STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-8
TOMMIE HEBERT, ET UX.
VERSUS
J. ORAN RICHARD, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C20081200 HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Shannon J. Gremillion, and David Kent Savoie, Judges.
REVERSED IN PART AND RENDERED; AFFIRMED IN PART; REMANDED. James Cleverly Klick Joseph E. (Jed) Cain Mikalia M. Kott Danielle T. Hufft Herman, Herman & Katz 820 O'Keefe Avenue New Orleans, LA 70113 (504) 581-4892 COUNSEL FOR PLAINTIFFS/APPELLANTS: Tommie Hebert Melissa Anne Hebert
Joseph R. Joy, III Jospeh Joy & Assoc. P. O. Box 4929 Lafayette, LA 70502 (337) 232-8123 COUNSEL FOR PLAINTIFFS/APPELLANTS: Melissa Anne Hebert Tommie Hebert
Kenneth Hugh Laborde Brendan P. Doherty Gieger, Laborde & Laperouse 701 Poydras, Ste 4800 New Orleans, LA 70139-4800 (504) 561-0400 COUNSEL FOR DEFENDANTS/APPELLEES: J. Oran Richard Industrial Helicopters, Inc. Allianz Global Risks US InsuranceCompany Game Management, Inc. Michael David Richard
Charles R. Sonnier Attorney at Law P. O. Drawer 700 Abbeville, LA 70511-0700 (337) 893-5973 COUNSEL FOR DEFENDANTS/APPELLEES: Game Management, Inc. Allianz Global Risks US InsuranceCompany Michael David Richard Industrial Helicopters, Inc. J. Oran Richard SAUNDERS, JUDGE.
Tommie and Melissa Hebert (hereafter collectively “Appellants”) appeal a
judgment rendered in accordance with a jury verdict in favor of defendant,
Industrial Helicopters, Inc. (hereafter “Industrial”), finding that Tommie Hebert
(hereafter individually “Hebert”) was in the course and scope of employment with
Industrial at the time of injury. For the following reasons, we reverse in part and
render, affirm in part, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY:
On March 3, 2007, Tommie Hebert sustained severe injuries when he fell to
the ground from a moving helicopter that was owned by Industrial. Industrial’s
principal business was aerial herbicide application. Industrial also supplied
helicopters for fish and game surveys and captures. It is undisputed that, at the
time of his accident, Hebert had been employed by Industrial for nearly thirty years,
primarily as a commercial fuel truck driver.
The owner and president of Industrial, defendant, J. Oran Richard (hereafter
“J. Oran”) also owned a company named Game Management, Inc. (hereafter
“GMI”). GMI leased large tracts of land for hunting, fishing, farming, and
ranching in Louisiana and Texas. GMI also performed wildlife surveys in Mexico,
during which it aerially tracked and captured deer.
Employees of Industrial sometimes worked for other businesses owned by J.
Oran, including GMI. J.Oran testified that Hebert did work “across the board,” but
that he primarily drove a truck for Industrial. Defendant, Michael Richard
(hereafter “Richard”), who was J. Oran’s son and an employee of Industrial, asked
Hebert to serve as a deer netter in Mexico for the weekend that the accident
occurred. Following the accident in Mexico, on February 28, 2008, Appellants filed a
petition for damages against J. Oran Richard, Michael Richard, Industrial, GMI,
and various other entities owned by J. Oran and Richard, alleging that he was not
in the course and scope of his employment with Industrial when he fell from the
helicopter and that he was an exclusive employee of Industrial. Several defendants
were dismissed. In 2009, the remaining defendants filed a motion for summary
judgment, alleging entitlement to workers’ compensation immunity. The trial
court granted the motion, and found that GMI was Hebert’s special employer who
had borrowed him from his general employer, Industrial. Under the borrowed
servant doctrine and La.R.S. 23:1031(C), the trial court found that Industrial and
GMI were solidarily liable for worker’s compensation benefits and, therefore, were
immune from suit in tort. Appellants appealed. On appeal, a panel of this court
found that genuine issues of material fact precluded summary judgment, reversed
the trial court’s grant of summary judgment, and remanded the case to the trial
court for further proceedings, explaining:
GMI is not a borrowing employer. Further, the control by Industrial in this case renders Industrial, but not GMI, liable for workers’ compensation benefits and entitled to tort immunity if Mr. Hebert was in the course and scope of his employment with Industrial at the time of his accident. Industrial states that he was not. Based upon the foregoing, the trial court erred as a matter of law in finding borrowed servant status in this case and in granting summary judgment to Defendants on that issue.
Hebert v. Richard, 10-1417, pp. 15-16 (La.App. 3 Cir. 7/6/11), 72 So.3d 892, 903.
