Sparks v. Progressive American Ins. Co.

• Decision Date: 07 October 1987
• Docket Number: No. 86-849,86-849
• Parties: Daniel M. SPARKS, Plaintiff-Appellant, v. PROGRESSIVE AMERICAN INSURANCE CO., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1036

517 So.2d 1036

Daniel M. SPARKS, Plaintiff-Appellant, v. PROGRESSIVE AMERICAN INSURANCE CO., et al., Defendants-Appellees.

No. 86-849.

Court of Appeal of Louisiana, Third Circuit.

Oct. 7, 1987.

Writ Denied Dec. 18, 1987.

Watson, Murchison, Crews, Arthur & Corkern, Steven D. Crews, Natchitoches, for plaintiff-appellant.

Allen, Gooch, Bourgeois, Breaux & Robison, P.C., Sera H. Russell III, Babin & Babin, Stanley P. Babin, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Chris G. Robbins, Marx & Marx, G. Paul Marx, Lafayette, for defendants-appellees.

Before FORET, LABORDE and KNOLL, JJ.

KNOLL, Judge.

Daniel M. Sparks (hereafter Sparks) appeals the judgment of the trial court which dismissed Dallas Charles Broussard (hereafter Broussard) and Elk's Concrete Products, Inc. (hereafter Elk's) from his damage claim for injuries which resulted from a rear end collision. Sparks sued D. Charles Broussard Trucking Company, Inc. (hereafter Broussard Trucking), its insurer, Progressive American Insurance Company (hereafter Progressive), Broussard, Ulysses Hebert (hereafter Hebert), the driver of the tandem truck, and Elk's. The trial court determined Broussard Trucking was the lessee of the tandem truck and, as Hebert's employer, was responsible in damages for the rear end collision. Therefore, Broussard Trucking and its insurer were cast in judgment and ordered to pay Sparks medical expenses of $17,226.16, general damages of $150,000 and property damages of $2,294.30. Progressive's liability was limited to its $100,000 policy limits for bodily injury. Sparks appeals, contending the trial court erred in finding: 1) Elk's was not legally responsible for the negligent action of Ulysses Hebert; and 2) Dallas Charles Broussard, individually, was not legally liable for the negligent actions of Ulysses Hebert. We affirm.

FACTS

Elk's manufactures various building materials, principally concrete blocks, at its Lafayette plant. Broussard is Elk's production manager. One of the chief components of the products made by Elk's is aggregate, which is simply expanded clay. For many years Big River Industries, Inc., the only nearby supplier, shipped aggregate to Elk's either by rail or truck. In January 1982 Broussard suggested to Elk's that it would be mutually advantageous to allow him to purchase a truck and haul the aggregate to the Elk's plant. On approximately February 1, 1982, he purchased a truck and began hauling aggregate from Big River to Elk's. Thereafter Broussard hired Hebert to haul the aggregate, and the record indicates he started driving the truck on February 11, 1982. On February 15, 1982, the Louisiana Secretary of State issued a certificate of incorporation for D. Charles Broussard Trucking Company, Inc. effective retroactively to February 12, 1982, the date of filing. The accident in the case sub judice occurred on February 17, 1982, when Hebert, driving Broussard's truck which was leased to Broussard Trucking, rear ended Spark's 1980 Cadillac on Interstate 10.

ELK'S LIABILITY

The trial court concluded Elk's was not the employer of Hebert and, therefore, was not legally responsible for Hebert's negligent actions. Sparks contends that there was a master-servant, employer-employee relationship between Elk's and Hebert, and relies on Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir.1975), as support for his position.

An employer is responsible for the torts of employees committed during the course and scope of employment. LSA-C.C. Art. 2320. However, Article 2320 is applicable only if a plaintiff first proves the existence of an employer-employee relationship. Sampay v. Morton Salt Co., 482 So.2d 752 (La.App. 1st Cir.1985), writ granted, 488 So.2d 684, writ dismissed, 496 So.2d 315 (La.1986). Our jurisprudence holds that in determining whether such a relationship exists the most important factor is the right of the alleged employer to control the work of the individual. Roberts v. State, Through Louisiana Health & Human Resources Administration, 404 So.2d 1221 (La.1981). Factors to assess the right to control include: 1) the selection and engagement of the worker; 2) the payment of wages; and 3) the power of control and dismissal. Savoie v. Fireman's Fund Ins. Co., 347 So.2d 188 (La.1977). Nevertheless, the jurisprudence is well settled that whether the employer actually exercises control or supervision over the worker is not as significant as whether, from the nature of the relationship, the employer had the right to do so. Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483 (1955).

In support of his position that Elk's was vicariously liable, Sparks asserts: 1) Broussard Trucking hauled exclusively to Elk's plant and, if there would be other customers for the trucking company, Elk's would be the first one serviced; 2) Elk's fuel was used in Broussard Trucking's vehicle; 3) Broussard was an employee of Elk's and determined when Broussard Trucking was used; and 4) Elk's benefited from the hauling of aggregate.

In Ogaard, the case relied upon by Sparks, a tandem truck driven by Wiley struck the rear of a pickup truck, killing twelve persons. Wiley was clearly negligent. At the time of the accident Wiley, an employee of T. Robert, was driving a truck belonging to T. Robert, and the trial court found Wiley was in fact also employed by Alexander Mill & Grain Elevator, Inc .

In addressing the issue of whether Wiley was employed by Alexander Mill, the appellate court stated:

"We find Wiley to have been a Mill employee for these reasons. The owner of the tandem truck, T. Robert, was the son of the managing director of the Mill who was also one of the key managers of Saline. T. Robert's father informed the Mill manager, Mr. Haynes, that T. Robert was to be used for all hauling that could be handled by one truck. When more trucks were needed, T. Robert's truck was to be the first one called. This was rigidly followed for more than a year. Wiley would bring all records of his hauling to the Mill, and the Mill maintained the only records of Wiley's hauling. Each month the Mill calculated (from records turned in by Wiley), the amount due to Robert and would send a check to T. Robert. T. Robert would, in turn, make out his check for 20% of that amount as Wiley's pay. Although the Mill did not withhold income tax and social security, neither did Robert.

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The Mill called Wiley to report for hauling, told him when to load, how much, and where to go. On occasion, the Mill directed Wiley to pick up grain in Saline's fields and deliver it to the Mill. The only hauls made by Wiley for parties other than the Mill were those arranged by the Mill. The hauling agreement was terminable without notice. Advances were made by the Mill to Wiley, and later withheld from the Mill's payment to T. Robert. These...