Ermert v. Hartford Ins. Co.
| Decision Date | 12 March 1990 |
| Docket Number | 88-C-2431,88-C-2435 and 88-C-2445,Nos. 88-C-2391,s. 88-C-2391 |
| Citation | 559 So.2d 467 |
| Parties | Karl F. ERMERT, III v. HARTFORD INSURANCE COMPANY, et al. 559 So.2d 467 |
| Court | Louisiana Supreme Court |
Joseph S. Palermo, Jr., Bernard, Cassisa, Saporito & Elliott, Metairie, for applicant-defendant--Hartford Ins. Co.
Thomas G. Buck, Blue, Williams & Buckley, Metairie, for other respondents.
Daniel L. Dysart, Dysart, Sanborn & Tabary, Chalmette, for applicant--Leon Brumfield & Allstate Ins. Co.
Jerald N. Andry, New Orleans, Gilbert V. Andry, III, for applicant-plaintiff--Karl F. Ermert, III.
Raymond A. Pelleteri, Ward & Clesi, New Orleans, for applicant--R. Bourcq, J.C. Caillouette & State Farm Ins. Co.
The major questions in this case in which a duck hunter negligently shot a companion are (1) whether a juridical entity in the nature of an unincorporated association had been formed between the negligent hunter and his hunting friends (presenting the possibility that the association and its members could be held liable) and (2) whether the negligent hunter was acting in the scope of his employment at the time of the accident so as to render his employer vicariously liable. The trial court held that the negligent hunter's employer was vicariously liable but that his hunting friends were not, although they were members of an unincorporated association with him. The court of appeal reversed, holding that the negligent hunter was not acting in the scope of his employment at the time of the accident but that his hunting friends who were present at the time of the accident were vicariously liable as members of an unincorporated association with him. Ermert v. Hartford Ins. Co., 531 So.2d 506 (La.App. 4th Cir.1988). We reverse and reinstate the trial court's judgment. None of the tortfeasor's hunting friends was guilty of any fault that caused the victim's injury, and they had not formed an unincorporated association because the group did not intend to create a separate juridical entity. The negligent hunter was acting within the scope of his employment because as chief executive and majority stockholder of his corporate business he had established the practice of using the camp and his relationship with his hunting friends for the purpose of furthering his employer's business interests.
Plaintiff, Karl F. Ermert, III, was accidentally shot in the foot by Kenneth Decareaux while a guest at a hunting camp. The hunting camp was located on Bayou Bienvenue near Lake Borgne in the marshlands of St. Bernard Parish. It was built in 1975 on property leased from the owner by the defendant Russell Larrieu. Larrieu, Decareaux, Alkaney Cummings, Leon Brumfield, Joseph Caillouette and Robert Bourcq, all long-time friends or acquaintances, constructed the camp building. They had been involved in groups that had hunted together at two other camps, the first of which was destroyed by Hurricane Betsy and the second of which burned down. Only Larrieu contributed money toward the construction of the new camp. The rest of the men contributed various materials, furniture and/or labor. In a transaction separate from the ground lease, Larrieu negotiated an oral lease to hunt ducks on ponds owned by one Dubuchel. Each man paid approximately $52 per year to cover the annual $120 rental for the ponds, as well as supplies for weekends when the group hunted together. Larrieu held the remainder of the funds, and he used these funds for necessities such as butane, utensils, and pots and pans. The cost of groceries was divided equally. The other hunters always sought Larrieu's permission before visiting or bringing guests to the camp as they all considered Larrieu to be its owner; however, he did not deny permission so guests were there fairly frequently.
The group had no written constitution, by-laws or rules. Some basic written safety rules and regulations had been formulated for the earlier camps at monthly meetings held in the 1960's, but these rules were no longer followed by the new group. Although no one voted to abolish these rules, indeed no one voted on anything, the rules "went out of the window" because the group of hunters were friends and got along well together. There were no formal meetings. The men had informal discussions and were generally in agreement about hunting safety matters. The only "rules" the camp had regarding hunting safety were simply common sense guidelines to which all hunters, whether experienced or not, should adhere. Among the guidelines adhered to by the group was the rule that guns should always be empty while in the camp, loaded only while in the duck blinds, and unloaded prior to leaving the blinds for the camp. The men had also decided that they would attempt to tame wild animals near the camp, so they agreed not to shoot at animals near the camp.