Following remand, Appellants filed a motion for partial summary judgment,
asserting no genuine issue of material fact existed pertaining to the issue of
Industrial’s immunity from tort liability under La.R.S. 23:1032, et seq. because
Industrial judicially admitted Hebert’s injuries did not occur in the course and
2 scope of his employment with Industrial. Appellants’ motion was denied and they
sought a supervisory writ, which was denied on the ground that Appellants failed
to show that a remedy through an appeal would be inadequate. Hebert v. Richard,
14-511 (La.App. 3 Cir. 5/21/14)(unpublished opinion).
Jury trial was held on May 27, 2014. At the close of evidence, Appellants
moved for a directed verdict on the issue of Hebert’s employment status; the
motion was denied. The jury found that Hebert was in the course and scope of his
employment with Industrial at the time of the accident, that Industrial had a duty to
Hebert, that the duty was breached, and that the breach was the actual cause of
Hebert’s injuries. The jury further found that GMI owed Hebert no legal duty.
Hebert was assigned fifty-six percent fault and Industrial forty-four percent. On
June 18, 2014, the trial court entered judgment in favor of Industrial based upon
the jury’s finding that Hebert was in the course and scope of his employment with
Industrial. Appellants appealed.
In their appeal, Appellants assert the trial court erred in:
1. denying Appellants’ motion for summary judgment and allowing Industrial to assert immunity as Hebert’s direct employer because Industrial judicially confessed that Hebert was not in the course and scope of his employment with Industrial at the time of the accident;
2. refusing to admit as evidence Appellants’ statement of uncontested facts and Industrial’s statement of contested facts in which they admitted Hebert was not in the course and scope of his employment with Industrial at the time of the accident;
3. denying Appellants’ motion for directed verdict relative to the issue of his employment status with Industrial at the time of the accident;
4. alternatively, in light of the trial court’s errors in instructing the jury and in excluding Appellants’ evidence, that the trial court should determine on the record that Industrial did not meet of its burden of proof on the issue of whether Hebert was in the course and scope of his employment with Industrial at the time of the accident; and
3 5. failing to instruct the jury on the elements of an employer-employee relationship; and
6. failing to instruct the jury to presume certain documents did not exist because they were not produced; and
7. that the jury manifestly erred in its award of special damages when the uncontroverted evidence proves that Hebert’s special damages exceeded the amount awarded.
ASSIGNMENT OF ERROR NUMBER ONE:
In its first assignment of error, Hebert asserts that the trial court erred in
finding that Industrial had not judicially confessed that Hebert was not in the
course and scope of his employment with Industrial at the time of the accident. By
this assignment, Appellants ask that we find the trial court erred when it allowed
Industrial to make arguments concerning Hebert’s employment status when it
alleged contrary facts in its pleadings. After review of the record, we find that
Industrial judicially confessed that Hebert was not in the course and scope of his
employment with Industrial at the time of the accident.
Standard of Review on Summary Judgment
The ruling of the trial court on a motion for summary judgment is reviewed
de novo. Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996
So.2d 667, writ denied, 09-69 (La. 3/6/09), 3 So.3d 491. The appellate court
applies “the same criteria that govern a trial court’s determination of a motion for
summary judgment.” Breaux v. Cozy Cottages, LLC, 14-486, p. 4 (La.App. 3 Cir.
11/12/14), 151 So. 3d 183, 187. “The summary judgment procedure is designed to
secure the just, speedy, and inexpensive determination of every action. . . . The
procedure is favored and shall be construed to accomplish these ends.” La.Code
Civ.P. art. 966(A)(2). A motion for summary judgment:
4 shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(B)(2).
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’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 that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ.P. art. 966(C)(2). An employer seeking to claim immunity from tort
pursuant to La.R.S. 23:1032 bears the burden of proving entitlement. Tilley v.
Boise Cascade Corp., 09-1072 (La.App. 3 Cir. 3/10/10), 32 So.3d 1130, writ
denied, 10-767 (La. 6/9/10), 38 So.3d 310. Thus, Hebert, as the movant, has the
initial burden of proof on his motion for summary judgment. However, at trial,
Industrial, as the employer, has the burden to prove that it is entitled to workers’
compensation immunity. Thus, Industrial must have produced factual support
sufficient to establish that it would be able to meet its burden of proof at trial on
this issue.
Law Applicable to Judicial Confession
“A judicial confession is a declaration made by a party in a judicial
proceeding. That confession constitutes full proof against the party who made it. A
judicial confession is indivisible and it may be revoked only on the ground of error
of fact.” La.Civ.Code art. 1853. A judicial confession waives the necessity of
proof on the confessed issue. Ramelow v. Bd. of Trustees of the University of
5 Louisiana System, 03-1131 (La.App. 3 Cir. 3/31/04), 870 So.2d 415, writ denied,
04-1042 (La. 6/18/04), 888 So.2d 184; C.T. Traina, Inc. v. Sunshine Plaza, Inc.,
03-1003 (La. 12/3/03), 861 So.2d 156. “A declaration made by a party’s attorney
or mandatary has the same effect as one made by the party himself.” Traina, Inc.,
861 So.2d at 159 (citing La. Civ.Code art. 1853, cmt. (b)). To constitute a judicial
confession, the party’s statement must be an express acknowledgement of an
adverse fact. Wood v. Fontenot, 04-1174 (La.App. 3 Cir. 3/2/05), 896 So.2d 323,
writ denied sub nom. City of New Iberia v. New Iberia Fire & Police Civil Serv.
