Senac v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 07 October 2009
• Docket Number: No. 09-320.,09-320.
• Citation: 22 So.3d 1124
• Parties: Claudia Annette SENAC v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

22 So.3d 1124

Claudia Annette SENAC v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.

No. 09-320.

Court of Appeal of Louisiana, Third Circuit.

October 7, 2009.

Rehearing Denied December 9, 2009.

Matthew D. McConnell, Elmore & McConnell, Lafayette, LA, for Plaintiff/Appellant, Claudia Annette Senac.

Kenny L. Oliver, David O. Way, Oliver & Way, Lafayette, LA, for Defendants/Appellees, Roclan Service & Supply, LLC Roclan Services, Inc.

Gretchen Heider Mayard, Katherine Paine Martin, Attorneys at Law, Lafayette, LA, for Defendants/Appellees, State Farm Mutual Automobile Insurance Company Philip R. Smith.

Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.

SULLIVAN, Judge.

Plaintiff appeals the dismissal of her tort claim against defendant-driver's employer. We affirm.

Facts

On December 12, 2005, Philip Smith was involved in an automobile accident with vehicles driven by Gloria Conques and Claudia Senac. Ms. Senac sued Ms. Conques, Mr. Smith, and Mr. Smith's employer, Roclan Services (Roclan), to recover damages she suffered as a result of the accident. Ms. Senac settled her claims against Ms. Conques, her insurer, Mr. Smith, and his insurer and dismissed them from this litigation. Thereafter, Roclan filed a motion for summary judgment, asserting that it is not vicariously liable for Mr. Smith's actions because he was not in the course and scope of his employment when the accident occurred.

Roclan relied on the deposition testimony of Mr. Smith and his supervisor, Kim Cormier, as support for its motion for summary judgment; that testimony establishes the following. Mr. Smith was employed by Roclan as a rigger on an offshore construction crew and had finished a hitch offshore shortly before the accident occurred. He and the crew with which he worked that hitch had been transported by Roclan from offshore to its office in Duson. Mr. Smith and other members of the crew had parked their vehicles at Roclan's office while they were offshore. Mr. Smith testified that before he left Roclan's office, Mr Cormier asked him for a ride to his home in Sunset and that he agreed to drive him. After leaving Roclan's office in Duson, Mr. Smith drove to a Burger King in Lafayette. The accident occurred just after he drove out of the Burger King parking lot. After the police completed their investigation of the accident, Mr. Smith drove Mr. Cormier home.

Mr. Smith also testified that he and the rest of the crew had completed their hitch when the accident occurred and that he was not on an errand for anyone. Additionally, he testified that he always worked on a different crew; he never used his truck for errands for Roclan; he did not receive reimbursement from Roclan for mileage or money for fuel, insurance, or maintenance on his vehicle; and he was not provided a cell phone, beeper, or pager by Roclan.

Mr. Cormier testified that he was an offshore supervisor for Roclan at the time of the accident and that he was authorized to "run off" employees from a job he was supervising, but he was not authorized to fire such employees. With regard to the day of the accident, he testified that after he returned to Roclan's office he was unable to contact his wife to have her pick him up, that Mr. Smith offered to drive him home, and that he accepted the offer. He later admitted, however, that he was not certain if he asked Mr. Smith for a ride or if Mr. Smith offered him a ride.

Mr. Cormier was asked whether he and Mr. Smith were being compensated on their way home. He testified that Roclan crew members are guaranteed twelve hours pay for each day of their hitch, which includes all days they are on the water. He explained that they are paid twelve hours pay for each day they are on the water, whether they actually work or not, and that they are also paid twelve hours the day after the last day they work, if they reach the dock on their return trip inland after midnight. They are not paid twelve hours pay for the day after the last day of their hitch, however, if they reach the dock before midnight. Mr. Cormier also testified that the crew had completed their hitch and their work was over; that at the time of the accident, he was not doing anything which benefited Roclan and was not in a supervisory capacity over Mr. Smith; and that Mr. Smith's giving him a ride home had nothing to do with his work performance. Mr. Cormier explained, as did Mr. Smith, that he did not receive reimbursement from Roclan for mileage or meals, and that Roclan did not provide him with a cell phone, beeper, or pager.

After a hearing, the trial court granted summary judgment in favor of Roclan. Ms. Senac appeals.

Motion for Summary Judgment

Appellate courts review motions for summary judgments de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). 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).

The initial burden of proof is on the mover to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the issue that is presented by the motion for summary judgment, he is not required "to negate all essential elements" of his opponent's claim but need only point out that there is "an absence of factual support for one or more elements essential" to his opponent's action. Id. If the opponent "fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact." Id.

Discussion

An employer has vicarious liability for his employee's tortious conduct if that conduct occurred "in the exercise of the functions in which [he is] employed." La.Civ. Code art. 2320. In applying Article 2320, courts consider whether the employee's tortious conduct was "within the course and scope" of his employment duties. Orgeron v. McDonald, 93-1353, p. 4 (La.7/5/94), 639 So.2d 224, 226. Contrary to workmen's compensation cases, courts strictly construe this phrase in cases involving damage claims for personal injuries. White v. Canonge, 01-1227 (La.App. 5 Cir. 3/26/02), 811 So.2d 1286. See also, Seay v. Wilson, 569 So.2d 227 (La.App. 1 Cir.1990), writ denied sub nom. Johnson v. Newman, 572 So.2d 70 (La.1991); Arledge v. Royal-Globe Ins. Co., 401 So.2d 615 (La.App. 3 Cir.1981); Lowe v. Gentilly Dodge, Inc., 342 So.2d 1231 (La.App. 4 Cir.1977).

As a general rule, if an employee's conduct is "of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer," it is considered to be within the course and scope of his employment. Orgeron, 639 So.2d at 226-27 (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 70 (5^th ed.1985)). Employees traveling to and from work are usually not in the course and scope of employment:

Because an employee usually does not begin work until he reaches his employer's premises, his going to and coming from work is generally considered outside the course of his employment unless he has a duty to perform en route. Moreover, an employee's place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination.

Id. at 227.

In Orgeron, the supreme court reiterated several factors it had previously identified in Reed v. House of Decor, Inc., 468 So.2d 1159 (La.1985), which must be considered when determining whether a tort was committed within the course and scope of an employee's employment. These factors include: 1) the payment of wages; 2) the employer's power of control; 3) the employee's duty to perform the particular act; 4) the time, place, and purpose of the act in relation to service; 5) the relationship between the employee's act and the employer's business; 6) the benefits received by the employer from the act; 7) the motivation of the...