Chevis v. Rivera

• Decision Date: 24 September 2021
• Docket Number: 2021 CA 0124
• Citation: Chevis v. Rivera, 329 So.3d 831 (La. App. 2021)
• Parties: Kenneth CHEVIS v. Ernesto RIVERA and Apache Industrial Services, Inc.
• Court: Court of Appeal of Louisiana — District of US

329 So.3d 831

Kenneth CHEVIS

v.Ernesto RIVERA and Apache Industrial Services, Inc.

2021 CA 0124

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: SEPTEMBER 24, 2021

Lindsay C. Rabalais, D. Scott Rainwater, Baton Rouge, LA, Counsel for Defendant/Appellant, Apache Industrial Services, Inc.

Pride J. Doran, Quincy L. Cawthorne, Opelousas, LA, Counsel for Plaintiff/Appellee, Kenneth Chevis

BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ.

McCLENDON, J.

This appeal is taken from the trial court's judgment denying summary judgment in favor of defendant-employer and granting partial summary judgment in favor of plaintiff-employee.For the reasons that follow, we reverse in part.

FACTS AND PROCEDURAL HISTORY

On April 4, 2018, Kenneth Chevis and Ernesto Rivera were disassembling scaffolding in the course and scope of their employment with Apache Industrial Services, Inc.(Apache).Chevis paused working to check the time on his watch, at which time Rivera verbally admonished Chevis.When Chevis did not respond to Rivera's verbal admonishment, Rivera used a piece of scaffolding material to make contact with Chevis's hardhat (the April 4, 2018 incident).

Subsequently, Chevis filed the instant tort suit against Apache and Rivera in the 19^th Judicial District Court, alleging that he was injured as a result of the April 4, 2018 incident.Chevis described Rivera's actions as "intentional and negligent," and sought damages accordingly.Litigation ensued.

Preceding this appeal, the parties filed competing motions for summary judgment.Chevis filed a motion for partial summary judgment alleging that Rivera's action at the time of the April 4, 2018 incident constituted an intentional tort and that Apache was vicariously liable for Rivera's action.¹Chevis attached his November 14, 2018 deposition and his petition for damages in support of his motion.Apache filed an opposition to Chevis's motion, attaching as exhibits Rivera's affidavit and Chevis's September 12, 2019 deposition.²Additionally, Apache filed its own motion for summary judgment seeking dismissal of Chevis's tort suit on the basis that Chevis's exclusive remedy was through workers’ compensation.Apache argued that Chevis could not produce evidence that his workplace injury was the result of an intentional act as required to recover outside of workers’ compensation.Apache attached as exhibits Chevis's November 14, 2018 deposition, Chevis's September 12, 2019 deposition, Rivera's affidavit, and the affidavit of Chris Gascon, who supervised Apache's handling of Chevis's claim in his role as Apache's Safety Director.

The parties’ competing motions came before the trial court for hearing on June 29, 2020.The trial court ruled in favor of Chevis and against Apache.A written judgment was executed on August 12, 2020, which provided in pertinent part:

IT IS HEREBY ORDERED that the Motion for Summary Judgment filed on behalf of Defendant, Apache, is DENIED.

IT IS HEREBY ORDERED that Plaintiff's Motion for Partial Summary Judgment is GRANTED in favor of Plaintiff and against Defendant, Apache, holding (1) the incident that occurred on April 4, 2018 between Plaintiff, Kenneth Chevis, and Defendant, Ernesto Rivera, constituted an intentional tort under applicable Louisiana law, and (2)Defendant, Apache, is vicariously liable for the intentional tort committed by Defendant, Ernesto Rivera, onto Plaintiff, Kenneth Chevis, on April 4, 2018.

IT IS FURTHER ORDERED that in accordance with Louisiana [Code of Civil Procedure]Article 1915(B)(1), this Judgment is designated as a final judgment after an express determination that there is no just reason for delay.

Apache has appealed, challenging each ruling contained in the August 12, 2020 judgment.³Apache asserts that the trial court erred: (1) in denying Apache's motion for summary judgment seeking the dismissal of the instant suit on the basis that Chevis's exclusive remedy is through workers’ compensation; (2) in granting that portion of Chevis's motion for partial summary judgment seeking a ruling that the April 4, 2018 incident constituted an intentional act; and, (3) in granting that portion of Chevis's motion for partial summary judgment seeking a ruling that Apache is vicariously liable for Rivera's action.