Bd., 05-801 (La. 5/13/05), 902 So.2d 1023. Additionally, the non-confessing party
“’must have believed the fact was no longer at issue or must have relied on it, to
his detriment.’” Opti-Flow, LLC v. Prod. Servs. Int’l, Ltd., 04-1357, p. 4 (La.App.
3 Cir. 6/1/05), 903 So.2d 1171, 1174, writ denied, 05-1748 (La. 1/13/06), 920
So.2d 240 (quoting State v. Lamb, 31,919, p. 4 (La.App. 2 Cir. 5/7/99), 732 So.2d
1270, 1272). “A judicial confession is binding on the court and must be applied in
the case in which it is made.” Bennett v. Porter, 10-1088, p. 6 (La.App. 3 Cir.
3/9/11), 58 So.3d 663, 669.
Discussion
Industrial stated in multiple documents filed into the record that Hebert was
not doing the work of Industrial but was doing the work of GMI at the time of the
accident. On April 27, 2009, Defendants filed a motion for summary judgment,
asserting that Industrial was Hebert’s general employer and Game Management,
Inc. was his special employer. In their memorandum in support of their motion for
summary judgment, Defendants stated (emphasis added)(citations omitted):
Indeed, Hebert testified that during the deer netting operation he still considered himself to be working for Industrial Helicopters. Exhibit C, p. 84. As is discussed above, during his 30 years of employment
6 with Industrial Helicopters, Hebert was routinely asked to perform work at or in connection with other businesses owned by the Richard family, including Game Management. He further testified that this deer netting operation was no different; all of this was considered to be part of his employment with Industrial Helicopters, and he had no problem with doing these things.
The foregoing analysis is not altered by the fact that at the time of the incident, Hebert was performing the work of Game Management. Defendants do not dispute, indeed it is defendants’ position . . . that at the time of the incident, Hebert was the borrowed employee of Game Management, was under the control of Game Management and performing Game Management’s work, pursuant to an implicit agreement with Hebert’s immediate employer, Industrial Helicopters.”
Both J. Oran Richard and Michael Richard described the deer netting operations in Mexico as a joint effort between Industrial Helicopters and Game Management. However, it appears that Industrial Helicopters’ involvement was limited to the provision of a helicopter and pilot for these operations . . . . Under these circumstances, it must be concluded that Game Management’s work was being conducted at the time of the incident.
Additionally, in their supplemental memorandum in support of its motion for
summary judgment, Industrial asserted: “Clearly, Hebert understood that Game
Management’s work was performed at the time of his injury, a fact that is
confirmed by the testimony of J.O. Richard and Michael Richard.” The trial court
granted Industrial’s motion for summary judgment, finding Hebert was the general
employee of Industrial and the special employee of Game Management.
Appellants then filed a motion for rehearing or, alternatively, for new trial.
In opposing Appellants’ motion, Industrial stated: “[T]here is no dispute that
Hebert was not doing the work of Industrial Helicopters at the time of his injury
but was instead doing the work of Game Management.” The trial court denied
Appellants’ motion.
Appellants’ appealed the trial court’s grant of summary judgment in favor of
Industrial. In its opposition brief, Industrial again asserted (emphasis added):
7 Clearly, Hebert understood that Game Management’s work was performed at the time of his injury, a fact that was confirmed by the testimony of J.O. Richard and Michael Richard.
Both J. Oran Richard and Michael Richard described the deer netting operations in Mexico as a joint effort between Industrial Helicopters and Game Management. However, Industrial Helicopters’ involvement was limited to the provision of a helicopter and pilot for these operations . . . . Under these circumstances, it must be concluded that Game Management’s work was being conducted at the time of the incident.
....
In this case, there is no dispute that Hebert was not doing the work of Industrial Helicopters at the time of his injury but was instead doing the work of Game Management . . . . Thus, plaintiffs’ suggestion that Hebert was not acting in the course and scope of his employment with Industrial Helicopters is a non-issue. . . .
In this court’s first opinion in this case, we noted that Industrial had stated Hebert
was not in the course and scope of his employment with Industrial at the time of
the accident. Hebert v. Richard, 10-1417 (La.App. 3 Cir. 7/6/11), 72 So.3d 892.
This court reversed the trial court’s grant of summary judgment in favor of
Industrial and remanded for further proceedings.
