Thibodeaux v. GEICO Cas. Co.

• Decision Date: 13 June 2018
• Docket Number: 17–853
• Parties: Karen Sue THIBODEAUX v. GEICO CASUALTY COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

249 So.3d 114

Karen Sue THIBODEAUX

v.GEICO CASUALTY COMPANY, et al.

17–853

Court of Appeal of Louisiana, Third Circuit.

June 13, 2018

Gregory Carl Weiss, Weiss & Eason, L.L.P., Post Office Box 8597, Mandeville, Louisiana 70470, (985) 626–5358, Counsel for Defendant/Appellant: Walgreen Louisiana Company, Inc.

Ann Marie LeBlanc, Caraway LeBlanc, L.L.C., 3936 Bienville Street, New Orleans, Louisiana 70119, (504) 566–1912, Counsel for Defendant/Appellant: Walgreen Louisiana Company, Inc.

David L. Viviano, Jeffery J. Guidry, Law Office of Jamie Bankston, 4000 South Sherwood Forest, Suite 403, Baton Rouge, Louisiana 70816, (225) 368–1494, Counsel for Defendant/Appellee: Vivian Boutte

Blake R. David, Robert B. Brahan, Jr., Broussard & David, LLC, Post Office Box 3524, Lafayette, Louisiana 70502–3524, (337) 233–2323, Counsel for Plaintiff/Appellee: Karen Sue Thibodeaux

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

KEATY, Judge.

Defendant, Walgreen Louisiana Company, Inc, (Walgreens), appeals a judgment denying its motion for summary judgment and granting the plaintiff's cross-motion for partial summary judgment based upon its finding that Walgreens is vicariously liable for any injuries or damages sustained by plaintiff as a result of an automobile accident caused by a Walgreens employee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Karen Sue Thibodeaux, was involved in a May 2, 2014 automobile accident in Lafayette, Louisiana, when her vehicle was struck by another vehicle being driven by Vivian Boutte, who was at the time employed by Walgreens. The accident occurred as Ms. Boutte was headed back to her home in Napoleonville after attending a training course recommended by her boss. A police officer who responded to the scene issued a citation to Ms. Boutte for failure to yield. As a result of the injuries she sustained in the accident, Plaintiff filed suit against Ms. Boutte and her automotive liability insurer, GEICO Casualty Company. Plaintiff also named Walgreens as a defendant, alleging that Ms. Boutte was in the course and scope of her employment with Walgreens when the accident occurred, thus making it vicariously liable for the damages caused by Ms. Boutte's actions. Walgreens denied that Ms. Boutte was in the course and scope of her employment at the time of the accident and claimed it had no liability for Ms. Boutte's negligence.

Walgreens and Plaintiff filed cross-motions for summary judgment on the issue of Walgreen's vicarious liability for Ms. Boutte's actions. In her motion for partial summary judgment, Plaintiff also claimed that Ms. Boutte's negligence was the sole legal cause of the accident.

Following a hearing, the trial court rendered judgment on June 1, 2017, denying Walgreens' motion for summary judgment and granting Plaintiff's cross-motion for partial summary judgment based upon its findings: "(1) that Vivian Boutte was in the course and scope of her employment with Walgreens at the time of this May 2, 2014 incident; (2) that Walgreens is vicariously liable for any injuries or damages sustained by plaintiff caused by the incident; and (3) that Vivian Boutte was the sole legal cause of this incident." Walgreens appealed and is now before this court asserting the following assignments of error:¹

1. The trial judge erred in failing to apply the eight Orgeron^{[2 ]} factors which would have dictated a finding that Ms. Boutte was not in the course and scope of her employment with Walgreens at the time of the incident and resulted in the granting of Walgreens' Motion for Summary Judgment and the denial of Plaintiff's Cross–Motion.

2. The trial judge erred in applying a broad rather than strict construction of the term "course and scope of employment" which would have resulted in the granting of Walgreens' Motion for Summary Judgment, and the denial of Plaintiff's Cross–Motion.

3. Alternatively, the trial judge erred in not finding a genuine issue of material fact as to whether Ms. Boutte was in the course and scope of her employment resulting in the denial of both summary judgment motions.

Discussion

"The 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). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1). "Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate." Larson v. XYZ Ins. Co. , 16-745, p. 6 (La. 5/3/17), 226 So.3d 412, 416. Accordingly, we need not address Walgreens' assignments individually, but rather, we will discuss them as necessary in our discussion of whether either Plaintiff or Walgreens' met the burden of proving their entitlement to summary judgment.

Louisiana Civil Code Article 2320 provides, in pertinent part, that "Masters and employers are answerable for the damage occasioned by their servants ..., in the exercise of the functions in which they are employed."

In the application of Article 2320, an employer's vicarious liability for conduct not his own extends only to the employee's tortious conduct which is within the course and scope of employment.... Generally speaking, an employee's conduct is within the course and scope of his employment if the 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.

Orgeron , 639 So.2d at 226–27 (citations omitted).

"An employer is generally not liable for acts committed by its employee while the employee is going to or coming from work." Voinche v. Capps , 14-671, p. 5 (La.App. 3 Cir. 12/10/14), 155 So.3d 146, 151. In discussing that general rule, the supreme court noted that "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." Orgeron , 639 So.2d at 227. As this court noted in Voinche , however, application of that general rule "becomes more complicated" when an employer sends its employee to a different location than where that employee normally works. Voinche , 155 So.3d at 151. This court has observed:

As has been stated many times in the jurisprudence and by textbook writers, there is no precise rule or definition by which we can determine in every instance whether the employee driver of a motor vehicle is acting within the scope of his employment. Each case must be decided largely on its own facts, keeping in mind the basic idea that the use of the vehicle at the time must have been in the service of the employer or while about the employer's business.

Rollins v. New York Fire & Marine Underwriters, Inc. , 225 So.2d 663, 670 (La.App. 3 Cir. 1969), writ refused , 254 La. 855, 227 So.2d 595 (1969).

In its discussion of the course and scope issue in Orgeron , the supreme court reiterated its prior pronouncement that "[a]n employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer's business." Orgeron , 639 So.2d at 227 (citing LeBrane v. Lewis, 292 So.2d 216 (La.1974) ). Thereafter, the Orgeron court provided a non-exclusive list of eight factors courts should assess "in determining whether the employee's conduct is employment-rooted":

[T]he payment of wages by the employer, the employer's power of control, the employee's duty to perform the particular act, the time place and purpose of the act in relation to service of the employer, the relationship between the employee's act and the employer's business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act.

Id. Unlike the liberal construction courts are to give the phrase " ‘within the course and scope’ of [ ] employment duties" in workers' compensation cases, a strict interpretation of the phrase is called for where a tort victim seeks to have an employer held vicariously liable for the conduct of its employee. Senac v. State Farm Mut. Auto. Ins. Co. , 09-320, p. 4 (La.App. 3 Cir. 10/7/09), 22 So.3d 1124, 1127.

Ms. Boutte's deposition was the primary evidence entered both in support of and in opposition to the cross-motions for summary judgment.³ Ms. Boutte, a licensed pharmacist, stated that, on the date of the accident, she worked for Walgreens as a salaried employee in its Morgan City location. She explained that her pharmacy manager asked her to attend a training class on how to perform cholesterol testing, a service that Walgreens wanted to...