96-1246 La.App. 4 Cir. 1/29/97, Bolton v. Tulane University of Louisiana

• Decision Date: 29 January 1997
• Citation: 692 So.2d 1113
• Parties: 96-1246 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1113

692 So.2d 1113

96-1246 La.App. 4 Cir. 1/29/97, 117 Ed. Law Rep. 1161

Mae Ola BOLTON v. TULANE UNIVERSITY OF LOUISIANA; State Farm Mutual Automobile Insurance Co.; National Car Rental Systems, Inc.; Allstate Indemnity Co. and Hartford Insurance Co. Of the Southeast.

No. 96-CA-1246.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 29, 1997.

Order Clarifying Decision on

Grant of Rehearing April 9, 1997.

Clifton E. Cardone, Cardone Law Firm, New Orleans, for Plaintiff/Appellant.

Donna Powe Green, David P. Curlin, Trinchard & Trinchard, New Orleans, for National Car Rental System, Inc.

Christopher E. Lozes, Lozes & Cambre, New Orleans, for Allstate Insurance Co.

John J. Erny, III, Frederick A. Miller & Associates, Metairie, for Administration Tulane Educational Fund, Hartford Fire Insurance Company And Elizabetth Yopp.

C. Gordon Johnson, Jr., Charles L. Chassaignac, IV, Porteous, Hainkel, Johnson and Sarpy, New Orleans, for State Farm Mutual Automobile Insurance Co.

Before BYRNES, ARMSTRONG and PLOTKIN, JJ.

[96-1246 La.App. 4 Cir. 1] PLOTKIN, Judge.

This consolidated appeal involves four separate rulings on motions for summary judgment contained in a single trial court judgment, all of which turn on a determination of whether plaintiff Mae Ola Bolton was in the course and scope of her employment as an assistant women's basketball coach at defendant Tulane University at the time she was injured in a car accident. For the reasons which follow, we reverse the trial court judgments and grant summary judgment in favor of defendants Tulane University, Hartford Insurance Co., Elizabeth Yopp, State Farm Insurance Co., and Allstate Indemnity Co., dismissing them from the suit.

Consolidated with the above judgment for purposes of this appeal is a summary judgment in the same case dismissing defendant National Car Rental Systems, Inc. (hereinafter referred to as "National"), owner and alleged insurer of the car in which Ms. Bolton was riding at the time of the accident. That judgment is based on the trial court's finding that National had no insurance liability for the accident in question under the contract governing the relationship between the parties. Because we find that genuine issues of material fact exist, we reverse the [96-1246 La.App. 4 Cir. 2] summary judgment in favor of National. The case is remanded to the trial court for further proceedings on the issue of National's liability to Ms. Bolton.

I. Facts and procedural history

The facts of the instant case are undisputed. Plaintiff Ola Mae Bolton was hired by Candy Harvey, Tulane's head women's basketball coach, as an assistant coach effective in August of 1993. Among Ms. Bolton's most important job duties were responsibilities related to the recruitment of new players for the team, responsibilities she shared with the other assistant coach, Elizabeth Yopp, who had been working for Ms. Harvey for some two years prior to the time Ms. Bolton was hired. Both Ms. Bolton and Ms. Yopp received a set monthly salary. As a part of their recruiting activities, they were required to travel, including some late night travel and some overnight travel during which they had to stay in hotels. When travelling on a recruitment trip, the assistant coaches typically drove vehicles rented on a Tulane account, or paid for with a Tulane credit card. All expenses of these recruitment trips were paid by Tulane.

During official National College Athletic Association ("NCAA") "quiet periods," a prospective basketball team member could travel to a university for an "official visit," paid for by the university. Although Tulane often paid for prospective players to fly to New Orleans for an "official visit," at other times--especially when the student lived close to New Orleans or lived in an area which was not easily accessible by air--the assistant coaches personally drove from New Orleans to the student's home and brought the student back to Tulane for the official visit. At the end of the visit, the assistant coaches personally drove the student back to her home. These types of trips were considered typical recruitment trips which were paid for by Tulane.

[96-1246 La.App. 4 Cir. 3] The women's basketball team coaches arranged such an official visit for Yvette Porter, a high school senior basketball player from Louisville, Mississippi, for a weekend during a "quiet period" on November 6--7, 1993. Because Ms. Porter lived in an area not easily accessible by air, the decision was made for the assistant coaches to provide automobile transportation for Ms. Porter, as described above. Prior to the weekend, the coaches agreed that Ms. Bolton would drive to Jackson, Mississippi, to retrieve Ms. Porter after she played in a softball game for her high school on Saturday, November 6. Ms. Yopp was to make the four-hour trip to return Ms. Porter to her home in Louisville, Mississippi, on Sunday, November 7. In anticipation of the trip, Ms. Bolton rented an automobile from National.

