Duncan on Behalf of Hahn v. South Cent. Bell Telephone Co.

• Decision Date: 06 December 1989
• Docket Number: No. 20958-CA,20958-CA
• Citation: 554 So.2d 214
• Parties: Diane C. DUNCAN, on Behalf of the Minor Children, Brandon Michael HAHN, Miranda Kaye Hahn and Clinton Wayne Hahn, and as Administratrix of the Succession of Brenda C. Hahn, Appellants, v. SOUTH CENTRAL BELL TELEPHONE COMPANY and XYZ Insurance Company, Appellees. 554 So.2d 214
• Court: Court of Appeal of Louisiana — District of US

Page 214

554 So.2d 214

Diane C. DUNCAN, on Behalf of the Minor Children, Brandon Michael HAHN, Miranda Kaye Hahn and Clinton Wayne Hahn, and as Administratrix of the Succession of Brenda C. Hahn Appellants, v. SOUTH CENTRAL BELL TELEPHONE COMPANY and XYZ Insurance Company, Appellees.

No. 20958-CA.

554 So.2d 214

Court of Appeal of Louisiana Second Circuit.

Dec. 6, 1989.

Writ Denied Feb. 16, 1990.

David L. White, Bossier City, for appellants.

Tucker, Jeter, Jackson & Hickman by T. Haller Jackson, III, Shreveport for appellees.

Before HALL, FRED W. JONES, Jr. and LINDSAY, JJ.

FRED W. JONES, Jr., Judge.

Plaintiff, Diane C. Duncan, on behalf of the minor children, Brandon Michael Hahn, Miranda Kaye Hahn and Clinton Wayne Hahn, and as Administratrix of the Succession of Brenda C. Hahn appealed from the judgment of the trial court granting the motion for summary judgment filed by the defendant, South Central Bell Telephone Company, (hereinafter referred to as South Central Bell) in the action by plaintiff for worker's compensation death benefits and burial expenses. For the reasons stated herein, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with the views expressed in this opinion.

Issue Presented

The primary issue presented in this appeal is whether the trial court erred in finding that the death of the decedent did not arise out of and was not in the scope and course of her employment and thus erred in granting defendant's motion for a summary judgment.

Factual Background

The pleadings and the affidavits filed in this case established that on August 8, 1986, the decedent, Brenda C. Hahn, was employed as a full-time telephone operator by South Central Bell earning wages of $1200 per month. The decedent was employed at the defendant's building located at 3115 Dee Street in Shreveport, Louisiana and on that date was scheduled to work from 9:30 a.m. until 1 p.m. and then return to work the evening shift from 5:30 p.m. until 9:30 p.m. After finishing the morning shift, the decedent left the building and exited onto the parking lot. At 1:03 p.m., as the decedent was beginning to enter her automobile, she was approached by her estranged husband who shot her twice, fatally injuring her.

On September 15, 1987, the plaintiff, in her capacity as provisional tutrix of the decedent's minor children and as administratrix of the decedent's succession, filed this action to recover worker's compensation death benefits and burial expenses, naming as defendants, South Central Bell and its alleged insurer, XYZ Insurance Company.

In her petition, the plaintiff alleged that decedent was killed while on the employees' parking lot located at 3115 Dee Street when she was attempting to exit to return to her home and that the defendant, South Central Bell, knew that its parking lot was unsafe and had undertaken to provide security for its employees. Plaintiff alleged a guard had been provided for that purpose. However, the guard was not on the parking lot on the date of the incident, having left his post unattended. Plaintiff asserted that the defendant-employer was notified of the decedent's death almost immediately after it occurred.

Plaintiff alleged that the minor children were living with their mother at the time of her death and were wholly dependent upon her earnings for support. Further, the plaintiff's husband had paid $5000 for the funeral expenses of the decedent. Plaintiff alleged that despite amicable demand upon defendant for the payment of these claims, defendant had refused to pay any benefits. Plaintiff further alleged that the Office of Worker's Compensation had determined that the decedent's death was work-related and recommended that death benefits be paid in the amount of $274.56, based on an average weekly wage of $422.40, as provided by La.R.S. 23:1232 and that burial expenses not to exceed $3000 be paid as provided by La.R.S. 23:1210. Plaintiff alleged that this recommendation was rejected by the defendant-employer and as a result of this rejection, it was necessary for the plaintiff to obtain the services of an attorney. Plaintiff prayed for a judgment awarding weekly compensation in the amount of $274.56, together with legal interest on the amount due, burial expenses and attorney's fees.

