96-0618 La.App. 4 Cir. 7/24/96, Walker v. Kroop

• Decision Date: 24 July 1996
• Citation: 678 So.2d 580
• Parties: 96-0618 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 580

678 So.2d 580

96-0618 La.App. 4 Cir. 7/24/96

Kandina WALKER and Lawrence Walker v. Virgil KROOP, Sr., United Cab Company and Patterson Insurance.

No. 96-CA-0618.

Court of Appeal of Louisiana Fourth Circuit.

July 24, 1996.

Bernard, Cassisa & Elliott, B. Frank Davis, Howard B. Kaplan, Metairie, for Defendant/Appellee.

Danatus N. King, New Orleans, for Plaintiffs/Appellants.

Before BARRY, BYRNES and MURRAY, JJ.

[96-0618 La.App. 4 Cir. 1] BYRNES, Judge.

Mr. and Mrs. Lawrence Walker (Walker ¹) appeal the summary judgment dismissal of their damage claims against United Cabs, Inc. (United) arising out of an intersectional collision between their vehicle and a United taxicab driven by Virgil Kroop, Sr.

For the following reasons, we set aside the summary judgment and remand.

The accident occurred on March 24, 1995 at the intersection of Bienville Street and North Claiborne Avenue. Lawrence Walker was travelling southbound on Bienville Street when the cab driven by Virgil Kroop, Sr., travelling west on North Claiborne, hit his vehicle broadside. The police report of the incident indicates that Kroop ran the red light. ²

Walker filed a negligence suit against Kroop, sued United alleging that United "supervised the activities of defendant Kroop", and made Patco Assurance Company a defendant, as United's insurer.

United filed a motion for summary judgment denying liability and arguing that Kroop was neither its employee nor agent, but an independent contractor over whom United exercised no control. The trial court granted the motion and dismissed Walker's claims against United. This appeal followed.

Summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hospital, 93-2512 (La. 7/5/94), 639 So.2d 730. An appellate court thus asks the same questions as does the trial court in determining whether [96-0618 La.App. 4 Cir. 2] summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. McCrae v. Hankins, 720 F.2d 863, 865 (5th Cir.1983). In determining whether an issue is "genuine," courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3 Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988). "Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact." Brown v. B & G Crane Service, Inc., 172 So.2d 708, 710 (La.App. 4 Cir.1965). "[F]acts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writs denied, 596 So.2d 211 (La.1992) Simply put, a "material" fact is one that would matter on the trial on the merits.

Procedurally, the court's first task on a motion for summary judgment is determining whether the moving party's supporting documents--pleadings, depositions, answers to interrogatories, admissions and affidavits--are sufficient to resolve all material factual issues. LSA-C.C.P. art. 966(B). ³

[96-0618 La.App. 4 Cir. 3] United argues that:

1. The recent amendments to the summary judgment article LSA-C.C.P. art. 966 apply to this case; and

2. the effect of these amendments is to require that summary judgment be granted to United based on the failure of Walker to file countervailing affidavits.

We need not decide the effective date of the amendments to LSA-C.C.P. art. 966, nor need we determine the extent of the retroactivity of those [96-0618 La.App. 4 Cir. 4] amendments, as we find that other than the new language found in paragraph "D" of LSA-C.C.P. art. 966 as amended concerning the timing of the hearing and the timing of the rendering of judgment, there is no new law in spite of all the new language. Where burdens of proof and genuine issues of material fact are concerned, the amendments are merely declarative of existing law, i.e., the burden is still on the mover under LSA-C.C.P. art. 966 as amended to first show "that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law ..." Only after the mover has met this initial burden may summary judgment be rendered against "an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to his claim ..." The amendments make no changes in the definition of the operative summary judgment terms "genuine issue" and "material fact." Therefore, we are still bound by the pre-amendment jurisprudence in defining and applying those terms. And we are still bound by the pre-amendment jurisprudence in placing the burden of proof on the moving party and all that that implies. This represents no change in the law.

