Fox v. Commercial Union Ins. Co., 7947

Decision Date11 March 1981
Docket NumberNo. 7947,7947
Citation396 So.2d 543
PartiesBobbye T. FOX et al., Plaintiffs-Appellants, v. COMMERCIAL UNION INSURANCE COMPANY et al., Defendants-Appellees.
CourtCourt of Appeal of Louisiana — District of US

Kramer & Laird, Bernard Kramer, Alexandria, for plaintiffs-appellants.

Trimble, Randow, Smith & Wilson, Alonzo P. Wilson, Alexandria, and Bryant W. Conway, Baker, for defendants-appellees.

Before CULPEPPER, FORET and SWIFT, JJ.

FORET, Judge.

This is a wrongful death action. Bobbye T. Fox, Michael Fox, and Kim Fox Crooks (Plaintiffs) are the surviving widow and children of James R. Fox. Plaintiffs' decedent was killed when a pickup truck driven by George M. Burns (Defendant) and insured by Commercial Union Insurance Company (Commercial) was struck by a train. 1 Plaintiffs appeal from a summary judgment dismissing their action against Burns and Commercial. The issues on appeal are:

(1) Whether the trial court erred in granting summary judgment to Burns predicated on the exclusive remedy provisions of the Workmen's Compensation Act.

(2) Whether the trial court erred in granting summary judgment to Commercial predicated on plaintiffs' failure to state a cause of action against the tortfeasor.

FACTS

The undisputed facts are set forth in an affidavit by J. W. McDonald, which was filed into the record. That affidavit reads in part:

"... That he does business as J. W. MCDONALD CONTRACTOR out of Glenmora, Louisiana; that an or about August 10th, 1979 he was the employer of JAMES R. FOX and GEORGE BURNS: that the said JAMES R. FOX and GEORGE BURNS were working on a road construction project south of Lake Charles, Louisiana in Cameron Parish, Louisiana prior to and on August 10th, 1979; that the employment agreement between J. W. McDONALD d/b/a J.W. MCDONALD CONTRACTOR and JAMES R. FOX and GEORGE BURNS provided that J. W. MCDONALD d/b/a J. W. MCDONALD CONTRACTOR would provide transportation, including a vehicle and gasoline, to the job site in Cameron Parish, Louisiana and back to Glenmora, Louisiana; that on or about August 10th, 1979 at approximately 6:15 P.M. GEORGE BURNS and JAMES R. FOX were traveling in a pickup truck furnished by J. W. MCDONALD d/b/a J.W. MCDONALD CONTRACTOR for returning to Glenmora, Louisiana from the job site in Cameron Parish, Louisiana; that the said pickup truck and the gasoline being used were furnished to the said GEORGE BURNS and JAMES R. FOX by J.W. MCDONALD d/b/a J.W. MCDONALD CONTRACTOR as an incident to their employment contract for their transportation from the job site back to Glenmora, Louisiana; that on or about August 10th, 1979 at approximately 6:00 P.M. JAMES R. FOX and GEORGE BURNS were involved in a collision between the pickup truck they were in and a train..."

Plaintiffs instituted this action on October 31, 1979, alleging that the negligence of Burns and the negligence of the railroad employees operating the train were the proximate cause of the collision.

Burns and Commercial then filed motions for summary judgment. The trial court heard the motions and rendered judgment on April 25, 1980, sustaining the motions and dismissed the plaintiffs' action against these two defendants. Plaintiffs were granted a devolutive appeal.

SUMMARY JUDGMENT IN FAVOR OF BURNS

Plaintiffs first argue that a distinction must be made between the test used to determine if an employee is in the course and scope of his employment so as to create vicarious liability for his employer (under the doctrine of respondant superior) and the test used to determine if he is entitled to workmen's compensation benefits because he has suffered an accidental injury arising out of and in the course of his employment. We fail to see how this distinction is beneficial to plaintiffs' position in the action before us.

Here, plaintiffs are attempting to maintain a tort action against a co-employee of the decedent. They bring no action against the common employer nor do they bring an action for workmen's compensation benefits based on the accidental death of the decedent. The cases cited by plaintiffs 2 in which the above distinction is made, have no bearing on the issues before us.