In response, the defendant filed a general denial answer alleging that it was self-insured on the date that the decedent was killed.

On July 15, 1988, the defendant filed a motion for summary judgment alleging that there were no genuine issues of material fact and that defendant was entitled to a summary judgment as a matter of law. Defendant contended that decedent was shot by her estranged husband while on defendant's premises, for reasons which were unknown but unrelated to the decedent's employment, after the decedent had completed her shift at work. The defendant alleged that the shooting did not take place during the course and scope of decedent's employment and did not arise out of decedent's employment. Defendant argued that decedent had left work and was entering her automobile to go on a personal mission and therefore was not in the course of her employment at the time of the shooting. Additionally, there was no relationship between the estranged husband and defendant so the shooting did not arise out of decedent's employment. Further, the fact that decedent worked at South Central Bell did not act to increase her risk of injury by her estranged husband. Rather, the estranged husband simply happened to find decedent at work and that was the location that he decided to confront and shoot her. Defendant argued that the mere fact that the shooting took place on defendant's parking lot did not act to give rise to a cause of action under the Louisiana Worker's Compensation Statute. Defendant noted that the Louisiana Supreme Court had recently held that for a cause of action to exist under the Louisiana Worker's Compensation Act, the employment must place the employee at a greater risk than if the employee had not been so employed.

In support of its motion for a summary judgment, defendant introduced the affidavit of Raymond W. Bowles, Operations Manager of South Central Bell. Bowles stated that on the date of the shooting, decedent worked from 9:30 a.m. until 1 p.m. and was scheduled to work the evening shift from 5:30 p.m. until 9:30 p.m. At the time of the shooting at 1:03 p.m., the decedent was off from work.

Defendant also introduced the affidavit of Todd D. Davis, Residence Marketing Manager of South Central Bell who stated that he was walking into the South Central Bell building at a few minutes past 1 p.m. on August 8, 1986 when he heard a man and woman arguing in the parking lot. The woman was struggling to get away from the man and did partially run away from him through the parking lot. The man caught up with her and in the ensuing struggle, shot her several times. The man then shot himself, injuring his cheek. Davis went to the aid of the woman who had been shot and discovered it was Brenda Hahn. Davis felt Hahn's pulse and determined that she was dead. When Davis saw that the man who had shot decedent was down on the ground, he went over to him, picked up the gun and stayed there until the police arrived. The man who shot Mrs. Hahn was her estranged husband, Michael Hahn. Hahn did not work for South Central Bell and was only on the parking lot premises on that particular day. Defendant also attached a certified copy of Hahn's conviction for manslaughter with a firearm.

In opposition, plaintiff contended that the decedent was in the course of her employment since she was departing the parking lot and was on the employer's premises at the time of the shooting which occurred only three minutes after her shift ended. Plaintiff further asserted that the accident arose out of the decedent's employment as she was required to be at that particular place by her employment at the time of the shooting. Plaintiff argued that in applying the test enunciated by the Supreme Court in Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932) (hereinafter referred to as Kern ), it was evident that decedent's employment required her to be on the premises as she was about to enter her car on her employer's parking lot and the shooting occurred while she was at a place her employment required. Plaintiff generally argued that applying the jurisprudential rules dealing with the "arising out of" and "in the course and scope of" requirements, particularly the Kern test which had been universally applied in assault cases, made it clear that plaintiff's claim was compensable. Plaintiff did not file any counter-affidavits in opposition to defendant's motion.

The trial court granted defendant's motion for a summary judgment. First, it noted that an employee protected by the worker's compensation statute is entitled to receive benefits when he receives personal injury by accident arising out of and in the course of his employment, pursuant to La.R.S. 23:1031. Then the trial court gave great weight to the recent Supreme Court decision of Raybol v. Louisiana State University, 520 So.2d 724 (La.1988) (hereinafter referred to as Raybol ), where an assault was the basis of a claim for worker's compensation benefits. The trial court also reviewed a number of cases cited by the parties which construed the "arising out of" as well as the "in the course and scope of" requirements of the statute in the context of an assault on an employee in the work setting.

After examining the standards set forth in the Raybol decision, the trial court concluded that due to the close proximity of the time of the incident with the time that decedent "punched out", it could be stated that she was in the course of her employment, but "barely". Decedent was only remotely still within the course of her employment as she prepared to get into her automobile. In examining the "in the course of" r...