Wainwright v. Moreno's, Inc.

• Decision Date: 20 May 1992
• Docket Number: No. 90-1271,90-1271
• Citation: 602 So.2d 734
• Parties: Robert N. WAINWRIGHT, Plaintiff-Appellee, v. MORENO'S, INC. and Transportation Insurance Company, Defendants-Appellants. 602 So.2d 734
• Court: Court of Appeal of Louisiana — District of US

Page 734

602 So.2d 734

Robert N. WAINWRIGHT, Plaintiff-Appellee, v. MORENO'S, INC. and Transportation Insurance Company Defendants-Appellants.

No. 90-1271.

602 So.2d 734

Court of Appeal of Louisiana Third Circuit.

May 20, 1992.

Broussard, Bolton, Halcomb & Vizzier, Roy S. Halcomb, Jr., Alexandria, for plaintiff/appellee.

Provosty, Sadler & deLaunay, Wm. H. deLaunay, Alexandria, for defendant/appellant Transp. Ins. Co.

Jones, Tete, Nolen, Hanchey, Swift & Spears, Edward J. Fonti, Lake Charles, for defendant/appellant Moreno's.

Robert L. Kennedy, Colfax, for defendant/appellant Clerk's Office.

Before YELVERTON and KNOLL, JJ., and MARCANTEL, ^* J. Pro Tem.

BERNARD N. MARCANTEL, Judge Pro Tem.

The issues presented by this appeal concern the intentional tort exception to the worker's compensation law; orders for a jury trial; coverage under insurance policies; expert testimony; amendment of the pleadings; court costs; per-page costs of the appeal; attorney's fees awarded to the Clerk of Court; and interest on the judgment.

On July 21, 1987, Robert N. Wainwright (hereinafter plaintiff) filed a petition for worker's compensation benefits against his employer, Moreno's, Inc. (hereinafter Moreno's), and Transportation Insurance Company (hereinafter TICO). Plaintiff later amended his petition to name Jerry Broussard (hereinafter Broussard) as an additional defendant and to allege an intentional act on the part of defendants. Moreno's and Broussard answered and denied the allegations, and filed a third party petition against TICO and Continental Casualty Company (hereinafter Continental). TICO, Moreno's, Broussard and plaintiff filed motions for summary judgment. Moreno's and Broussard also filed a cross motion for summary judgment against TICO. The trial court denied defendants' motions for summary judgment and granted plaintiff's motion for summary judgment finding that there was coverage under the insurance policy issued by TICO for both Moreno's and Broussard. A trial was held on October 17 and 18, 1989, on the issues of the intentional tort claim and coverage under TICO's and Continental's insurance policies. The trial judge found in favor of plaintiff and against defendants, Moreno's, Broussard, TICO and Continental. Defendants appeal. We affirm.

FACTS

Plaintiff's employer, Moreno's, subcontracted with Westerchil Construction (hereinafter Westerchil), a general contractor, to install chill water piping on a job in which Westerchil had contracted to construct a new 120 bed nursing home unit at the Veteran's Administration Hospital in Alexandria, Louisiana. On November 19, 1986, plaintiff was working at this jobsite in a ditch that was approximately ten feet deep and four to six feet wide, when the ditch caved in on him and a co-worker, Kenneth Gray (hereinafter Gray). As a result of this accident, plaintiff sustained serious injuries to his left leg.

Plaintiff filed a petition for worker's compensation benefits against Moreno's and TICO, the insurer of Moreno's. Plaintiff later amended his petition to add an additional defendant, Broussard, a foreman for Moreno's, and to allege that Broussard and Moreno's were guilty of an intentional tort because Broussard ordered plaintiff to remain in the ditch and to continue working when Broussard had been warned that the ditch was likely to cave in. Moreno's and Broussard answered the petition and denied the allegations and filed a third-party petition against TICO, Moreno's insurer, and Continental, Moreno's umbrella policy insurer. TICO and Continental answered the third-party petition claiming that there was no coverage under the insurance policies for this accident.

TICO, Moreno's, Broussard and plaintiff filed motions for summary judgment. Moreno's and Broussard also filed a cross motion for summary judgment against TICO. The trial court denied defendants' motions for summary judgment and granted plaintiff's motion for summary judgment finding that there was coverage under the insurance policy issued by TICO for both Moreno's and Broussard.