After remand to the trial court, Appellants filed a motion for partial
summary judgment, asserting that “Industrial has admitted that Mr. Hebert’s
injuries did not occur in the course and scope and arising out of his employment
with Industrial at the time of his injuries.” In response, Industrial filed a “List of
Material Facts That Are Genuinely Disputed,” stating (emphasis added):
Tommie Hebert’s employment duties with Industrial Helicopters were not limited to that of a commercial fuel truck driver. Nevertheless, this does not constitute a dispute as to a material fact inasmuch as defendants acknowledge that Hebert was not performing the work of Industrial Helicopters at the time of his injury.
And in its brief in opposition to Appellants’ motion, Industrial asserted that Hebert
was the borrowed employee of Game Management and stated “the fact that Hebert
8 was not in the course and scope of his employment with Industrial is not
determinative of whether Industrial is entitled to immunity from tort. . . both the
lending and borrowing employers are immune from suit in tort.” (emphasis added).
The trial court denied the motion and the suit proceeded to trial. Appellants assert
this judgment was in error. We agree.
In its brief in this appeal, Industrial asserts that its multiple statements were
merely part of alternative arguments and that “[Hebert’s] employment status has,
from the outset, been a central issue in this case.” Industrial further asserts that the
jurisprudence of this court requires that the statement be intended to waive the
requirement of the opponent taking evidence, that the statements were not intended
to do so, and that they were made for an independent purpose of supporting their
primary argument that Hebert was the borrowed employee of GMI.
We conclude that the record establishes that the statements were not part of
alternative arguments and that whether Hebert was in the course and scope of his
employment with Industrial has not been an issue central to this case. We further
conclude that Industrial made conclusive statements that were intended to remove
from issue whether Hebert was doing the work of Industrial at the time of the
accident and judicially confessed that Hebert was not in the course and scope of his
employment with Industrial at the time of the accident. The record is replete with
statements by Industrial expressly acknowledging that Hebert was not doing the
work of Industrial at the time of the accident. Industrial stated so in multiple
documents filed into the record. Each subsequent filing reiterated Industrial’s
earlier statements that Hebert was not doing the work of Industrial at the time of
the accident. Only after Appellants filed a motion for summary judgment, just
before trial, did Industrial attempt to retract their multiple statements, and, even
9 then, it was not on the ground of error. In fact, in its response to Appellants’
motion for summary judgment, Industrial still acknowledged: “[T]his does not
constitute a dispute as to a material fact inasmuch as defendants acknowledge that
Hebert was not performing the work of Industrial Helicopters at the time of his
injury.” Moreover, in its original brief to this court, Industrial stated that whether
Hebert was in the course and scope of his employment with Industrial at the time
of the accident was a “non-issue.” The repeated explicit acknowledgment of such
an adverse fact was clearly intended to waive the opponent’s requirement of taking
proof to the contrary and is more than sufficient to have allowed Hebert to believe
that the fact was not disputed.
Therefore, we hold that the statements made by the Industrial in multiple
filings into the record and in brief to this court constitute a judicial confession that
Hebert was not in the course and scope of his employment with Industrial at the
time of the accident. As such, the admission “must be applied in the case in which
it [was] made.” Bennet, 58 So.3d at 669. Thus, these statements constitute proof
that Hebert was not in the course and scope of his employment at the time of the
accident and we accept that fact.
Based upon the foregoing, we find that there is no genuine issue of material
fact concerning whether Hebert was in the course and scope of his employment
with Industrial at the time of the accident and that Appellants are entitled to
summary judgment as a matter of law. Accordingly, we reverse the trial court’s
judgment and grant Appellants’ motion for summary judgment.
ASSIGNMENT OF ERROR NUMBER TWO:
In their second assignment of error, Appellants assert the trial court erred in
failing to admit into evidence Appellants’ statement of uncontested facts and
10 Industrial’s list of disputed facts, in which it stated that “defendants acknowledge
that Hebert was not performing the work of Industrial Helicopters at the time of his
injury.” Although our conclusion that the trial court erred in failing to grant
Appellants’ motion for partial summary judgment disposes of this assignment of
error, we will review this issue for the purposes of completeness and judicial
efficiency.
Vast discretion lay with the trial court concerning whether to admit or
exclude evidence and such a decision will not be reversed without a clear showing
that the trial court abused that discretion. State v. Simien, 95-1407 (La.App. 3 Cir.
7/24/96), 677 So.2d 1138. “Reasonable questions as to the admissibility of
evidence should be resolved in favor of receiving such evidence.” Lemoine v.
Hessmer Nursing Home, 94-836, p. 11 (La.App. 3 Cir. 3/1/95), 651 So.2d 444, 451.
A judicial confession must be applied by the court in the proceeding in which it is
made. Bennet, 58 So.3d 663. An admission made in a prior proceeding is not
considered a judicial confession, but is rather an extrajudicial admission, which is
generally not binding in later proceedings. Id. However, while not binding,
extrajudicial confessions are admissible into the later proceedings as evidence. Id.
