REGINALD GREEN, ET AL. * NO. 2022-C-0413
VERSUS * COURT OF APPEAL FRANKLIN ELIEZER * GARCIA-VICTOR, ET AL. FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00905, DIVISION “F-14” Honorable Jennifer M Medley, ****** Judge Edwin A. Lombard ****** (Court composed of Chief Judge Terri F. Love, Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins)
MADRO BANDARIES MADRO BANDARIES, PLC POST OFFICE BOX 56458 2nd Second Street New Orleans, LA 70156 -AND- IRAJ. MIDDLEBERG YVETTE D'AUNOY MARIANNE GARVEY MIDDLEBERG RIDDLE GROUP 909 Poydras Street, Suite 1400 New Orleans. LA 70112
COUNSEL FOR ATTORNEYS FOR PLAINTIFFS/RESPONDENTS
JAMES M. GARNER DEBRA J. FISCHMAN MELISSA R. HARRIS SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, 28th Floor New Orleans, Louisiana 70112
COUNSEL FOR DEFENDANTS/APPLICANTS, UBER TECHNOLOGIES, INC., AND RASIER, LLC
WRIT GRANTED; RELIEF DENIED SEPTEMBER 7, 2022 EAL TFL The Relators, Uber Technologies, Inc., and Rasier, LLC., seek review of the SCJ May 16, 2022 ruling of the district court, denying their peremptory exceptions of
no cause of action on the general tort claim, breach of duty of good faith and fair
dealing claim and vicarious liability claim of the Respondents, plaintiffs Reginald
Green, et al. Pursuant to our de novo review, we find that the district court district
court did not err in denying the exception of no cause of action as to the
Respondents’ vicarious liability claim. Therefore, under Waiters v. deVille, 19-
1048, (La. App. 4 Cir. 4/22/20), 299 So. 3d 728, we deny the relief sought by the
Relators.
FACTS AND PROCEDURAL HISTORY
In 2016, the Respondents, who are taxi cab drivers in New Orleans, filed suit
against individual Uber drivers, alleging that said drivers violated the Louisiana
Unfair Trade Practices Act (”LUTPA”) because they were transporting passengers
for hire or fee without having a “class D” chauffer’s driver’s license. The
Respondents later filed a Fourth Supplemental and Restated Petition in 2021,
1 adding the Relators as defendants.1 The Respondents raised the following
allegations against the Relators in their petition:
1. the Relators committed LUTPA violations by conspiring with the other defendants and the City of New Orleans to implement a method or plan to compete unfairly by violating the city ordinances;
2. the Relators committed general tort violations;
3. the Relators breached the duty of good faith and fair dealing; and,
4. the Relators are solidarily liable with the other defendants as conspirators, or in the alternative, vicariously liable “as agents or mandates of one another,” or in the alternative, “as general partners in a partnership,” or in the alternative, as employers of the individual drivers.
The Relators filed peremptory and dilatory exceptions asserting: the petition
should be dismissed entirely for the failure to request service within ninety days of
filing; the LUTPA claims against the Relators were perempted; and an exception
of no cause of action on the LUTPA, conspiracy, general tort, and breach of good
faith and fair dealing claims.2
Following oral argument, the court issued a written judgment on May 16,
2022, granting in part and denying in part the Relators’ exceptions. The district
court granted the Relators’ exception of peremption regarding the LUTPA claim,
as well as the exception of no cause of action on the conspiracy claim.3 However,
1 “Defendants” as used in the remainder of this opinion shall refer to the Uber drivers only, and
excludes inclusion of the Relators. 2 The Relators also asserted dilatory exceptions of improper cumulation of actions, and vagueness, ambiguity, and nonconformity, which were denied. Those rulings are not at issue in the instant writ application. 3 In the Respondents’ opposition to the Relators exceptions filed in the district court, they admitted that they had not alleged a separate, stand-alone claim of conspiracy, but had instead
3 the court denied the: exception of insufficient service of process; exception of no
cause of action regarding the Relators’ vicarious liability for the acts of the
Defendants; the exception of no cause of action on the general tort claim, and the
exception of no cause of action for breaching the duty of good faith and fair
dealing. Lastly, the district court found that the exception of no cause of action on
the LUTPA claim was moot as to the Relators because it was perempted.
