Thomas v. RPM CORP.

449 So. 2d 18, 1984 La. App. LEXIS 8272
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1984
Docket83 CA 0359
StatusPublished
Cited by13 cases

This text of 449 So. 2d 18 (Thomas v. RPM CORP.) 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
Thomas v. RPM CORP., 449 So. 2d 18, 1984 La. App. LEXIS 8272 (La. Ct. App. 1984).

Opinion

449 So.2d 18 (1984)

Tommy A. THOMAS
v.
RPM CORPORATION, et al.

No. 83 CA 0359.

Court of Appeal of Louisiana, First Circuit.

February 28, 1984.
Rehearing Denied April 3, 1984.
Writ Denied June 1, 1984.

*20 Ralph W. Stephenson, Jr., Baton Rouge, Wm. Henry Saunders, Jena, for plaintiff, appellant.

James E. Moore, R. Michael Caldwell, Franklin, Moore & Walsh, Baton Rouge, for defendants, appellees.

Before SHORTESS, LANIER and CRAIN, JJ.

SHORTESS, Judge.

This is a suit for worker's compensation benefits arising out of an automobile accident which occurred on January 12, 1982. Plaintiff, Tommy A. Thomas, had left his employment at RPM Corporation (defendant) and was giving two fellow employees, Kevin Maynard and Tony Zieto, a ride home in a vehicle owned by defendant. At approximately 6:00 p.m., after dropping both of them off, plaintiff was attempting to enter Airline Highway from Highland Road to go home when he collided with a vehicle which ran the red light at that intersection. Plaintiff sustained serious injuries to his back.

The trial court rendered judgment for defendant, finding that "Mr. Thomas was not in the course and scope of his employment at the time of this accident because, as the defendants contend, the truck had merely been loaned to [Thomas] as a gratuity, for him to use until his vehicle was repaired." Plaintiff appealed and specified as error the trial court's "dismissing plaintiffs claim for workers compensation, medical payments, and penalties on the grounds that company furnished transportation for employees was a loan."

Generally, for an injury to be compensable under our worker's compensation law, the injury must be "by accident arising out of and in the course of [the claimant's] employment...." La.R.S. 23:1031. In order to determine if an employee experienced an accident "arising out of" his employment, it must be determined whether the accident was the result of some risk to which the employee was subjected in the course of his employment and to which he would not have been subjected had he not been so employed. The "during the course of" element of the compensation statute brings into focus the time and place relationship between the accident and the employment. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982); Reynolds v. Be-Neat Tank Cleaning Corp., 425 So.2d 881 (La.App. 4th Cir.1983). Ordinarily, an employee injured while going to or returning from work is not entitled to compensation because the injuries are considered as not arising during the course of the employment. Gardner v. Industrial Indemnity Company, 212 So.2d 452 (La.App. 1st Cir.1968). However, this rule is subject to a number of jurisprudentially established exceptions. Such exceptions arise, for example, when the accident occurs during a trip the employee is making in the interest of his employer's business or pursuant to his employer's order, or when the employer has interested himself in the transportation of the employee as an incident to the employment agreement, or where the employee was doing work for his employer under circumstances where the employer's consent could be fairly implied. Reynolds, 425 So.2d at 883. See also Landry v. Benson & Gold Chevrolet, 398 So.2d 1262 (La.App. 4th Cir. 1981); Sanders v. Hercules Sheet Metal, Inc., 377 So.2d 486 (La.App. 4th Cir.1979), modified on other grounds, 385 So.2d 772 (La.1980); Gardner, 212 So.2d at 455.

In this case, plaintiff testified that on the day of the accident Bob Long, part owner and shop supervisor, "asked me if I would mind picking up Tony because his truck was broken down...." Plaintiff further testified that the use of the truck was given him in lieu of a pay raise:

Q Now, after Mr. Glenn Brown terminated his employment at RPM, you did not get a raise in salary, did you?
A No, Sir.
Q At some point in time Mr. Tony Zieto got a riase (sic); is that right?
A He took over the general foreman's job, that's right. Mr. Long said they couldn't get me a raise right then, *21 but he said, "I'll get you use of the truck." And I said, "That's fine."
Q Well, Mr. Long isn't here today, so we have no way—
A I have no reason to lie to you or anybody else.

Defendant did not directly refute either of plaintiff's assertions concerning statements made by Bob Long.[1] In fact, Richard Blackstone, an owner of defendant, testified that Bob Long had authority for the day-to-day operation of the shop and authority over the use of vehicles. Mr. Richard LeBlanc, another owner, testified that his testimony would be the same as Blackstone's concerning company policy. Both witnesses testified that the truck was not part of any "employment package," but both witnesses also testified that at the time of the accident neither was very involved in or familiar with the day-to-day operations of defendant. Additionally, Blackstone stated that Bob Long was "general manager" of the shop.

Plaintiff further testified that he used the company-supplied pickup truck "to drive back and forth to work and when I had to come in at night or on the weekend." Further, "I used this truck when I had to deliver something on the way home." Apparently, plaintiff was frequently called upon by his employer after hours to do work involving use of the truck. Plaintiff related a particular incident in which he was called on the weekend to help transport a trade show display from the Centroplex in Baton Rouge back to the RPM office at La Belle. Plaintiff also testified that on the day of the accident he had picked up Kevin Maynard and Tony Zieto "because neither one of them had a ride," and stated that "Tony had been driving to work with me about a month."

Ann McCormick, a secretary for defendant at the time, testified that plaintiff started using the truck in October and used it until the accident; that plaintiff worked a forty-hour week (four days a week, ten hours a day, with Friday, Saturday and Sunday off); that plaintiff was sometimes called in on Fridays to work, for which time he would be paid overtime; that the company paid for the gasoline used in the truck.

Tony Zieto testified that Bob Long told him the only reason plaintiff was using the truck was that his own personal truck was broken. However, Zieto further testified that this discussion took place "some time in December." We must note at this point that the testimony of plaintiff's wife, Glynda, and Ricky Lee, another fellow employee, firmly established that plaintiff first acquired use of the truck in late September or early October. Plaintiff testified that his truck was repaired around October 22, 1982. This means that Bob Long's assertion to Zieto (that plaintiff was using RPM's truck because his was broken down) was made after plaintiff's truck was repaired. The record establishes that plaintiff had the use of the vehicle from late September or early October, 1981, until the time of the accident, approximately four months.

Lastly, we find it probative that Tony Zieto was given use of the replacement truck after plaintiff's accident. Also, at all times RPM paid for gas and oil for the truck through an account at a nearby service station.

The trial court's reasonable evaluations of credibility in worker's compensation cases are accorded great weight by the reviewing court. Berry v. Livingston Roofing Co., 403 So.2d 1247 (La.1981).

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Bluebook (online)
449 So. 2d 18, 1984 La. App. LEXIS 8272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-rpm-corp-lactapp-1984.