Norwel Equipment Co. Ltd. v. Hardy

• Decision Date: 06 December 2000
• Docket Number: No. 00-00934-CA.,00-00934-CA.
• Parties: NORWEL EQUIPMENT COMPANY LIMITED PARTNERSHIP v. Rob HARDY, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 905

773 So.2d 905

NORWEL EQUIPMENT COMPANY LIMITED PARTNERSHIP v. Rob HARDY, et al.

No. 00-00934-CA.

Court of Appeal of Louisiana, Third Circuit.

December 6, 2000.

Robert Lee Atkinson, Breazeale, Sachse & Wilson, Baton Rouge, LA, Counsel for Norwel Equipment Company Limited Partnership.

André J. Buisson, Woodley, Williams, Boudreau, Norman, Brown & Doyle, Lake Charles, LA, Counsel for Northside Planting & Turf Grass Farms.

Kenny L. Oliver, Rowe, Bares & Oliver, Lafayette, LA, Counsel for Southern Farm Bureau Cas. Ins. Co., LA. Farm Bureau Cas. Ins. Co.

(Court composed of ULYSSES G. THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges).

PETERS, Judge.

This litigation arose from an accident which occurred on April 11, 1997, wherein the boom of an excavator being transported on a tractor-trailer rig struck an overpass on Interstate Highway 10 in Calcasieu Parish, Louisiana, causing extensive damage to the excavator. Norwel Equipment Company Limited Partnership (Norwel), the owner of the excavator, brought suit against Rob Hardy (Hardy);¹ Northside Planting, L.L.C. (Northside); and Turf Grass Farms, Inc. (Turf Grass) to recover the damages to the equipment. The trial courted granted a summary judgment dismissing Northside and Turf Grass from the litigation, and Norwel has appealed, but only as to the portion of the judgment dismissing Turf Grass. For the following reasons, we reverse.

In its petition, Norwel asserted that the damages to the excavator occurred because of the negligence of Kenneth L. Simien (Simien), the driver of the tractor-trailer rig. Norwel further asserted that Northside and Turf Grass employed Simien at the time of the accident. It is this asserted employment relationship under which Norwel claims liability on the part of Northside and Turf Grass. In its answer to Norwel's petition, Turf Grass admitted that "Simien was its employee and was acting solely in that capacity" at the time of the accident. Northside asserted in its answer that Simien was an agent of Turf Grass and was at no time its employee.

The evidence presented at the hearing on the motion for summary judgment consisted of only an equipment and rental agreement between Hardy and Norwel and Simien's deposition. The rental agreement, dated April 10, 1997, provided for the rental to Hardy of the damaged excavator² and provided that the equipment was to be "Ship[ed] Via Kirk Walker.

Simien testified in his deposition that he is a self-employed trucking contractor who was merely doing a favor for Kirk Walker (Walker) on the day of the accident. According to Simien, Walker contacted him on April 10, 1997, and told him that "he had an escalator [sic] to move as a favor for someone that was going to do some work for him." At Walker's request, Simien agreed to transport the excavator. Walker made arrangements with Northside to borrow a tractor-trailer rig for that purpose. On the morning of April 11, Walker and Simien drove to Northside's facility near Kinder, Louisiana, obtained the rig, and returned to Walker's farm near Welsh. Simien then inspected the unit before traveling to Norwel's Lake Charles, Louisiana facility to obtain the excavator.

In Lake Charles, Simien loaded the excavator and began the return trip to Welsh. As Simien attempted to go under the first overpass he encountered after entering Interstate Highway 10, the boom of the excavator struck the overpass, causing extensive damage. Based on the limited record before it, the trial court concluded that Simien was not the employee of either Turf Grass or Northside. In its appeal, Norwel does not contest the trial court's judgment in favor of Northside but contends that the trial court erred in dismissing Turf Grass from the litigation. In doing so, Norwel asserts two assignments of error: (1) the trial court erred in failing to recognize Turf Grass' acknowledgment in its answer that Simien was its employee and (2) the trial court failed to apply the proper legal standard for a motion for summary judgment. We consider these assignments together.

OPINION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether or not summary judgment is appropriate in any given case. Cormier v. Albear, 99-1206 (La.App. 3 Cir. 2/2/00); 758 So.2d 250. In Babin v. Winn-Dixie Louisiana, Inc., 00-0078, pp. 3-4 (La.6/30/00); 764 So.2d 37, 39-40, the Louisiana Supreme Court recently addressed the conditions under which a summary judgment should be granted.

A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La.Code Civ. P. art. 966(B). This article was amended in 1996 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends." La.Code Civ. P. art. 966(A)(2). In 1997, the legislature enacted La.Code Civ. P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party...