While we could locate no jurisprudence directly on point, if an admission
made in one judicial proceeding is admissible as evidence against the party making
it in a later judicial proceeding, it logically follows that a statement made in a
current proceeding, which is determined not to rise to the level of judicial
confession, and therefore, is found not to be binding, is admissible as evidence
against the party making it in the proceeding in which it was made. Moreover,
even an admission made outside of the context of a judicial proceeding is
admissible as evidence if it is offered against a party and is his own statement or a
11 statement made by a person authorized to make it. See La.Code Evid. art.
801(D)(2). We find the excluded evidence to be of high probative value in this
case. Industrial conceded throughout the litigation that Hebert was not doing the
work of Industrial at the time of the accident. Just before trial, Industrial changed
its position. The evidence was not cumulative and should have been admitted.
Therefore, we find that the trial court committed legal error in refusing to admit
Industrial’s statement of contested facts. In light of the legal error, we will conduct
a de novo review of the employment status issue. As we explained in Maricle v.
Liberty Mut. Ins. Co., 04-1149, pp. 15-16 (La.App. 3 Cir. 3/2/05), 898 So.2d 565,
576:
when the trial court’s legal error taints only one of several findings of fact by the jury, the reviewing court may give the usual deference to the untainted findings and make de novo determinations without regard to the findings of the jury as to the tainted issues.
Hebert testified concerning his employment with Industrial. In his “main
job” with Industrial, as a fuel truck driver, Hebert explained he mostly “follow[ed]
the helicopter [used for spraying] all over the country,” “climbing up bulk tanks,
filling fuel, filling chemicals, climbing down[[.]” He also explained he “plumb[ed]
up pipe to run jet fuel.” Notably absent is any testimony that his job duties
included netting deer. Additionally, Hebert testified that he was paid a salary by
Industrial and was never paid a regular paycheck by anyone other than Industrial.
Concerning whether deer netting was part of his employment, he explained
(emphasis added):
Q Now, when -- did you feel that netting was part of your job?
A No, sir.
Q And why is that?
12 A It was interesting to start, but I went -- went, like, because -- the first time I ever went is because somebody couldn’t go again, like Luis or somebody. He had a birthday party. I think that’s the first time I ever went, something like that. And it was okay.
The first one, the first one is fun. Everybody is going to think it’s fun. After the first one, it’s a job, and you get your butt kicked doing it. These deer are clawing, scratching, biting, hollering. It’s – it’s not -- you know, it’s not for everybody, you know. It’s just I went to help Mike and them, and, you know, and they saw I did a good job, and when they needed somebody, they asked me back. You know, they kept asking me back when they needed somebody.
He reiterated he was merely lending a hand to persons considered his friends:
A It’s not my operation. I just -- you know, went to help somebody and ruined my life.
Q You did it to help Mike and Oran?
A Yeah. It was my friends, you know.
Hebert also explained that he did not get paid for deer netting, had only
netted deer perhaps twice a year, that at least two times he only went because
someone else was unavailable, and that “[Richard] saw the toll it was taking.”
Before the accident, Hebert testified that he “thought [he] was done [netting deer]
for good,” when he was asked to go again. Finally, he testified that he only had a
passport to go to Mexico but not a visa.
Even Richard testified that his relationship with Hebert was not merely one
of co-employees, explaining:
Q Tommie trusted you with his life, didn’t he?
A Yes, sir. And I trusted him with mine.
Q And that’s good, because it was the buddy system, wasn’t it?
A We were -- we were like brothers for a long time.
13 J. Oran testified concerning the business operations at Industrial. He
explained that GMI had no payroll employees, and all employees of both Industrial
and GMI received payment from Industrial, “but there is at least one person that
probably 99 percent of his work is for [GMI],” making clear that the two
companies had separate workforces with defined roles. He explained that
employees, including Hebert, often did work for the various companies he owned
but that “[Hebert] did a lot of work for Industrial and did drive a truck.”
Although he stated he did not keep any documents pertaining to a work visa
for Hebert because any documents that may have been completed were turned into
Mexican authorities, J. Oran testified that a work visa was required to work in
Mexico, explaining:
Q When you went to Mexico, would you go on a tourist visa or on a work visa?
A Both.
Q You did both?
A I’ve done both, and no visa. If you don’t go past a certain distance in Mexico, a visa is not required; but if you’re going to work in Mexico, you can[‘t] just step across the border and do any kind of work you’re getting paid for, you’ve got to have a work visa.
On de novo review of the evidence presented to the jury and the proffered
evidence on this issue, we conclude that the evidence overwhelmingly establishes
that Hebert was not in the course and scope of his employment with Industrial at
the time of the accident. Hebert, J. Oran, and Richard all testified that Hebert
primarily drove a truck for Industrial. Hebert explained that he had only gone to
Mexico for deer netting a handful of times, when someone else was unavailable,
that he thought he would no longer be making trips for deer netting, and that he
14 received no payment for the deer netting. No work visa for Hebert was produced.