Besides being a member of the hunting group, Decareaux was president of and majority stockholder in Nu-Arrow Fence Company. He allowed Larrieu to purchase materials for the construction of the camp at cost through Nu-Arrow's account and then reimburse Nu-Arrow, and he also donated scrap lumber from old fences to Larrieu for use at the camp. In addition, he used Nu-Arrow equipment to help with the camp's construction, and he often transported materials to the camp in Nu-Arrow trucks without compensation.
As the president of Nu-Arrow, Decareaux was expected to seize any opportunity to further the business regardless of time and place. Accordingly, once the camp was built, Decareaux used it to entertain his employees and to promote his business. He invited all of the Nu-Arrow employees to the camp either at the same time or a few at a time. Decareaux paid for their expenses out of the Nu-Arrow petty cash fund. He invited the company-sponsored softball team to the camp as well, because several employees were on the team. Decareaux also took advantage of the camp to develop customers and make sales. He had sold fences to the majority of his fellow hunters, and he derived other business through references given by the regular members of the hunting group. He invited people who had purchased fences from Nu-Arrow to the camp, and these customers also referred business to Nu-Arrow. Decareaux testified that some of the guests were invited because they were relatives or friends, but the relatives were employees and the friends were customers. Thus Nu-Arrow both derived economic benefit and provided economic assistance to the hunting camp.
At the time of the accident, plaintiff Ermert was spending the weekend as a guest of Russell Larrieu at the hunting camp. Ermert, Larrieu, Brumfield, Caillouette, Bourcq and Decareaux were at the hunting camp to build duck blinds for the upcoming duck season. Because he generally worked on Saturdays, Alkaney Cummings had not been at the camp for some time, and he was not there that weekend. The six men spent Saturday building the duck blinds. Saturday night they all ate, drank a little, talked for a while and went to bed.
Decareaux and Caillouette were the unofficial cooks for the group. As the members of the group were awakening on Sunday morning, someone told Decareaux that there was a nutria swimming across the canal. He looked and saw it himself, and he asked Caillouette, who was in the outhouse, if he was interested in cooking it. Caillouette agreed, so Decareaux picked up a shotgun and some shells. In violation of the general agreement among the group, he began loading the shells into the shotgun as he was walking in the camphouse. The gun accidentally fired and struck Ermert's foot, severely injuring it. He was rushed to a hospital, where several surgeries were performed. As a result of this injury, Ermert, a welder, is permanently disabled.
Ermert brought suit against Decareaux, Nu-Arrow, and their insurers. In his first supplemental and amending petition, Ermert alleged that Decareaux, Larrieu, Caillouette, Bourcq, Cummings and Brumfield and their respective insurers should be held jointly and solidarily liable as defendants because of their alleged joint venture or partnership relationship. Specifically, Ermert claimed that the hunting camp was owned by an unincorporated association composed of the six hunters in the group. Ermert alleged that Larrieu received annual dues from the other members of the alleged joint venture; that at the time of the accident, the named defendants were at the camp for the purpose of constructing improvements; and that the members of the association were liable to plaintiff for acts of negligence including failure to have rules against the unsafe and hazardous practice of allowing persons in the camp to load weapons in the camp; failure to have rules against the unsafe and hazardous practice of allowing persons in the camp to discharge weapons in the camp; and failing to enforce such rules if they existed. He also claimed that the members were vicariously liable for the negligence of Decareaux because of his co-membership with them.
The trial court granted a motion for summary judgment and maintained exceptions of no cause of action in favor of the hunting group defendants. Plaintiff appealed this decision and the Court of Appeal for the Fourth Circuit reversed, concluding:
The evidence shows that there was a "club." Whether the men were part of a juridical entity which is liable for the negligent shooting or for their failure to formulate safety rules is a question of fact. More information on the organization, membership, meeting and club rules could support a finding of negligence. The contradictory record does not support summary judgment.
Ermert v. Hartford Ins. Co., 480 So.2d 999, 1001 (La.App. 4th Cir.1985), writ denied, 484 So.2d 672 (La.1986).
The court of appeal thus remanded for trial on the merits.
After a bench trial, the district court issued extensive and detailed reasons for judgment. The...
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