Kelly v. Boise Building Solutions

• Decision Date: 02 May 2012
• Docket Number: No. 11–1116.,11–1116.
• Parties: Kenneth Dale KELLY, et ux. v. BOISE BUILDING SOLUTIONS, et al.
• Court: Court of Appeal of Louisiana — District of US

92 So.3d 965

Kenneth Dale KELLY, et ux.

v.BOISE BUILDING SOLUTIONS, et al.

No. 11–1116.

Court of Appeal of Louisiana, Third Circuit.

May 2, 2012.

Jerold Edward Knoll, Jr., Attorney at Law, Marksville, LA, Amos H. Davis, Attorney at Law, Baton Rouge, LA, for Plaintiffs/Appellees, Kenneth Dale Kelly, Jackie Denise Kelly.

W. Michael Adams, Scott R. Wolf, Blanchard, Walker, O'Quinn & Roberts, Shreveport, LA, Keith M. Pyburn, Larry Sorohan, Fisher & Phillips LLP, New Orleans, LA, for Defendants/Appellants, Boise Cascade, L.L.C., Old Republic Insurance Company.

John A. Brittain, Attorney at Law, Natchitoches, LA, for Defendant/Appellant, Dwayne Myers.

Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.

KEATY, Judge.

[3 Cir. 1]This appeal stems from an incident between co-workers at their place of employment in which one of the workers was severely injured. For the following reasons, we hold that the trial court did not err in granting a motion for directed verdict in favor of the injured employee based on its finding that his co-worker committed an intentional tort upon him while in the course and scope of their employment. We further find that the trial court did not err in refusing to grant the defendants' request that they be given an offset against the amount they owe pursuant to the judgment for any future workers' compensation payments that they may pay to the injured employee. Thus, we affirm.

FACTS AND PROCEDURAL HISTORY

Kenneth Dale Kelly was a forklift operator employed by Boise Cascade, L.L.C. (Boise) at its engineered wood products facility in Lena, Louisiana. On August 28, 2007, Kelly was sitting at a desk in the Boise shipping office with his feet propped up on a drawer when his co-worker, Dwayne Myers, moved toward him and, despite his protestations, put his hands on Kelly. Thereafter, the chair toppled over and Kelly fell to the floor injuring his back, which had previously been operated on in 2000 and 2002. As a result of his injuries, Kelly ¹ filed suit against Myers and Boise.²

The matter proceeded to a five-day jury trial on December 13, 2010. After plaintiffs rested their case, the defendants moved for a directed verdict, contending that plaintiffs failed to prove by a preponderance of the evidence that Myers' actions amounted to an intentional act or that Myers' actions occurred during the [3 Cir. 2]course and scope of his employment with Boise. The trial court denied the defendants' motion on the basis that reasonable minds could differ regarding whether Myers acted intentionally and whether Boise should be held vicariously liable for Myers' actions. The defendants then presented their defense to Kelly's claims, after which they rested their case and re-urged their motion for directed verdict. The trial court denied the defendants motion for the same reasons that it had rejected their original motion.

Thereafter, plaintiffs moved for a directed verdict arguing that reasonable minds could not reach any conclusion other than that plaintiffs had proven that: 1) Myers committed the intentional tort of battery upon Kelly; 2) the battery occurred within the course and scope of Myers' employment with Boise; 3) Kelly was not guilty of comparative fault for having caused or contributed to the accident, and 4) Kelly was injured as a result of Myer's conduct. The trial court granted plaintiffs' motion as regarding the first two issues and the remaining issues were submitted to the jury.

The jury determined that Kelly was injured in the August 28, 2007 accident and that Kelly was at fault in causing his own injuries. Fault was apportioned 30% to Kelly and 70% to Myers. The jury assessed Kelly's total damages at $944,940.00 and his wife's loss of consortium damages at $50,000.00. In a written judgment dated March 1, 2011, judgment was rendered in favor of plaintiffs and against Myers, Boise, and Old Republic, in solido, for the amounts awarded by the jury, plus interest and costs.³

Plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) seeking an increase in their awards for general and special damages, especially in [3 Cir. 3]those categories where no damages were awarded, such as for past medical expenses, past lost wages, past and future mental anguish, loss of enjoyment of life, and physical disability. The defendants opposed the motion, contending that the jury's verdict should stand given the conflicting evidence adduced at trial and the great discretion afforded to a jury when assessing damages. Alternatively, the defendants submitted that if the trial court were to grant plaintiffs' motion and award plaintiffs any amounts for past medical expenses or past lost wages, then the defendants would be entitled to a credit based on the amounts that Boise had previously paid to or on behalf of Kelly for medical and indemnity benefits. After a hearing, the trial court granted the motion in part, amending the jury's award of zero for past medical expenses and past lost wages to $62,017.30 and $129,667.07 respectively, and granting Boise a credit against those awards for the workers' compensation medical and indemnity benefits it paid to Kelly through the date of the verdict; plaintiffs' JNOV was denied in all other respects. The effect was to award Kelly an additional $48,748.50 in past lost wages, raising the judgment in plaintiffs' favor to $993,688.50.