Plaintiffs next argue that the immunity from civil liability provided by LSA-R.S 23:1032 3 to employees who negligently injure a co-employee is more restrictive than that granted to employers or principals who negligently injure their employees. Plaintiffs cite no jurisprudence in support of this contention and simply point to the last paragraph of LSA-R.S. 23:1032, supra, which reads:

"The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section." (Emphasis provided.)

Plaintiffs argue that Burns was "not engaged at the time of the injury in the normal course and scope of his employment" which, according to them, is more restrictive than simply acting in the course and scope of one's employment.

The problems which may arise if plaintiffs' argument is accepted were noted in 14 La. Civil Law Treatise: Workers' Compensation; Malone and Johnson, § 364, where the author stated:

"The section further provides that the immunity does not extend, however, to 'any officer, director, stockholder, partner or employee * * * who is not engaged at the time of the injury in the normal course and scope of his employment,' or to the liability of any partner in a partnership formed for the purpose of evading the Act. 74 It is not clear whether the use of the word 'normal' is intentional and is meant to convey some meaning other than that officers may not use this immunity as a shield in a tort suit involving a non-work-related injury. It remains at least theoretically possible to argue that an officer who goes outside of his 'normal' duties and negligently injures an employee might be liable in tort. Such an officer might well still be insured under the standard liability policy issued to an employer, which often insures an executive officer, director or stockholder 'while acting within the scope of his duties as such. * * * ' 75 The argument, of course, would be that his duties are broad, but his 'normal' duties, as to which he has immunity, might be more specific. One hopes that this rather tenuous argument, which would open another amorphous loophole, will not be accepted."

The same problems would arise in attempting to determine when an employee who injures a co-employee was engaged, at the time of the injury, in the performance of his "normal" employment duties.

We find that the last paragraph of LSA-R.S. 23:1032, supra, simply means that an employee will be granted immunity from civil liability when he negligently injuries a co-employee if, at the time of the injury, he was engaged in the course and scope of his employment. Braxton v. Georgia-Pacific Corporation, 379 So.2d 1150 (La.App. 2 Cir. 1980); Shepard v. Louisiana Power & Light Company, Inc., 369 So.2d 1196 (La.App. 2 Cir. 1979).

Plaintiffs' last argument is that an employee going to and from his place of employment in transportation furnished by his employer is not acting within the course and scope of his employment. We disagree.

The general rule is that an accident that befalls an employee while he is going to or returning from work does not occur in the course of his employment. However, 13 La. Civil Law Treatise: Workers' Compensation; Malone and Johnson, § 170 4 states the following rule with regard to accidents which happen in the same circumstances as those present in the case before us:

"An accident that happens while an employee is being transported to or from work by his employer is compensable under the Act if the transportation is furnished as an incident of the employment. 95 This is a widely recognized exception to the general rule, and it has given rise to considerable litigation in Louisiana. The rule applies whenever the employer has interested himself in the transportation to and from work as an incident to the employment agreement, and it is immaterial whether he provides a conveyance and driver, provides a vehicle for the employee's use, or merely pays the cost of fuel for the employee's own vehicle. 96"

See also Flynn v. Devore, 373 So.2d 580 (La.App. 3 Cir. 1979); Jagneaux v. Marquette Casualty Company, 135 So.2d 794 (La.App. 3 Cir. 1961).

It is clear that both plaintiffs' decedent and Burns would be considered as having been acting in the course and scope of their employment for purposes of LSA-R.S. 23:1031, 5 at the time the accident occurred and plaintiffs admit that this is so.

We find that Burns was engaged, at the time of the injury to plaintiffs' decedent, in the normal course and scope of his employment for purposes of LSA-R.S. 23:1032, supra, based on the undisputed facts giving rise to this action.

We note the case of Manuel v. Liberty Mutual Insurance Company, 236 So.2d 807 (La.1970), where the Supreme Court had occasion to apply an exclusion provision found in an insurance policy which is similar to the civil immunity provision of LSA-R.S. 23:1032, supra. That provision read:

"The insurance with respect to any person or organization other than the named insured does not apply:

" * * *

"(c) to any employee with respect to injury * * * of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer." (Italics ours)"

The facts in Manuel, supra, were similar to the facts in the case before us. There, two employees went to Lafayette, Louisiana, in a car furnished by their employer. They were returning to Opelousas, Louisiana, after having completed their mission for...

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