And finally, in light of all the testimony, Industrial acknowledged in its statement
of contested facts that Hebert was not doing the work of Industrial at the time of
the accident. Had Appellants’ statement of contested facts and Industrial’s
statement of contested facts, in which Industrial acknowledged that “defendants
acknowledge that Hebert was not performing the work of Industrial Helicopters at
the time of his injury[,]” been admitted, taken with the other evidence, it is clear
that Appellants’ position that Hebert was not in the course and scope of
employment is well-founded. Thus, we conclude that, had the jury had this
evidence before them, it would have reached a different result on this issue and
concluded that Hebert was not in the course and scope of his employment with
Industrial at the time of the accident.
ASSIGNMENT OF ERROR NUMBER THREE:
At the close of the evidence, Appellants moved for a directed verdict on the
issue of whether Hebert was in the course and scope of his employment with
Industrial at the time of the accident. The trial court denied the motion, and the
case was submitted to the jury, which concluded that Hebert was in the course and
scope of employment with Industrial at the time of the accident. Appellants assert
that the trial court erred in failing to grant the directed verdict, excluding the jury
from considering evidence pertaining to whether Hebert was in the course and
scope at the time of the accident. Here again, we note that this issue is disposed of
by our conclusion in assignment of error number one, but we review this argument
for the purposes of completeness and judicial efficiency.
In Hebert v. BellSouth Telecommunications, Inc., 01-223, pp. 4-5 (La.App. 3
Cir. 6/6/01), 787 So.2d 614, 617, writ denied, 01-1943 (La. 10/26/01), 799 So.2d
15 1145 (quoting Busby v. St. Paul Insurance Co., 95-2128, pp. 16-17 (La.App. 1 Cir.
5/10/96); 673 So.2d 320, 331, writ denied, 96-1519 (La. 9/20/96); 679 So.2d
443)(citations omitted), we explained:
A trial court has much discretion in determining whether or not to grant a motion for directed verdict. A motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury.
On appeal, the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. Furthermore, the propriety of a directed verdict must be evaluated in light of the substantive law underpinning the plaintiff’s claims
The trial court’s judgment denying Appellants’ motion for directed verdict
was prompted by an erroneous exclusion of Appellants’ statement of uncontested
facts and Industrial’s list of disputed facts in which it stated that “defendants
acknowledge that Hebert was not performing the work of Industrial Helicopters at
the time of his injury.” In light of this error, the trial court was precluded from
determining whether reasonable persons could have reached different conclusions.
Without the excluded evidence, reasonable persons could have reached different
verdicts. In the instant case, Industrial had the burden of proving immunity from
tort. As discussed above, we find that Appellants’ evidence should have been
admitted. After reviewing all of the admissible evidence, including the testimony
of J. Oran, Hebert, and Richard, which we discussed above, Appellants’ statement
16 of contested facts, and Industrial’s statement of contested facts, in which Industrial
acknowledged that “defendants acknowledge that Hebert was not performing the
work of Industrial Helicopters at the time of his injury[,]” we conclude that the
facts and inferences were so overwhelmingly in favor of Appellants on the issue of
Hebert’s employment status that reasonable people could not reach a contrary
verdict. Accordingly, we find that assignment of error number three also has merit.
ASSIGNMENTS OF ERROR NUMBER FIVE AND SIX:
Appellants argue that the trial court erroneously failed to instruct the jury
regarding the legal requirements of an employer-employee relationship.
Appellants further assert that it should be presumed certain documents do not exist
because they were not produced. Having decided that summary judgment should
have been granted on the issue of whether Hebert was in the course and scope of
employment with Industrial at the time of the accident, and, further, after
reviewing all the evidence, including Appellants’ statement of uncontested facts
and Industrial’s statement of contested facts, which were erroneously excluded,
that a verdict should have been directed on the same issue, we conclude that the
jury should not have decided the course and scope issue. In light of our disposition
of assignments of error one, two, and three, we pretermit any discussion as to the
propriety of the trial court’s exclusion of the proffered jury instructions.
ASSIGNMENT OF ERROW NUMBER FOUR:
Appellants alternatively assert, in light of the trial court’s erroneous
exclusion of evidence and errors in failing to properly instruct the jury regarding
the legal requirements of an employer-employee relationship and that, because
Industrial failed to produce certain documents, it should be presumed the
documents do not exist, that this court should find that Industrial did not carry its
17 burden of proof on the issue of Hebert’s course and scope of employment with
Industrial at the time of the accident. Having decided that Appellants’ motion for
summary judgment should have been granted on this issue and, further, after
reviewing all of the evidence, including Appellants’ statement of contested facts
and Industrial’s statement of contested facts, which were erroneously excluded
from evidence, that directed verdict should have been granted, we pretermit
discussion of this assignment of error.
