporary substitute vehicle,‖ the policy must be construed to cover the motorcycles.
DISCUSSION
In reviewing judgments granting a motion for summary judgment, this court
uses a de novo standard of review. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670
(La. 2/26/08), 977 So.2d 839. Where 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 mover is entitled to
judgment as a matter of law,‖ then summary judgment is appropriate. La.Code
2 Civ.P. art. 966(B). In determining if there is a genuine issue of material fact for
the purposes of a motion for summary judgment, a court does not make credibility
determinations or evaluate the weight of the evidence. Indep. Fire Ins. Co. v.
Sunbeam Corp., 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.
In the second assignment of error, Coleman argues that the trial court
improperly disregarded the deposition of Ralph Coleman and the affidavits of
Dejuana Hightower, Susan Piccione, Jackson’s sister, and Robert M. Jackson,
Jackson’s father. In its reasons for judgment, the trial court clearly stated that it
gave more weight to the ―first-hand‖ testimony Groshans and Jackson. In the
second assignment of error, Coleman argues that the trial court improperly
excluded the deposition of Ralph Coleman and the affidavits of Hightower and
Jackson’s sister and father. We find nothing in the record indicating that this
evidence was ever subject to an objection or excluded by the trial court. In
reviewing the evidence de novo, then, we will review all the evidence in the
record, including these depositions and affidavits.
Coleman argues that Jackson and Landry were on an errand for Groshans
when they were pulling into the truck stop when the accident occurred, therefore
Groshans is vicariously liable for the injuries sustained by Heather Coleman. The
key question, then, is whether Jackson or Landry were employees of Groshans
acting in the course and scope of their employment at the time of the accident.
Jackson and Groshans flatly deny that there was ever a master-servant or
employment relationship. They also both stated that Jackson was not delivering an
alternator for a 1996 Peterbilt tractor to Groshans when the collision occurred.
Groshans testified that he himself was in the process of installing the alternator,
which he had picked up from the parts store, when he heard the motorcycles
approaching and looked up to see the collision. 3 To support the claim that Jackson or Landry were employees of Groshans,
Coleman points to the deposition Ralph Coleman and the affidavits of Hightower,
Piccione, and Robert M. Jackson. Hightower stated that Jackson told her after the
accident that he was delivering an alternator to Groshans at the truck stop, and that
he was supposed to repair Groshans’ truck. She stated that Jackson told her that he
regularly bartered his services to Groshans in exchange for Groshans allowing him
Free access — add to your briefcase to read the full text and ask questions with AI
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-1035 consolidated with 12-1036
RALPH COLEMAN, ET AL.
VERSUS
GREGORY LANDRY, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DIV. J, NO. C-20046151 C/W C-20046153 HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J. Gremillion, Judges.
AFFIRMED.
Lee Ann Archer Law Office of Lee A. Archer 1225 Rustic Lane Lake Charles, LA 70605 COUNSEL FOR PLAINTIFFS-APPELLANTS: Ralph Coleman Dejuana Hightower Mark Gerard Artall Attorney at Law 109 S. College Road Lafayette, LA 70503 (337) 233-1777 COUNSEL FOR PLAINTIFFS-APPELLANTS: Ralph Coleman Dejuana Hightower
William Compton Helm Helm & Jacobs, LLC 4336 North Blvd., Suite 200 Baton Rouge, LA 70806 (225) 767-9974 COUNSEL FOR DEFENDANT-APPELLEE: Jerry Groshans d/b/a J&L Trucking Co.
Donald Russell Smith Attorney at Law 6777 Jefferson Hwy Baton Rouge, LA 70806 (225) 926-0770 COUNSEL FOR DEFENDANT-APPELLEE: Progressive Security Insurance Co. PICKETT, Judge.
Ralph Coleman and Dejuana Hightower, acting individually and on behalf of
their incapacitated major daughter, Heather Coleman (collectively referred to
hereinafter as Coleman), appeal the trial court’s grant of summary judgment in
favor of Paul Girard ―Jerry‖ Groshans, doing business as J&L Trucking Company,
and his insurer, Progressive Security Insurance Company (Progressive).
STATEMENT OF THE CASE
On December 18, 2003, Robert Jackson drove his motorcycle eastbound on
U.S. Highway 90. Heather Coleman rode as a passenger on Jackson’s motorcycle.
As Jackson made a right turn into the parking lot of a truck stop, a motorcycle
operated by Gregory Landry collided with the motorcycle operated by Jackson.
Heather Coleman was thrown from the motorcycle and suffered grievous brain
injuries as a result of the collision. She is permanently disabled.
Ralph Coleman and Dejuana Hightower, Heather Coleman’s parents, filed
two separate lawsuits to recover for the damages suffered by Heather and
themselves as a result of the accident. They filed one suit against Jackson and
Landry and their insurers, alleging negligence in the operation of the motorcyles on
the night in question. In a separate suit, they sued Jerry Groshans d/b/a J&L
Trucking Company (Groshans) and his insurer, Progressive, alleging that Jackson
and/or Landry were employees of Groshans, acting in the course and scope of their
employment on the night of the accident, and that the insurance policy issued by
Progressive covered the injuries sustained by Heather Coleman. The suits were
consolidated for trial.
Groshans filed a motion for summary judgment, arguing that Jackson was
never his employee, and therefore, he was not vicariously liable for the injuries
sustained by Heather Coleman. Progressive filed a motion for summary judgment alleging that its insurance policy did not cover the injuries sustained by Heather
Coleman. The trial court granted both motions for summary judgment and
dismissed Groshans and Progressive from the suit. Coleman now appeals.