Boise, Old Republic, and Myers now appeal,⁴ asserting that: 1) the trial court erred in directing a verdict that an alleged intentional battery committed by Myers could be deemed in the course and scope of his employment with Boise for purposes of respondeat superior; 2) the trial court erred by making the first LeBrane⁵ factor dispositive of whether Boise could be liable for Myers' battery upon Kelly; 3) the trial court erred in directing a verdict that a battery occurred; 4) the trial court erred in directing a verdict that Myers' actions were intentional acts [3 Cir. 4]for purposes of evaluating workers' compensation exclusivity; 5) the trial court erred in failing to direct a verdict in Boise's favor; and 6) the trial court erred in failing to grant Boise an offset for future workers' compensation benefits against the tort judgment awarding Kelly damages for future medical expenses and future lost wages.

DISCUSSION

Plaintiffs' Answer to Appeal

Boise's motion for suspensive appeal was filed and granted on May 19, 2011. Boise filed its appeal bond on May 26, 2011. Plaintiffs filed an answer to appeal in the trial court on June 2, 2011. The record was lodged in this court on September 12, 2011. Boise filed its appellant brief in this court on October 14, 2011. Plaintiffs filed a pleading entitled in part, “Original Brief of Appellees Kenneth Dale Kelly and Jackie Denise Kelly in Answer to Appeal Filed by Boise” in this court on November 14, 2011. In response, Boise filed a motion to strike plaintiffs' answer to appeal. Thereafter, plaintiffs filed a memorandum in opposition to Boise's motion to strike, along with a motion to supplement the record with the answer to appeal that they had previously filed in the trial court. Boise opposed plaintiffs' motion to supplement. We referred both motions to the merits.

In its motion to strike, Boise relies on this court's holding in Smoot v. Hernandez, 08–1121 (La.App. 3 Cir. 3/4/09), 6 So.3d 352, a matter containing facts remarkably similar to those presented in this matter. In Smoot, we wrote:

The record reflects that the trial court granted Mr. Hernandez's appeal on July 16, 2008, and the suspensive appeal bond was filed contemporaneously therewith. At that time, in accordance with La.Code Civ.P. art. 2088, the trial court became divested of jurisdiction over all matters on appeal. An Answer to Appeal was subsequently filed by Ms. Smoot in the trial court, i.e., the Twelfth Judicial District Court, on September 16, 2008. Although this filing [3 Cir. 5]was within fifteen days of the lodging of the record, the trial court no longer had jurisdiction. Thus, the Answer to Appeal filed on behalf of Ms. Smoot in the Twelfth Judicial District Court, although timely, was improvidently filed in the wrong tribunal. Therefore, the Answer to Appeal filed by Ms. Smoot in the trial court is not properly before this court.

Additionally, the Answer to Appeal and Opposition to Original Brief which was filed with this court on October 23, 2008 is deficient for two other reasons. First, as previously stated by this court, “[a] brief submitted by the appellee does not satisfy the requirement of [La.Code Civ.P. art. 2133.] (citation omitted).” Broussard v. Leger, 624 So.2d 1304, 1307 (La.App. 3 Cir.1993), writ denied,93–2762 (La.1/7/94), 631 So.2d 452 (quoting Sears, Roebuck & Co. v. Appel, 598 So.2d 582, 584 (La.App. 4 Cir.1992)). Although Ms. Smoot's Answer to Appeal and Opposition to Original Brief states that Ms. Smoot was entitled to a modification of the general damage award, it was erroneously set forth in the brief and not a pleading. As such, it is insufficient to satisfy the requirements of an answer to appeal. Secondly, the Answer to Appeal and Opposition to Original Brief is deficient for its failure to satisfy the time requirements of La.Code Civ.P. art. 2133. This court has previously held that it will not consider an answer to appeal that is filed more than fifteen days after the return date or date of lodging, whichever is later. Martin v. G. & A Limited, I, 604 So.2d 1014 (La.App. 3 Cir.), writs denied,607 So.2d 557 (La.1992). For the foregoing reasons, we find that Ms. Smoot's answer to appeal seeking a modification of the general damages awarded by the trial court pursuant to the JNOV is not properly before this court and will not be considered.

Id. at 361–62. (Footnote omitted.)

We find no meaningful distinction between the instant matter and Smoot, we conclude that plaintiffs' answer to appeal was not timely filed, and we will not consider...