After filing their Notice of Intent, the Relators timely filed the instant writ
application. The Relators, as noted above, seek review of the district court’s denial
of their exceptions of no cause of action regarding the Respondents’ vicarious
liability claim, general tort claim, and breach of duty of good faith and fair dealing
claim
STANDARD OF REVIEW
This Court has explained that “[a]n exception of no cause of action tests ‘the
legal sufficiency of the petition by determining whether the law affords a remedy
on the facts alleged in the pleading.’” Henderson v. State Farm Mut. Auto. Ins. Co.,
21-0654, pp. 4-5 (La. App. 4 Cir. 12/17/21), 335 So. 3d 349, 353 (quoting Green v.
Garcia-Victor, 17-0695, p. 4 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453
[citations omitted]). Moreover, courts can only review the petition, amendments to
the petition and any documents attached thereto in deciding an exception of no
cause of action. Green, 17-0695, p. 5, 248 So.3d at 453 (quoting 2400 Canal, LLC
v. Bd. of Sup'rs of Louisiana State Univ. Agr. & Mech. Coll., 12-0220, p. 7 (La.
App. 4 Cir. 11/7/12), 105 So.3d 819, 825. “The grant of the exception of no cause
of action is proper when, assuming all well pleaded factual allegations of the
alleged a conspiracy merely to establish solidary liability for the LUTPA violation between the Relators and the other defendants under La. Civ. Code art. 2324.
4 petition and any annexed documents are true, the plaintiff is not entitled to the
relief he seeks as a matter of law.” Id. However, “any doubt must be resolved in
the plaintiffs’ favor.” Id.
Appellate courts review rulings on exceptions of no cause of action using the
de novo standard of review because exceptions of no cause of action present legal
questions. Henderson, 21-0654, p. 5, 335 So. 3d at 353 (citing Tickle v. Ballay, 18-
0408, p. 4 (La. App. 4 Cir. 11/14/18), 259 So.3d 435, 438).
VICARIOUS LIABIILITY
As stated above, the Respondents raised a vicarious liability claim, which
they pled in the alternative to their LUTPA claims. The record reflects that the
Respondents admitted in their second and third supplemental and restated petitions
and at the hearing on the exceptions at issue that the Defendants were independent
contractors, but they further alleged that the Relators exercised control over the
Defendants’ methods of operation.
Under Louisiana law, a principal is not liable for the offenses committed by
an independent contractor while performing contractual duties. Allstate Ins. Co. v.
Veninata, 06-1641, pp. 6-7 (La. App. 4 Cir. 11/7/07), 971 So.2d 420, 425.
However, two exceptions exist to this rule: (1) an owner may not avoid liability for
inherently or intrinsically dangerous work by an independent contractor; (2) an
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REGINALD GREEN, ET AL. * NO. 2022-C-0413
VERSUS * COURT OF APPEAL FRANKLIN ELIEZER * GARCIA-VICTOR, ET AL. FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00905, DIVISION “F-14” Honorable Jennifer M Medley, ****** Judge Edwin A. Lombard ****** (Court composed of Chief Judge Terri F. Love, Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins)
MADRO BANDARIES MADRO BANDARIES, PLC POST OFFICE BOX 56458 2nd Second Street New Orleans, LA 70156 -AND- IRAJ. MIDDLEBERG YVETTE D'AUNOY MARIANNE GARVEY MIDDLEBERG RIDDLE GROUP 909 Poydras Street, Suite 1400 New Orleans. LA 70112
COUNSEL FOR ATTORNEYS FOR PLAINTIFFS/RESPONDENTS
JAMES M. GARNER DEBRA J. FISCHMAN MELISSA R. HARRIS SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, 28th Floor New Orleans, Louisiana 70112
COUNSEL FOR DEFENDANTS/APPLICANTS, UBER TECHNOLOGIES, INC., AND RASIER, LLC
WRIT GRANTED; RELIEF DENIED SEPTEMBER 7, 2022 EAL TFL The Relators, Uber Technologies, Inc., and Rasier, LLC., seek review of the SCJ May 16, 2022 ruling of the district court, denying their peremptory exceptions of
no cause of action on the general tort claim, breach of duty of good faith and fair
dealing claim and vicarious liability claim of the Respondents, plaintiffs Reginald
Green, et al. Pursuant to our de novo review, we find that the district court district
court did not err in denying the exception of no cause of action as to the
Respondents’ vicarious liability claim. Therefore, under Waiters v. deVille, 19-
1048, (La. App. 4 Cir. 4/22/20), 299 So. 3d 728, we deny the relief sought by the
Relators.