ASSIGNMENT OF ERROR NUMBER SEVEN:
In their final assignment of error, Appellants contend that the jury erred in
awarding Hebert $1,500,000.00 in special damages when the undisputed evidence
showed they amounted to no less than $1,782,826.99. We find no merit to this
contention.
We explained in Savant v. Hobby Lobby Stores, Inc., 12-447, p. 13 (La.App.
3 Cir. 11/7/12), 104 So.3d 567, 575:
An award of special damages is reviewed pursuant to the manifest error standard of review, unlike a general damage award which is reviewed pursuant to the abuse of discretion standard. Hornsby v. Bayou Jack Logging, 03–1544 (La.App. 3 Cir. 5/5/04), 872 So.2d 1244. Thus, “[t]he adequacy or inadequacy of the award should be determined by the facts or circumstances of the case under consideration.” Id. at 1248. The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence. Id.
The jury has vast discretion in its assessment of the appropriate amount of damages
to be awarded, and its determination is entitled to great deference, which should
rarely be disturbed on appeal. Guillory v. Lee, 09-0075 (La. 6/26/09), 16 So.3d
1104. Generally, “’uncontradicted expert testimony should be accepted as true.”
Prestridge v. Bank of Jena, 05-545, p. 18 (La.App. 3 Cir. 3/8/06), 924 So.2d 1266,
1278, writ denied, 06-0836 (La. 6/2/06), 929 So.2d 1261. However, ‘”[e]ven
18 uncontradicted expert testimony is not binding on the factfinder.’” Id. at 1278
(quoting Penton v. Healy, 04-1470, p. 4 (La.App. 4 Cir. 1/26/05), 894 So.2d 537,
540, writ denied, 05-0975 (La. 6/3/05), 903 So.2d 463). The factfinder has the
discretion to accept or reject expert testimony and to determine the amount of
weight it may be due. Id. As our supreme court explained in Ryan v. Zurich Am.
Ins. Co., 07-2312, p. 13 (La. 7/1/08), 988 So.2d 214, 222 (citations omitted):
“A fact finder may accept or reject the opinion expressed by an expert, in whole or in part.” “The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole.”
Appellants contend the jury was obliged to award the amount of
$526,485.00 for Hebert’s future medical needs, which Dr. Womack found to be the
present value calculation for the Conservant Plan of Care prepared by Dr. Gorman,
a certified life care planner, in consultation with Dr. Savant, a neurologist and
psychiatrist. As an initial matter, in considering the weight to be accorded to the
Life Care Plan prepared by these experts, the jury could reasonably have taken into
consideration the fact that Drs. Gorman and Savant were paid experts hired for
litigation purposes. Moreover, based on the evidence at trial, the jury could have
reasonably concluded that Appellants had not proven by a preponderance of the
evidence that certain expenses set forth in the Life Care Plan would be incurred in
the future.
The Conservant Plan included $170,000.00 for a revision of Hebert’s lumbar
spine surgery. However, Hebert’s treating orthopedic surgeon, Dr. Muldowney,
testified that “it’s just not moving dramatically enough for us to say with certainty
that it’s not healed, or it could be healed and it’s just the fact that he’s had a broken
back.” He explained that further tests would be needed to determine whether the
19 surgery had not healed and that the “next step would be predicated on that.” He
explained that if further diagnostic testing revealed the surgery had healed, “then a
spinal cord stimulator would be the next step.” If further testing revealed the
surgery had not healed, then “he would be a candidate for another operation.”
Additionally, although Dr. Muldowney testified that Hebert would more probably
than not need a revision surgery or a spinal cord stimulator, he further testified that
Hebert was “resistant to having anything else done right now” and that Hebert’s
resistance was the reason no further diagnostic testing had been done. In his
testimony, Dr. Lindemann, Hebert’s physical medicine and rehabilitation doctor,
acknowledged that Hebert had consistently advised him he was not interested in
any further operations on his back, although he stated that “it may be inevitable” in
the future. In his testimony, Hebert himself expressed a strong hesitancy towards
having another operation on his back. In light of the foregoing, the jury may have
reasonably concluded that Hebert would not undergo another surgery on his back.
Accordingly, we find no error by the jury in failing to award damages to Hebert for
a surgery the jury could have reasonably concluded he may not have.
The Conservant Plan of Care also included $40,000.00 for a right hip
replacement surgery. However, Dr. Muldowney did not testify that Hebert would
more probably than not require a hip replacement. In fact, his testimony on this
issue was equivocal, as he explained that Hebert appeared to be developing post-
traumatic arthritis in the hip “which may eventually require a hip replacement or
something like that.” Further, Dr. Muldowney’s testimony of causation was
equivocal; he testified that the hip problem was a recent development at the time of
the May 2014 trial, and that it was his “assumption” that there was an injury that
“may have caused or initiated” a degenerative process. Thus, the jury could have
20 reasonably concluded either that it was not more probable than not that Hebert
would need the hip replacement surgery, or that Hebert had not shown that the hip
degeneration was caused by accident at issue. Thus, the jury could not have
manifestly erred in failing to award damages for a surgery Hebert may not have or
for an injury that may not have been caused by the accident at issue.