A trial was held November 17 and 18, 1989 on the issues of the intentional tort claim and coverage under TICO's and Continental's insurance policies. The trial judge found in favor of plaintiff and against defendants, Moreno's, Broussard, TICO and Continental. Defendants appeal. Defendants, TICO and Continental, assign the following errors:

(1) The trial court erred in finding Moreno's or Broussard liable under the intentional tort exception to the worker's compensation law; and, if not,

(2) The trial court erred in vacating the previous orders for a jury trial;

(3) The trial court erred in finding Moreno's and Broussard are entitled to coverage and attorney's fees and costs under any policy issued by TICO and Continental;

(4) The trial court erred in admitting expert testimony;

(5) The trial court erred in refusing to allow an amendment of the pleadings;

(6) The trial court erred in awarding costs;

(7) The trial court erred in not reducing the per-page costs of the appeal and in awarding attorney's fees to the clerk of court; and (8) The trial court erred in setting the time from which interest on the judgment should run.

Defendants, Moreno's and Broussard, adopt the assignments of error alleged by TICO and Continental, except for those assignments of error dealing with coverage under the insurance policies, since they agree with the trial court's decision in finding that there was coverage under the insurance policies issued by TICO and Continental; the vacating of the jury trial by the trial judge, since they did not request a jury trial; and, the amendment of the pleadings.

INTENTIONAL TORT

Defendants claim that the trial court erred as a matter of law in finding the actions of both Moreno's and Broussard constituted intentional acts within the meaning of La.R.S. 23:1032, entitling plaintiff to bring an action in tort against his employer.

The Louisiana Supreme Court, in the case of Bazley v. Tortorich, 397 So.2d 475, at page 482 (La.1981), discussed the meaning of the term "intentional tort," as it was applied in La.R.S. 23:1032:

"For these reasons, we construe the legislation under review as providing that the exclusive remedy rule shall be inapplicable to intentional torts or offenses. The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Waldrop v. Vistron Corp., 391 So.2d 1274 (La.App.1980); McGuire v. Honeycutt, 387 So.2d 674 (La.App. 3d Cir.1980); Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App. 2d Cir.1980); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1st Cir.) writ denied 386 So.2d 359 (La.1980); Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App. 1st Cir.1979), cert. denied 382 So.2d 164 (1980); Frazier v. Woodward, 378 So.2d 209 (La.App. 4th Cir.1979); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir.1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir.1979); Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App. 1st Cir.), writ denied, 362 So.2d 578 (La.1978). Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, Sec. 8A, Comment; Prosser, supra, Sec. 8."

In his written reasons for judgment, the trial judge stated "... this court concludes that Moreno's, Inc., knew that the injuries to the plaintiff were substantially certain to result from their actions." The trial judge continued and discussed the facts upon which he based his finding that Moreno's knew that the injuries to plaintiff were substantially certain to result from its action.

In Rosell v. ESCO, 549 So.2d 840, at page 844 (La.1989), writ den., 561 So.2d 105 (La.1990), the Louisiana Supreme Court has enunciated the following general principles that govern an appellate court's power to reverse a trial court's factual finding:

"It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of 'manifest error' or unless it is 'clearly wrong,' and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable."

After a review of the record in this case in its entirety, we conclude that the trial court was not clearly wrong in its finding that Broussard knew when he ordered plaintiff back into the ditch that the ditch was substantially certain to cave in on plaintiff.

Testimony showed that a cave-in had occurred on the day before the accident and, as a result of this cave-in, Tony Leblanc (hereinafter Leblanc), a superintendent for Moreno's, had held a safety meeting the next day, which was the morning of plaintiff's accident. At this meeting Leblanc told the men not to get into a ditch unless they could see out of it.

The Occupational Safety and Health Act requires that the sides of a ditch in unstable or soft material, which sides are more than five feet in depth, shall be shored, sheeted, braced, sloped, or otherwise supported. The ditch which caved in was about ten feet deep at the time of the accident.

Although the contract Moreno's had with Westerchil did not include shoring, there was an understanding that, if shoring became necessary, Moreno's could amend its proposal to include shoring.

Jimmy Schiller (hereinafter Schiller), the...