SUMMARY JUDGMENT

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate.Leet v. Hospital Service District No. 1 of East Baton Rouge Parish, 2018-1148(La.App. 1 Cir.2/28/19), 274 So.3d 583, 587.After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.LSA-C.C.P. art. 966(A)(3).The burden of proof is on the mover.LSA-C.C.P. art. 966(D)(1).

In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact.Sanders v. Swiftships, Inc., 2017-0774(La.App. 1 Cir.9/20/18), ––– So.3d ––––, 2018 WL 4520091, *4, writ denied, 2018-1912(La.1/18/19), 262 So.3d 289.A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate.Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577(La.App. 1 Cir.2/21/20), 298 So.3d 191, 194-95, writ denied, 2020-00480 (La.6/22/20), 297 So.3d 773.A material fact is one that potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute.Juneau v. Louisiana Tennis Association, Inc., 2019-0964(La.App. 1 Cir.2/27/20), 300 So.3d 12, 17.Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case.Galliano v. CB & I, LLC, 2018-0844(La.App. 1 Cir.4/10/19), 275 So.3d 906, 909.

When deciding whether to grant or deny a motion for summary judgment, the trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence.Leisure Recreation & Entertainment, Inc. v. First Guaranty Bank, 2019-1698(La.App. 1 Cir.2/11/21), 317 So.3d 809, 823.Any doubt as to a dispute regarding a genuine issue of material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.Collins,298 So.3d at 195.

THE INTENTIONAL ACT EXCEPTION

Generally, an employee's exclusive remedy for injuries suffered during the course and scope of employment is through the Workers’ Compensation Act(the Act), which provides immunity from civil liability in favor of an employer.However, an exception to the general rule is set forth in LSA-R.S. 23:1032(B) : the exclusivity provisions of the Act do not apply when an employee is injured as a result of an intentional act committed by a co-employee during the course and scope of employment (intentional act exception).⁴Cole v. State Department of Public Safety & Corrections, 2001-2123(La.9/4/02), 825 So.2d 1134, 1138-39.It is clear from a review of legislative history and jurisprudence interpreting the meaning of intent that the intentional act exception to the exclusivity of the Act in general is to be applied in very strict and limited circumstances.Cole,825 So.2d at 1141.Pursuant to these legal precepts, Chevis's right to pursue the instant tort suit against Apache depends on whether the April 4, 2018 incident in which Chevis was injured constituted an intentional act subject to the very narrow intentional act exception.Accordingly, we first consider whether the trial court properly found that Rivera's actions constituted an intentional act.SeeLSA-C.C.P. art. 966(A)(3).

In Bazley v. Tortorich,397 So.2d 475, 480(La.1981), the Louisiana Supreme Court defined "intent," in the context of the intentional act exception, to mean that the actor either (1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knew that that result was substantially certain to follow from his conduct, whatever his desire was as to that result.Bazley,397 So.2d at 482.Subsequent jurisprudential discussions of the "substantial certainty" requirement have established that believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.Miller v. Sattler Supply Co., Inc., 2013-2558(La.1/27/14), 132 So.3d 386, 387."Substantially certain to follow" requires more than a reasonable probability that an injury will occur, and "certain" has been defined to mean "inevitable" or "incapable of failing."Stanley v. Airgas-Southwest, Inc., 2015-0274(La.4/24/15), 171 So.3d 915, 916.Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.Miller,132 So.3d at 387.

In support of his motion for partial summary judgment, Chevis relies on Caudle v. Betts,512 So.2d 389(La.1987), which considered the intentional act exception in the context of the intentional tort of battery.In Caudle,the plaintiff employee sought to recover damages sustained when his employer's chief executive officer (CEO) shocked the plaintiff's neck with an electric automobile condenser as a practical joke during horseplay.Caudle explained that although workers’ compensation shall be an employee's exclusive remedy against his employer for an unintentional injury covered by the act, when an employee seeks to recover from his employer...