FACTS AND PROCEDURAL HISTORY
In 2016, the Respondents, who are taxi cab drivers in New Orleans, filed suit
against individual Uber drivers, alleging that said drivers violated the Louisiana
Unfair Trade Practices Act (”LUTPA”) because they were transporting passengers
for hire or fee without having a “class D” chauffer’s driver’s license. The
Respondents later filed a Fourth Supplemental and Restated Petition in 2021,
1 adding the Relators as defendants.1 The Respondents raised the following
allegations against the Relators in their petition:
1. the Relators committed LUTPA violations by conspiring with the other defendants and the City of New Orleans to implement a method or plan to compete unfairly by violating the city ordinances;
2. the Relators committed general tort violations;
3. the Relators breached the duty of good faith and fair dealing; and,
4. the Relators are solidarily liable with the other defendants as conspirators, or in the alternative, vicariously liable “as agents or mandates of one another,” or in the alternative, “as general partners in a partnership,” or in the alternative, as employers of the individual drivers.
The Relators filed peremptory and dilatory exceptions asserting: the petition
should be dismissed entirely for the failure to request service within ninety days of
filing; the LUTPA claims against the Relators were perempted; and an exception
of no cause of action on the LUTPA, conspiracy, general tort, and breach of good
faith and fair dealing claims.2
Following oral argument, the court issued a written judgment on May 16,
2022, granting in part and denying in part the Relators’ exceptions. The district
court granted the Relators’ exception of peremption regarding the LUTPA claim,
as well as the exception of no cause of action on the conspiracy claim.3 However,
1 “Defendants” as used in the remainder of this opinion shall refer to the Uber drivers only, and
excludes inclusion of the Relators. 2 The Relators also asserted dilatory exceptions of improper cumulation of actions, and vagueness, ambiguity, and nonconformity, which were denied. Those rulings are not at issue in the instant writ application. 3 In the Respondents’ opposition to the Relators exceptions filed in the district court, they admitted that they had not alleged a separate, stand-alone claim of conspiracy, but had instead
3 the court denied the: exception of insufficient service of process; exception of no
cause of action regarding the Relators’ vicarious liability for the acts of the
Defendants; the exception of no cause of action on the general tort claim, and the
exception of no cause of action for breaching the duty of good faith and fair
dealing. Lastly, the district court found that the exception of no cause of action on
the LUTPA claim was moot as to the Relators because it was perempted.
After filing their Notice of Intent, the Relators timely filed the instant writ
application. The Relators, as noted above, seek review of the district court’s denial
of their exceptions of no cause of action regarding the Respondents’ vicarious
liability claim, general tort claim, and breach of duty of good faith and fair dealing
claim
STANDARD OF REVIEW
This Court has explained that “[a]n exception of no cause of action tests ‘the
legal sufficiency of the petition by determining whether the law affords a remedy
on the facts alleged in the pleading.’” Henderson v. State Farm Mut. Auto. Ins. Co.,
21-0654, pp. 4-5 (La. App. 4 Cir. 12/17/21), 335 So. 3d 349, 353 (quoting Green v.
Garcia-Victor, 17-0695, p. 4 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453
[citations omitted]). Moreover, courts can only review the petition, amendments to
the petition and any documents attached thereto in deciding an exception of no
cause of action. Green, 17-0695, p. 5, 248 So.3d at 453 (quoting 2400 Canal, LLC
v. Bd. of Sup'rs of Louisiana State Univ. Agr. & Mech. Coll., 12-0220, p. 7 (La.
