96-59 La.App. 5 Cir. 1/15/97, Morgan v. ABC Manufacturer

• Decision Date: 15 January 1997
• Citation: 694 So.2d 394
• Parties: 96-59 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 394

694 So.2d 394

96-59 La.App. 5 Cir. 1/15/97

Edward MORGAN v. ABC MANUFACTURER, DEF Insurance Company, GHI Parts Suppliers, et al.

No. 96-CA-59.

Court of Appeal of Louisiana, Fifth Circuit.

Jan. 15, 1997.

Order Granting Rehearing in Part

March 13, 1997.

Lisa A. Montgomery, Diana L. Tonagel, Lobman, Carnahan and Batt, Metairie, for Plaintiff/Appellant Edward Morgan.

Ronald A. Johnson, Bettye A. Barrios, Johnson, Johnson, Barrios & Yacoubian, New Orleans, for Defendants/Appellees Worketec Temporaries, Inc., et al.

Before CANNELLA and DALEY, JJ., and GARVEY, J. Pro Tem.

[96-59 La.App. 5 Cir. 1] RICHARD J. GARVEY, Judge Pro Tem.

This appeal relates to a suit in tort filed by an employee against several defendants for injuries sustained in a work-related accident. Plaintiff, Edward Morgan, who was employed by Goldin Industries of Louisiana, Inc., (Goldin) was injured when he was struck by a piece of metal being moved by a crane. Plaintiff alleged in his lawsuit that Darryl Hines, an employee of Worktec Temporaries, Inc. (Worktec), who was assigned to work for Goldin, negligently hooked the load on the crane. Worktec argued that Darryl Hines was a borrowed employee of Goldin and thus, it was immune from tort liability under the worker's compensation statute. Based upon the jury's finding that Hines was a borrowed employee of Goldin, the trial court rendered judgment in favor of Worktec. We affirm.

[96-59 LA.APP. 5 CIR. 2] FACTS

Edward Morgan filed suit seeking damages from several unnamed and fictitious defendants and one named defendant, Crawford & Company (Crawford). The trial court granted plaintiff's motion to litigate without payment of costs in advance, pursuant to LSA-C.C.P. art. 5181, but qualified the order as follows, "if judgment for plaintiff court costs shall be paid first out of the proceeds". The parties began discovery in this matter and filed numerous motions regarding discovery, which are not pertinent to the issues in this appeal. Subsequently, Crawford filed a peremptory exception of no cause of action. On April 19, 1993, the trial court rendered judgment maintaining Crawford's exception and dismissing plaintiff's claims. A second judgment dated April 20, 1993, was also signed by the judge and rendered in favor of Crawford. On June 8, 1993, in 93-C-404, this Court denied plaintiff's application for writs to review this ruling. Plaintiff also appealed the judgments and in Morgan v. ABC Manufacturer, 93-701 (La.App. 5 Cir. 3/16/94), 637 So.2d 1076, we affirmed the trial court's judgment of April 20, 1993, maintaining Crawford's exception of no cause of action. However, we set aside that portion of the April 19, 1993, judgment stating that plaintiff's claim was dismissed with prejudice and allowed the plaintiff time to amend his petition. Subsequently, plaintiff amended his petition and added allegations related to the cause of action against Crawford.

On September 2, 1993, plaintiff amended its petition to add several named defendants, Zito Fleeting, Inc. (Zito Fleeting), Zito Towing, Inc. (Zito Towing), Riverside Ventures, Inc. (Riverside), Clark Equipment Company, Inc. (Clark), Jerry M. Behimer (Behimer), Goldin Industries of Louisiana, Inc. [96-59 La.App. 5 Cir. 3] Goldin), Worktec Temporaries, Inc. (Worktec), and their insurers. In February of 1994, Traveler's Insurance Company (Travelers), the worker's compensation insurer, intervened. Prior to trial, Travelers settled and was dismissed from the suit. Plaintiff also dismissed defendants Clark, Behimer, Goldin, and Crawford.

Subsequently, motions for summary judgment were filed by Zito Fleeting, Zito Towing, and Riverside and by Worktec and its insurers. After argument on September 21, 1994, the trial court granted the motions as to defendants Zito Fleeting, Zito Towing, and Riverside. ¹ On October 19, 1994, the trial court deferred Worktec's motion to the trial on the merits.

The case proceeded to trial and the jury rendered its verdict and finding that Darryl Hines was a borrowed employee of Goldin. The trial court adopted this verdict in its judgment of May 24, 1995. The judgment was rendered in favor of defendants Worktec and its insurers, dismissed all the claims of plaintiff with prejudice, and awarded costs in favor of Worktec and against plaintiff. Thereafter, Worktec filed a motion to tax costs. Plaintiff filed a motion for new trial as to that portion of the judgment assessing costs against him. On June 20, 1995, the trial court denied the motion for new trial. ² Plaintiff appealed the judgment as to the merits and the assessment of costs against him. Later after a hearing, the trial court rendered judgment taxing [96-59 La.App. 5 Cir. 4] costs against plaintiff in the amount of $9,010.68. ³

JURY INSTRUCTION

Plaintiff argues that the trial court erred in failing to give his requested jury instruction regarding the doctrine of statutory co-employee immunity addressed in Johnson v. Alexander, 419 So.2d 451 (La.1982). Plaintiff also argues in his brief that the jury interrogatory concerning borrowed employee was erroneous.

