Arabie Bros. Trucking Co. v. Gautreaux

• Decision Date: 04 August 2004
• Docket Number: No. 2003 CA 0120.,2003 CA 0120.
• Citation: Arabie Bros. Trucking Co. v. Gautreaux, 880 So.2d 932 (La. App. 2004)
• Parties: ARABIE BROTHERS TRUCKING CO. and American Interstate Insurance Company v. Patrick GAUTREAUX, Graham Neill, Individually and As Owner of A & G Tree and Stump Removal, A & G Tree and Stump Removal, and TTC, Inc.
• Court: Court of Appeal of Louisiana

880 So.2d 932

ARABIE BROTHERS TRUCKING CO. and American Interstate Insurance Company v.Patrick GAUTREAUX, Graham Neill, Individually and As Owner of A & G Tree and Stump Removal, A & G Tree and Stump Removal, and TTC, Inc.

No. .

Court of Appeal of Louisiana, First Circuit.

August 4, 2004.

Rehearing Denied September 21, 2004.

Lawrence B. Frieman, Metairie, for Plaintiffs/AppelleesArabie Brothers Trucking Co. and American Interstate Insurance Company.

Michael L. Hebert, Baton Rouge, for Defendant/AppellantPatrick Gautreaux.

Before: PETTIGREW, DOWNING, and McCLENDON, JJ.

PETTIGREW, J.

In this workers' compensation case, Patrick Gautreaux, appeals the judgment of the Office of Workers' Compensation(OWC), in favor of Arabie Brothers Trucking Co.(Arabie) and American Interstate Insurance Company(American).The OWC judge determined that Mr. Gautreaux was not within the course and scope of his employment with his direct employer A & G Tree and Stump Removal (A & G) at the time of his accident and injury.For the reasons that follow, we affirm in part, reverse in part, render in part, and remand.

FACTS AND PROCEDURAL HISTORY

On January 27, 2000, Mr. Gautreaux was seriously injured when a large tree, which he was cutting, fell, crushing Mr. Gautreaux to the ground.At the time of the accident, Arabie was clearing a commercial site for Lamar Contractors in Houma, Louisiana.Mr. Gautreaux was directly employed by A & G and sub-contracted by Arabie to grind and remove two tree stumps at the site.A & G did not have workers' compensation insurance.Following the accident, Arabie, through its workers' compensation insurer, American, began paying workers' compensation benefits to and medical expenses on behalf of Mr. Gautreaux.On October 5, 2000, Arabie and American filed a disputed claim for compensation and petition for declaratory judgment against Mr. Gautreaux, Graham Neill, individually and as owner of A & G, A & G, and T.T.C. Illinois, Inc.,¹ asserting that Mr. Gautreaux was not in the course and scope of his employment with A & G at the time of the accident and that the accident did not arise out of his employment.Plaintiffs sought indemnification from Mr. Neill and/or A & G, and a judgment declaring that no further workers' compensation benefits were due to Mr. Gautreaux.

Mr. Gautreaux answered, reconvened, and filed a cross claim.In his reconventional demand, Mr. Gautreaux asserted that Arabie was his employer, statutory employer, or borrowing employer, or, alternatively, that he was an independent contractor engaged in manual labor, entitling him to workers' compensation benefits from Arabie and American.In his cross claim, Mr. Gautreaux contended that Mr. Neill, individually and as owner of A & G, was his employer or statutory employer, entitling him to workers' compensation benefits.

Trial in the matter was held and judgment signed on December 4, 2002, in favor of plaintiffs.²The OWC judge determined:

1) Mr. Gautreaux's injuries did not occur while in the course and scope of his employment with A & G and, therefore, Mr. Gautreaux was not entitled to further workers' compensation benefits;

2) Arabie's claim for indemnification was granted;

3) Arabie was entitled to take advantage of all credits and offsets allowed; and

4) Neil Arabie, Gary Pitre, and Bryan Guillot did not violate La.R.S. 23:1208.

It is from this judgment that Mr. Gautreaux has appealed, assigning the following specifications of error:³

1) The OWC judge erred in finding that Mr. Gautreaux was not an employee of Arabie for purposes of workers' compensation benefits 2) The OWC judge erred in not finding that Neil Arabie violated La.R.S. 23:1208;

3) The OWC judge erred in not ruling that Mr. Gautreaux's medical claims were not paid or not paid timely;

4) The OWC judge should have awarded attorney fees and penalties; and

5) Mr. Gautreaux is entitled to attorney fees for this appeal.

Arabie answered the appeal, contending that the OWC judge erred in admitting into evidence the transcribed recorded statements of Gary Pitre and Bryan Guillot and the cassette recording of statement purportedly made by Bryan Guillot.⁴

DISCUSSION

An employee who sustains a personal injury by accident arising out of and in the course and scope of his employment is entitled to collect workers' compensation from his employer.La.R.S. 23:1031(A).Thus, as a threshold requirement, a workers' compensation claimant bears the initial burden of establishing by a preponderance of the evidence "personal injury by accident arising out of and in the course of his employment."Hoy v. Gilbert, 98-1565, p. 3(La.3/2/99), 754 So.2d 207, 209(per curiam);Bruno v. Harbert Intern. Inc.,593 So.2d 357, 360(La.1992).