Ms. Bolton successfully completed her part of the agreement, driving to Jackson, Mississippi and bringing Ms. Porter back to Tulane on the morning of Saturday, November 6. ¹ Ms. Porter stayed in New Orleans overnight, engaging in various activities with team members and the coaches, and visiting with Tulane professors. During the entire weekend, one of the coaches transported Ms. Porter to activities in the automobile rented from National. Near the end of her stay in New Orleans, Ms. Porter attended a practice session of the Tulane women's basketball team as an observer. Thereafter, she was treated to dinner at Copeland's restaurant on St. Charles Avenue with a couple of the team members and all three coaches.

[96-1246 La.App. 4 Cir. 4] The dinner at Copeland's lasted longer than the coaches had anticipated, not ending until approximately 9 p.m. Nevertheless, Ms. Porter had to be returned to her home in Louisville, Mississippi, prior to 8 a.m. on the morning of Monday, November 8, pursuant to an NCAA rule. As Ms. Yopp prepared for the return trip to Louisville, Mississippi, Ms. Bolton "volunteered" to accompany her on the trip in order to help with the driving because of the lateness of the hour. Neither Ms. Yopp nor Ms. Harvey asked her to make the trip, but they were very pleased when she decided to do so. ²

The trip from New Orleans to Louisville, Mississippi, was apparently uneventful. The assistant coaches took turns driving, and Ms. Porter was successfully delivered to her home prior to the deadline. However, during the trip back to New Orleans from Louisville, Mississippi, sometime after midnight, while Ms. Yopp was driving the automobile, an accident occurred on Highway 15 south of Louisville, Mississippi. Ms. Yopp apparently fell asleep at the wheel; Ms. Bolton was allegedly already sleeping at the time. The car went down a ravine; Ms. Bolton sustained severe injuries, including a broken neck.

Tulane paid workers' compensation benefits to Ms. Bolton for some period of time after the accident; additionally, Tulane paid many of Ms. Bolton's medical expenses. Thereafter, Ms. Bolton filed a tort action against the following defendants: Ms. Yopp, driver of the automobile; Tulane, Ms. Yopp's employer; Hartford, Tulane's insurer (hereinafter collectively referred to as "Tulane"); State Farm, Ms. Yopp's personal automobile liability insurer (hereinafter referred to as "State Farm"); National, owner of the automobile and insurer under a contract; [96-1246 La.App. 4 Cir. 5] and Allstate Indemnity Co., Ms. Bolton's uninsured motorist (UM) insurer (hereinafter referred to as "Allstate"). All of the defendants responded by filing motions for summary judgment.

The motion for summary judgment filed by Tulane was premised on the argument that Ms. Bolton's exclusive remedy against Tulane is workers' compensation under the provisions of LSA-R.S. 23:1032 because Ms. Bolton was negligently injured by a co-employee while in the course and scope of her employment. Because the workers' compensation tort immunity defense is not personal to the employer, State Farm and Allstate premised their motions for summary judgment on the same argument, as described in greater detail below. Ms. Bolton filed a cross motion for summary judgment, claiming that she was not in the course and scope of her employment at the time of the accident.

The trial court granted Ms. Bolton's motion for summary judgment, finding that she was not in the course and scope of her employment with Tulane at the time of the accident. Based on the same finding, the trial court denied the motions for summary judgment filed by Tulane, State Farm, and Allstate. Tulane, State Farm, and Allstate appeal the summary judgment in favor of Ms. Bolton on the course and scope issue. State Farm also appeals the denial of its motion for summary judgment. Tulane and Allstate filed applications for supervisory writs in this court seeking review of the judgments denying their motions for summary judgment on the course and scope issue; the applications for supervisory writs were converted to appeals and consolidated with this appeal.

The motion for summary judgment filed by National was premised on provisions of the rental agreement signed by Ms. Bolton. The trial court granted the motion for summary judgment filed by National based on the language of the [96-1246 La.App. 4 Cir. 6] contract between the parties. Ms. Bolton appealed the judgment granting the motion for summary judgment in favor of National.

II. Standard for deciding motion for summary judgment

The standard for reviewing a motion for summary judgment was recently stated by this court in Daniel v. Blaine Kern Artists, Inc., 96-1348 (La.App. 4th Cir. 9/11/96), 681 So.2d 19, as follows:

Appellate courts review summary judgments de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any...