Young v. Marsh

86 So. 3d 42, 2012 WL 204533, 2012 La. App. LEXIS 56
CourtLouisiana Court of Appeal
DecidedJanuary 25, 2012
DocketNo. 46,896-CA
StatusPublished
Cited by8 cases

This text of 86 So. 3d 42 (Young v. Marsh) 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
Young v. Marsh, 86 So. 3d 42, 2012 WL 204533, 2012 La. App. LEXIS 56 (La. Ct. App. 2012).

Opinion

GASKINS, J.

| derrick Young, Sr., is a deputy with the Madison Parish Sheriffs Department. He was injured while responding to a 911 call when his patrol car was struck by a fire truck driven by Johnny Marsh, a firefighter with the City of Tallulah and a volunteer firefighter with the Madison Parish Police Jury (“MPPJ”). Mr. Young and his wife, LaWanda Young, and their children, Demeante, Derrick, Jr., Dorian, and Derrilon, filed suit against Mr. Marsh, the City of Tallulah Fire Department, the City of Tallulah, the MPPJ, and St. Paul Fire & Marine Insurance Company. The MPPJ filed a motion for summary judgment which was granted by the trial court, dismissing the plaintiffs’ claims against that entity. The plaintiffs have appealed. For the following reasons, we affirm the trial court judgment.

FACTS

On June 17, 2007, at 6:54 a.m., Mr. Young was responding to an emergency call regarding a car overturned on Interstate 20. Mr. Marsh, driving a City of Tallulah fire truck, was also responding to the call. Mr. Marsh was employed by the City of Tallulah Fire Department, and also answered calls as a volunteer firefighter with the MPPJ.

As they approached an intersection, Mr. Young alleges that he had a green light and that Mr. Marsh ran a red light, struck his patrol vehicle, and the patrol car then hit a utility pole. Mr. Young claims that Mr. Marsh had a suspended driver’s license due to failure to maintain insurance. The accident occurred in Madison Parish, outside the Tallulah city limits.

Mr. Young suffered injuries to his head, neck, arms, back, and legs. He filed suit along with his wife and children against the defendants. He |2claims damages for past, present, and future pain and suffering; physical disability; loss of enjoyment of life; lost earnings; loss of earning capacity; loss of future earnings; past, present, and future medical expenses; emotional distress; attorney fees, interest, and costs; and expert witness fees. LaWanda claims damages for loss of consortium and the couple’s four children seek damages for mental anguish.

The plaintiffs allege that the MPPJ hired Mr. Marsh to act as a volunteer firefighter and that he was acting in the course and scope of his employment with the MPPJ at the time of the accident. The plaintiffs claim that Mr. Marsh was paid for every run, and that the MPPJ had the right to control his salary, rate of compensation, and the number of calls he received in Madison Parish. The plaintiffs maintain that the MPPJ had the right to discipline or terminate Mr. Marsh, and that the MPPJ negligently hired and contracted with the City of Tallulah and with Mr. Marsh. The plaintiffs urge that the [44]*44MPPJ failed to exercise reasonable diligence in investigating to determine whether Mr. Marsh was a licensed driver and had liability insurance. The plaintiffs claim that the MPPJ should be held liable or vicariously liable for the actions of Mr. Marsh and/or the City of Tallulah and/or the City of Tallulah Fire Department.

On September 20, 2010, the MPPJ filed a motion for summary judgment claiming that under La. R.S. 42:1441.3, Mr. Marsh was not an employee of the MPPJ.1

|4A hearing was held on April 13, 2011, on the plaintiffs’ motion to compel discovery and the MPPJ’s motion for summary judgment. Regarding the motion to compel, the plaintiffs claimed that the MPPJ was attempting to conceal payments to volunteer firefighters during the time when this accident occurred. The plaintiffs requested bank records to verify when volunteers were paid by the police jury. The police jury objected to producing records for anyone other than Mr. Marsh. The plaintiffs also claimed that some records regarding volunteer firefighter pay were in a different format from those previously produced. The trial court found that the additional discovery sought by the plaintiffs was not relevant or necessary in order for the court to rule on the motion [45]*45for summary judgment. The motion to compel was denied.

Regarding the motion for summary judgment, the MPPJ argued that Mr. Marsh was not its employee under the factors listed in La. R.S. 42:1441.3(C). The MPPJ claimed that it did not have the power of selection or engagement over Mr. Marsh because he was employed by the City of Tallulah. The police jury argued that it did not supervise Mr. Marsh or have the right of control over him; it maintained that the police jury did not set Mr. Marsh’s work schedule. The MPPJ contended that it did not have the right to discipline or terminate Mr. Marsh and that he did not receive any compensation for this fire run.

The plaintiffs argued that the MPPJ paid $25,000 to $30,000 to the City of Tal-lulah for the use of the City’s fire equipment. The plaintiffs | fiurged that the MPPJ selected the number of volunteer firefighters and decided how much to pay them for each emergency run.

The trial court reasoned that the issue to be decided was whether the MPPJ or the City of Tallulah was to be considered the master of Mr. Marsh under La. R.S. 42:1441.3. The trial court determined that the MPPJ had no power of selection or engagement of Mr. Marsh and had no control of his daily time, physical activities, and no power of discipline. The trial court concluded that, under La. R.S. 42:1441.3(F), only one political subdivision can be vicariously liable for the torts of an employee. The trial court determined that the City of Tallulah was the master of Mr. Marsh, not the MPPJ. Therefore, the trial court granted summary judgment in favor of the MPPJ, dismissing the plaintiffs’ claims. A judgment to that effect was signed April 13, 2011. The plaintiffs appealed.

VICARIOUS LIABILITY

In their first three assignments of error, the plaintiffs essentially argue that the trial court erred in finding that the MPPJ was not vicariously liable for Mr. Marsh’s actions which resulted in injury to Mr. Young, when Mr. Marsh was responding to an emergency call outside the city limits of Tallulah and before his shift began for the City of Tallulah Fire Department. The plaintiffs contend that the trial court erred in finding that under La. R.S. 42:1441.3(F), the MPPJ is immune from vicarious liability when one of its volunteer firefighters negligently injures another when responding to a fire simply because that volunteer happens to be employed by another political subdivision.

lr,The plaintiffs contend that the trial court erred in finding that the MPPJ lacked the requisite control over Mr. Marsh to be held vicariously liable for his negligent acts when the police jury paid him for his services as a volunteer firefighter, the police jury designated the amount of compensation to pay the volunteer firefighters, the police jury designated the number of volunteer firefighters that can receive compensation for responding to emergency calls from Madison Parish, the police jury paid for equipment to be used by volunteers, the police jury wrote checks to the individual volunteers for their services each month, and Mr. Marsh was responding to an emergency call outside the city limits of Tallulah and before his shift began for the City of Tallulah Fire Department. The plaintiffs further urge that, at a minimum, genuine issues of material fact exist concerning the police jury’s control over Mr. Marsh such that the lower court should not have granted summary judgment. These arguments are without merit.

[46]*46Legal Principles

Appellate courts review summary judgments de novo

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Cite This Page — Counsel Stack

Bluebook (online)
86 So. 3d 42, 2012 WL 204533, 2012 La. App. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-marsh-lactapp-2012.