ASSIGNMENTS OF ERROR
Coleman asserts seven assignments of error:
1. The district court erred in granting defendants’ motions for summary judgment and dismissing plaintiffs’ claims against Progressive Security Insurance Company and Jerry Groshans d/b/a J&L Trucking Company.
2. The district court erred in determining the disputed issue of vicarious liability on summary judgment.
3. The district court erred in weighing the evidence and disregarding the testimony of four witnesses on the disputed issue of vicarious liability.
4. The district court erred in deciding that only the ―first-hand‖ testimony of defendants Jackson and Groshans was admissible: statements of a party are not hearsay [sic].
5. The district court erred in failing to consider the separate issue of liability under Progressive’s insurance policy, which covered employees of Groshans driving ―temporary substitute vehicles.‖
6. The district court erred in failing to recognize that disputed issues of material fact precluded summary judgment upon the employee status of Jackson and Landry under the Progressive policy.
7. The district court erred in failing to recognize that under the ambiguous policy provision regarding ―temporary substitute vehicle,‖ the policy must be construed to cover the motorcycles.
DISCUSSION
In reviewing judgments granting a motion for summary judgment, this court
uses a de novo standard of review. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670
(La. 2/26/08), 977 So.2d 839. Where 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 mover is entitled to
judgment as a matter of law,‖ then summary judgment is appropriate. La.Code
2 Civ.P. art. 966(B). In determining if there is a genuine issue of material fact for
the purposes of a motion for summary judgment, a court does not make credibility
determinations or evaluate the weight of the evidence. Indep. Fire Ins. Co. v.
Sunbeam Corp., 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.
In the second assignment of error, Coleman argues that the trial court
improperly disregarded the deposition of Ralph Coleman and the affidavits of
Dejuana Hightower, Susan Piccione, Jackson’s sister, and Robert M. Jackson,
Jackson’s father. In its reasons for judgment, the trial court clearly stated that it
gave more weight to the ―first-hand‖ testimony Groshans and Jackson. In the
second assignment of error, Coleman argues that the trial court improperly
excluded the deposition of Ralph Coleman and the affidavits of Hightower and
Jackson’s sister and father. We find nothing in the record indicating that this
evidence was ever subject to an objection or excluded by the trial court. In
reviewing the evidence de novo, then, we will review all the evidence in the
record, including these depositions and affidavits.
Coleman argues that Jackson and Landry were on an errand for Groshans
when they were pulling into the truck stop when the accident occurred, therefore
Groshans is vicariously liable for the injuries sustained by Heather Coleman. The
key question, then, is whether Jackson or Landry were employees of Groshans
acting in the course and scope of their employment at the time of the accident.
Jackson and Groshans flatly deny that there was ever a master-servant or
employment relationship. They also both stated that Jackson was not delivering an
alternator for a 1996 Peterbilt tractor to Groshans when the collision occurred.
Groshans testified that he himself was in the process of installing the alternator,
which he had picked up from the parts store, when he heard the motorcycles
approaching and looked up to see the collision. 3 To support the claim that Jackson or Landry were employees of Groshans,
Coleman points to the deposition Ralph Coleman and the affidavits of Hightower,
Piccione, and Robert M. Jackson. Hightower stated that Jackson told her after the
accident that he was delivering an alternator to Groshans at the truck stop, and that
he was supposed to repair Groshans’ truck. She stated that Jackson told her that he
regularly bartered his services to Groshans in exchange for Groshans allowing him
to use his shop. Ralph Coleman testified in his deposition that Jackson told him
they were on way to the truck stop to deliver an alternator or repair Groshans’
truck. In virtually identical language, both Jackson’s sister and father state that
Jackson told them that he was delivering a part to Groshans at the time of the
accident.
Clearly there is a disputed issue of fact about whether Jackson was
delivering an alternator at the time of the accident. The critical, material issue of
fact that Coleman must provide some evidence of, however, is whether Jackson or
Landry were employees of Groshans at the time of the accident. To determine
whether an employee-employer relationship exists, the supreme court has held that
the most important issue to be considered is the right of control and supervision
over an individual. Savoie v. Fireman’s Fund Ins. Co., 347 So.2d 188 (La.1977).
―Factors to be considered in assessing the right of control are the selection and
engagement of the worker, the payment of wages and the power of control and
dismissal.‖ Id. at 191.
We find that even if Jackson or Landry was delivering an alternator to
Groshans, there is no evidence in the record that either of them was an employee or
servant of Groshans. The evidence is clear that Jackson and Groshans were long-
time friends. Groshans allowed Jackson to use space in his shop to tinker with his
motorcycles and store a welding machine and a drill press. Jackson occasionally 4 did small jobs for Groshans personally, but Jackson was never paid for his
services. Groshans barely knew Landry. There is no scintilla of evidence that
Groshans exercised any control over Jackson or Landry. We find that even if
Jackson or Landry was delivering an alternator to Groshans at the time of the
accident, it was not as an employee but as a friend doing another friend a favor.
The trial court did not err in granting summary judgment in favor of Groshans and
dismissing Coleman’s claims.
Likewise the trial court did not err in granting summary judgment in favor of
Progressive. In order for the Progressive policy issued to Groshans to provide
coverage, the first inquiry is whether Jackson or Landry were employees of
Groshans. As we have determined that they were not employees, we find no
coverage.
CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are
assessed to Ralph Coleman and Dejuana Hightower.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.