But United notes that the amendments to LSA-C.C.P. art. 966 state that summary judgment is favored "and shall be construed to accomplish these ends." United argues that this new language compels this Court to rule in its favor in this case. However, as was stated in the previous paragraph the burden of proof remains on the moving party; and the question this Court must decide each time we perform a de novo review of a summary judgment remains just as it was prior to the recent amendments: Is there a genuine issue of material fact? If this Court finds there is a genuine issue of material fact, we are compelled to reject summary [96-0618 La.App. 4 Cir. 5] judgment just as we did prior to the recent amendments, regardless of how much the procedure may be favored.

The new amendment declaring that summary judgment is favored can in no way change the outcome as long as the burden of proof and all that that implies remains on the mover and the standard remains one of genuine issue of material fact.

The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case showing that there are no genuine issues of material fact. Manders v. Singleton, 558 So.2d 772, 775 (La.App. 5 Cir.1990). Where the moving party fails to show that there are no genuine issues of material fact, the adverse party may rest on mere allegations or denials contained in his pleadings. Downtown Parking Service, Inc. v. Hyman, 93-1803 (La.App. 4 Cir. 3/15/94), 635 So.2d 282, 284, writ denied 94-1519 (La. 9/23/94), 642 So.2d 1298. As the recent amendments to LSA-C.C.P. art. 966 merely declare legislatively what has long been the jurisprudential rule placing the burden on the moving party until that party first makes a prima facie case, it makes no difference whether we rely on previous cases such as Manders and Downtown Parking Service or cite the amended LSA-C.C.P. art. 966.

Under La.C.C. art. 2320, "[m]asters and employers are answerable for the damage occasioned by servants and overseers, in the exercise of the functions in which they are employed." Alexander v. Rivers, 560 So.2d 999 (La.App. 4 Cir.1990). A principal may be liable for its agent's actions. La.C.C. art. 2985; Anderson Window & Patio Company, Inc. v. Edward Dumas, 560 So.2d 971 (La.App. 4 Cir.1990). The right of control and supervision, selection and [96-0618 La.App. 4 Cir. 6] engagement, payment of wages, and the power of dismissal determines whether an "employee" status exists. Ermert v. Hartford Insurance Co., 559 So.2d 467 (La.1990). An employee has a close relationship and is subject to control by the employer. An employee offers personal services for a price and is an integral part of the employer's business. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). The most important test involves the employer's control over the work. Whether the employer exercises control or supervision over the movements and services rendered by the employee is not determinative. The crucial question centers on the employer's right to exercise control. Tardo v. New Orleans Public Service Inc., 353 So.2d 409 (La.App. 4 Cir.1977), writ denied 355 So.2d 267 (La.1978).

In support of its motion for summary judgment United offered the affidavit of its manager, Victor Ruffino. Mr. Ruffino stated that he has held the position of manager for "a number of years"; is familiar with United's corporate records and that:

On March 24, 1995 United Cabs, Inc. did not own any vehicles. On March 24, 1995 United Cabs, Inc. did not own any certificates of public necessity and convenience as issued by the City of New Orleans. The vehicles associated with the United Cab fleet are not owned by United Cabs, Inc., nor are the drivers of those vehicles salaried employees of United Cabs, Inc. [Emphasis added.]

Based on this affidavit by Mr. Ruffino, United in its brief alleges that it:

[D]oes not now nor has it ever:

1. Owned any taxicabs; 2. Owned any Certificates of Public Necessity and Convenience ... which are necessary to operate a taxicab;

3. Employed any taxicab drivers;

[96-0618 La.App. 4 Cir. 7] 4. Paid any compensation to taxicab drivers;

5. Controlled the movements of taxicab drivers associated with United Cabs, Inc. [Emphasis added.]

Mr. Ruffino's affidavit is not sufficient to establish the truth of the highlighted allegations. United alleges that it paid no compensation to the taxicab drivers, but that is a far broader claim than the more modest allegation in Mr. Ruffino's affidavit which merely states that the drivers were not salaried employees. Mr. Ruffino's affidavit does not preclude the possibility of compensation in a form other than salary, e.g., commissions of some type. Moreover, Mr. Ruffino's affidavit makes no reference to United's control over the movements of the drivers. Neither does Mr. Ruffino's affidavit contradict the possibility of some other forms of control over those drivers that might suggest the existence of an employment or other form of relationship that might give rise to liability on...