The terms "arising out of" and "in the course of" in Section 1031 are dual requirements that cannot be considered in isolation from each other.In a close case, a strong showing with reference to one requirement may compensate for a weak showing with reference to the other requirement.When there is a weak showing with respect to both requirements, the employee is not entitled to compensation benefits.Guillory v. Interstate Gas Station, 94-1767, p. 3(La.3/30/95), 653 So.2d 1152, 1154;Lewis v. Houma Industries, XXXX-XXXX, p. 3(La.App. 1 Cir.5/10/02), 818 So.2d 956, 957-958.

To evaluate the "course of employment" requirement, the court focuses on whether the employee sustains an injury while actively engaged in the performance of his duties during working hours, either on the employer's premises or at a place contemplated by employment activities.This inquiry focuses upon the time and place relationship between the injury and the employment.When considering the "arising out of employment" requirement, the court inquires into the character or origin of the risk suffered by the employee and determines whether this risk was incidental to the employment.An injury arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment.Mitchell v. Industrial Fill Materials, Inc., 2002-2021, p. 3(La.App. 1 Cir.7/2/03), 859 So.2d 36, 39;Lewis, XXXX-XXXX at 3-4, 818 So.2d at 958.

Furthermore, courts have consistently held that an employee is protected during work hours, despite minor deviations from instructions or place of work, if what he does could reasonably be contemplated as humanly incidental to his service as an employee and does not unreasonably increase the risk of injury.Hoy, 98-1565at 3, 754 So.2d at 209;Robinson v. F. Strauss & Son, Inc.,481 So.2d 592, 593(La.1986).

It is well settled that a determination regarding the course and scope of employment is subject to the manifest error standard of review.Lewis, XXXX-XXXX at 4, 818 So.2d at 958.Generally, the mere fact that an employee fails to follow specific instructions of his employer does not normally take him out of course and scope of his employment.Harkness v. Olcott Stone Motors,203 La. 947, 953, 14 So.2d 773, 775(1943);Sears v. Peytral,151 La. 971, 975-976, 92 So. 561, 563(1922).Moreover, the relationship of employer/employee is a contractual relationship and, therefore, resolves itself into a question of fact to be determined by evidence to be presented in a compensation case.Menard v. Brown & Cassidy Warehouse, Inc.,72 So.2d 891, 893(La.App. 1 Cir.1954).

In the instant case, the OWC judge determined that Mr. Gautreaux's injuries did not occur while in the course and arising out of his employment with A & G, and, therefore, he was not entitled to further workers' compensation benefits.This finding is not in dispute.In fact, Mr. Gautreaux stipulates in brief to this court that his accident did not occur in the course and scope of his employment with A & G.

As set forth in La. Civ.Code art. 1853, "[a] judicial confession is a declaration made by a party in a judicial proceeding" and "constitutes full proof against the party who made it."A judicial admission or confession is an express acknowledgement of adverse facts.Howard Trucking Co., Inc. v. Stassi,485 So.2d 915, 918(La.1986), cert. den.,479 U.S. 948, 107 S.Ct. 432, 93 L.Ed.2d 382(1986).It has the effect of waiving evidence as to the subject of the admission or withdrawing the subject matter of the confession from issue.LIGA/Mortem Risk Management v. Franks, 99-0670, p. 5(La.App. 1 Cir.6/23/00), 768 So.2d 622, 625, writ denied,2000-2201 (La.10/13/00), 771 So.2d 652.

The stipulation by Mr. Gautreaux that he was not in the course and scope of his employment with A & G at the time of the accident is a judicial confession of facts.Thus, although this court may not agree with same, we are bound (as is Mr. Gautreaux) to give this stipulation legal effect.Accordingly, the OWC judge's finding concerning this issue is not subject to review by this court.La. Civ.Code art. 1853;La.Code Civ. P. art. 2164.See alsoRabathaly v. Breaux, 99-244, p. 4(La. App. 5 Cir.7/27/99), 738 So.2d 1182, 1184;Favrot v. Bates,1 McGl. 130(La.App.1881).

However, our inquiry does not end here.As noted by Mr. Gautreaux, the fact that he was not in the course and scope of his employment with A & G at the time of the accident does not resolve all the potential legal issues of liability for Arabie and American.There remain several unanswered questions regarding the employer/employee relationship between Mr. Gautreaux and Arabie.

In its judgment, the OWC judge specifically delineated the issues addressed below as follows:

The issues presented to this Court at trial for consideration were: 1) whether or not the defendant, Patrick Gautreaux, was injured while in the course of and arising out of his employment with defendant, A & G Tree and Stump Removal, and if so, whether or not the defendant, Patrick Gautreaux, is entitled to workers' compensation benefits; 2) whether or not the defendant, A & G Tree and Stump Removal, is liable

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