Defendant contends that plaintiff failed to preserve his objection because his counsel did not state the grounds for the objection. Worktec also argues that such an instruction was not necessary because it did not assert a defense based upon the statutory co-employee doctrine. As to defendant's arguments, plaintiff counters that the objection was sufficient and that the trial court was "well aware of the basis" for the objection.

LSA-C.C.P. art. 1793 creates a mandatory rule for preserving an objection to a trial court's ruling regarding requested jury instructions. Bienvenu v. State Farm Mut. Auto. Ins. Co., 545 So.2d 581, 587 (La.App. 5 Cir.1989); Bechtel v. Entringer Bakeries, Inc., 422 So.2d 1299, 1301-1302 (La.App. 5 Cir.1982). In order to preserve the right to appeal from the failure to give requested instructions or the giving of an improper instruction, a litigant adversely affected must state specifically the matter which he finds objectionable and the grounds for his objection to the jury instructions. Merely making a blanket objection, without assigning any reasons therefor, [96-59 La.App. 5 Cir. 5] is insufficient. Creppel v. Coronation Shipping Co., 572 So.2d 1051,1053 (La.App. 5 Cir.1990), writ denied, 575 So.2d 390 (La.1991), cert denied, 502 U.S 812, 112 S.Ct. 60, 116 L.Ed.2d 36 (1991); Christensen v. State Farm Mut. Auto. Ins. Co., 552 So.2d 1377, 1379-80 (La.App. 5 Cir.1989), writ denied, 558 So.2d 572 (La.1990); Hill v. Lamulle, 506 So.2d 690, 695-696 (La.App. 5 Cir.1987).

In this case the record reflects that the plaintiff, although timely objecting to the trial court's refusal to give the instruction, failed to state the grounds for his objection as required. ⁴ This does not comply with the provisions of LSA-C.C.P. art. 1793. Accordingly, under the clear and unambiguous provisions of our statutory law, plaintiff waived his right to appeal on this issue. Consequently, plaintiff cannot now complain about the trial judge's refusal to submit the requested charge to the jury. Pitard v. Davis, 599 So.2d 398, 400 (La.App. 5 Cir.1992); Hill v. Lamulle, 506 So.2d [96-59 La.App. 5 Cir. 6] at 695-696.

Moreover, the trial judge is not required to give the precise instructions submitted by either party. Fisher v. River Oaks, Ltd., 93-677 (La.App. 5 Cir. 3/16/94), 635 So.2d 1209, 1213, writ denied, 94-0932 (La.6/3/94), 637 So.2d 503; Jones v. Liberty Mut. Ins. Co., 568 So.2d 1091, 1094 (La.App. 5 Cir.1990), writ denied, 572 So.2d 72 (La.1991). The trial judge must only give instructions which properly reflect the law which is applicable to the facts of a particular case. Fisher v. River Oaks, Ltd., 635 So.2d at 1213; Jones v. Liberty Mut. Ins. Co., 568 So.2d at 1094. Adequate jury instructions are those which fairly and reasonably point up the issues and which provide correct principles of law for the jury to apply to those issues. Fisher v. River Oaks, Ltd., supra; Jones v. Liberty Mut. Ins. Co., supra. The adequacy of jury instructions must be determined in light of the instructions as a whole and the manifest error standard of review may not be ignored unless the instructions were so incorrect or inadequate as to preclude the jury from reaching a verdict based on the law and the facts. Fisher v. River Oaks, Ltd., supra; Jones v. Liberty Mut. Ins. Co., supra.

We have reviewed the jury instructions as a whole and find that the trial court properly instructed the jury on the law and how the jury was to apply the law to the facts. Consequently, we find that the trial judge did not err in refusing to give the charge submitted by plaintiff.

Likewise, plaintiff offered no objection at trial to the interrogatories presented to the jury and may not be heard to complain of the alleged insufficiency for the first time on appeal. See Nailor on Behalf of Nailor v. International Harvester Co., 430 So.2d 784 (La.App. 5 Cir.1983), writ denied, [96-59 La.App. 5 Cir. 7] 437 So.2d 1148 (La.1983) and Nichols v. U.S. Rentals, Inc., 556 So.2d 600, 608 (La.App. 5 Cir.1990), writ not considered, 558 So.2d 597 (La.1990).

Thus, plaintiff's arguments related to this assignment of error lack merit.

BORROWED EMPLOYEE STATUS

Plaintiff argues that the jury's finding that Darryl Hines was a borrowed employee of plaintiff's employer, Goldin Industries, was erroneous. Specifically, plaintiff contends that defendant Worktec failed to carry its burden of proving the suspension of its employment relationship with Hines and the existence of a new relationship between Hines and Goldin.

Here, defendant Worktec is asserting the borrowed servant doctrine to defend against plaintiff's tort claim. Defendant contends that its regular employee Darryl Hines had been borrowed by plaintiff's employer Goldin thus making the two co-employees and establishing a bar to tort recovery against Hines' general employer,...