The Conservant Plan also included the sum of $110,355.00 allocated to
future diagnostic testing. This sum included amounts for MRIs of Hebert’s knees,
hips, and pelvis. However, Dr. Lindemann testified that he had not ordered MRIs
for Hebert’s knees and that Hebert had not recently complained of any knee pain.
Moreover, he testified only that Hebert “may” require an MRI of his right hip in
the future. Additionally, this figure included amounts for an EMG. However, Dr.
Lindemann again testified an EMG only “may be needed in the future. . . .At this
point, he may not need it. At a later point in time, he may need that.” Additionally,
Dr. Lindemann acknowledged that Hebert had already had an EMG, which was
negative and that a negative EMG was “good.” Again, given the above, the jury
could have reasonably concluded that it was not more probable than not that
Hebert would need these diagnostic procedures performed in the future.
Appellants include in their assessment of special damages the sum of
$473,359.00 for future lost wages and benefits, which assumed that Hebert is
permanently and totally disabled and would be unable to return to any type of
employment in the future. However, although both Dr. Muldowney and Dr.
Lindemann did express the belief that Hebert was permanently disabled, Dr.
Lindemann described Hebert as a dedicated employee who would like to get back
to work. Moreover, testimony showed that Hebert returned to work at Industrial
approximately nine months after the accident and worked for over a year doing
21 light duty work, including paperwork and running errands. Further, Hebert and his
wife Melissa testified as to things he continued to do around the house, such as
pulling weeds, cutting the grass with a riding lawn mower, and fixing small
appliances like the toaster or icemaker, with Hebert describing himself as
“mechanically inclined.” While Hebert testified that he could not go back to his
old job because of the physical demands, he stated that “[y]ou know, I’m not a lazy
person. I like to work. I love to work, you know.” Based on this evidence, the jury
could have reasonably concluded that Hebert would try to go back to work part-
time in a light-duty capacity. Thus, they could have reasonably reduced the award
accordingly.
Given the evidence above, the jury could reasonably have found that Hebert
would not incur all of the expenses listed in the Conservant Plan or sustain a
complete loss of future wages and benefits. Based on the foregoing, we find the
record provides the jury with a reasonable basis to exclude certain expenses
associated with Hebert’s future medical care and lost wages. Thus, we find that
the jury was within its vast discretion in awarding the sum of $1,500,000.00 in
special damages to Appellants. Because the jury could have reasonably awarded
this amount, there was no manifest error. Accordingly, we find this assignment of
error is without merit. Therefore, we affirm the verdict of the jury in this respect.
OFFSET:
Finally, we note from the record that Industrial has paid a substantial amount
to Hebert in workers’ compensation. Although this issue was not briefed, it
appears from the record that either Industrial or insurer may be entitled to a
reimbursement or offset for the amounts already paid.
22 As this court explained in State, Dep’t of Transp. & Dev. v. Campbell, 617
So.2d 1224, 1227 (La.App. 3 Cir. 1993):
The authority of an appellate court to remand an action to the trial court for consideration of an issue is derived from LSA-C.C.P. Art. 2164 which states:
“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. . . .”
Louisiana jurisprudence has interpreted this article to empower an appellate court to remand a case for the consideration of new evidence. Jones v. LeDay, 373 So.2d 787 (La.App. 3rd Cir.1979) and cases cited therein. Elaborating in Jones, we stated at page 789:
“However, although an appellate court is empowered to remand a case, . . . for the introduction of additional evidence, such a procedure is sparingly exercised. Although a court should always remand a case whenever the nature and extent of the proceedings dictate such a course, nevertheless, whether or not any particular case should be remanded is a matter which is vested largely within that court’s discretion and such power to remand should be exercised only according to the peculiar circumstances presented in each individual case.” (Citations omitted.)
Thus, in the interest of justice, we remand to the trial court to take evidence
on and to determine whether any party is entitled to an offset.
CONCLUSION
In light of the foregoing, we reverse the judgment of the trial denying
Appellants’ motion for summary judgment and grant Appellants’ motion. We also
reverse the judgment of the trial excluding from evidence Appellants’ statement of
uncontested facts and Industrial’s statement of contested facts render judgment that
Hebert was not in the course and scope of his employment with Industrial at the
time of the accident. We reverse the judgment of the trial court denying
Appellants’ motion for directed verdict and render judgment that Hebert was not in
23 the course and scope of his employment with Industrial at the time of the accident.
We affirm the verdict of the jury awarding Appellants $1,500,000.00 in special
damages. We remand the case to the trial court to determine whether either
Industrial or its insurer may be entitled to an offset for workers’ compensation
benefits already paid.
REVERSED IN PART AND RENDERED; AFFIRMED IN PART;
REMANDED.