App. 4 Cir. 11/7/12), 105 So.3d 819, 825. “The grant of the exception of no cause
of action is proper when, assuming all well pleaded factual allegations of the
alleged a conspiracy merely to establish solidary liability for the LUTPA violation between the Relators and the other defendants under La. Civ. Code art. 2324.
4 petition and any annexed documents are true, the plaintiff is not entitled to the
relief he seeks as a matter of law.” Id. However, “any doubt must be resolved in
the plaintiffs’ favor.” Id.
Appellate courts review rulings on exceptions of no cause of action using the
de novo standard of review because exceptions of no cause of action present legal
questions. Henderson, 21-0654, p. 5, 335 So. 3d at 353 (citing Tickle v. Ballay, 18-
0408, p. 4 (La. App. 4 Cir. 11/14/18), 259 So.3d 435, 438).
VICARIOUS LIABIILITY
As stated above, the Respondents raised a vicarious liability claim, which
they pled in the alternative to their LUTPA claims. The record reflects that the
Respondents admitted in their second and third supplemental and restated petitions
and at the hearing on the exceptions at issue that the Defendants were independent
contractors, but they further alleged that the Relators exercised control over the
Defendants’ methods of operation.
Under Louisiana law, a principal is not liable for the offenses committed by
an independent contractor while performing contractual duties. Allstate Ins. Co. v.
Veninata, 06-1641, pp. 6-7 (La. App. 4 Cir. 11/7/07), 971 So.2d 420, 425.
However, two exceptions exist to this rule: (1) an owner may not avoid liability for
inherently or intrinsically dangerous work by an independent contractor; (2) an
owner may be liable for exercising control over the contractor's methods of
operation or giving express or implied authorization to an unsafe practice. Id.
(citing Davenport v. Amax Nickel, Inc., 569 So.2d 23, 28 (La. App. 4 Cir.1990)).
Considering that the second exception may be applicable in this matter, pursuant to
5 our de novo review, we find that the district court did not err in denying the
Relators’ exception of no cause of action as to the vicarious liability claim.
Furthermore, we note that the matter sub judice involves exceptions of no
cause of action addressing the Respondents’ various claims. Recently, this Court
explained that an exception of no cause of action should be denied in toto where
multiple claims are raised arising out of a singular set of operative facts and the
petition is determined to have raised at least one valid cause of action:
Although the Louisiana Legislature, by enacting La. C.C.P. art. 1915, authorized a trial court to sustain an exception as to one or more but less than all of the claims, demands, issues, or theories against a party, “the Louisiana Supreme Court has found that such a partial judgment is improper when the adjudicated claim forms the basis for several other theories of recovery against the same defendants.” Robert v. Robert Mgmt. Co., LLC, 13- 1043 (La. App. 4 Cir. 12/19/13) (unpub.), 2013 WL 8151042, (citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1239 (La. 1993)).16 Thus, “[when] a plaintiff's theories of recovery arise out of the operative facts of the same transaction or occurrence and the petition states a cause of action as to any demand or theory of recovery, an exception of no cause of action should be overruled.” Simmons v. Templeton, 99-1978, p. 5 (La. App. 4 Cir. 4/12/00), 762 So.2d 63, 66.
Waiters v. deVille, 19-1048, pp. 10-11 (La. App. 4 Cir. 4/22/20), 299 So. 3d
728, 736–37.
Considering the applicable jurisprudence and the facts presented, we find
that the Respondents’ claims of vicarious liability, general tort and breach of duty
of good faith and fair dealing “arise out of the operative facts of the same
transaction or occurrence.” We further find that the petition states a cause of
action as to the Respondents’ vicarious liability claim. Having found that a viable
6 cause of action exists under Waiters, we pretermit discussion of the merits of the
remaining two exceptions.
DECREE
In light of the foregoing, we deny the relief sought by the Relators.
WRIT GRANTED; RELIEF DENIED