White v. Frenkel

• Court: Court of Appeal of Louisiana
• Writing for the Court: Before DOMENGEAUX; SAUNDERS
• Citation: White v. Frenkel, 615 So.2d 535 (La. App. 1993)
• Decision Date: 03 March 1993
• Docket Number: No. 92-241,92-241
• Parties: Melinda S. WHITE, Plaintiff-Appellee, v. John E. FRENKEL, III, and Mid-South Sports, Inc., Defendants-Appellants.

Page 535

615 So.2d 535

Melinda S. WHITE, Plaintiff-Appellee, v. John E. FRENKEL, III, and Mid-South Sports, Inc. Defendants-Appellants.

No. 92-241.

Court of Appeal of Louisiana Third Circuit.

March 3, 1993.

J.J. McKernan, Thomas Lewis Walker, Baton Rouge, for Melinda S. White.

Steven D. Crews, Natchitoches, David A. Hughes, Alexandria, for John E. Frenkel, III, et al.

Alexander Negus Breckinridge IV, New Orleans, Charles Gordon Tutt, Shreveport, for Mid-South & Hartford.

Before DOMENGEAUX, C.J., and KNOLL and SAUNDERS, JJ.

SAUNDERS, Judge.

This appeal is brought on behalf of defendants-appellants, Mid-South Sports, Inc. (hereinafter "Mid-South"), and the Hartford Accident and Indemnity Company (hereinafter "Hartford"), Mid-South's comprehensive general liability insurer, following contradictory verdicts in two consolidated cases, one of which was tried to a jury and the other to a judge.

On November 24, 1986, a vehicle owned by plaintiff-appellee, Melinda White, and operated by defendant-appellant, John E. Frenkel, III, (hereinafter "Frenkel"), was proceeding northbound on La. Highway 1, just south of Natchitoches, when it attempted to pass two tractor trailers. In doing so, the White vehicle collided with a southbound vehicle operated by Jason Rachal. Mr. Rachal was killed and Melinda White and John Frenkel sustained injuries.

Two lawsuits were filed following this accident. Melinda White brought an action against Frenkel and Mid-South on the theory that Frenkel was a Mid-South employee who was in the course and scope of his employment at the time of the accident. This suit was consolidated with the action which Mrs. Rachal brought on her own behalf, on behalf of her husband's estate, and on behalf of her minor children, plaintiffs and appellees. The Rachal action against Frenkel and Mid-South alleged the same respondeat superior liability theory and also named Mid-South's general liability insurer, Hartford, as a defendant.

The White case was tried to the trial judge, while the Rachal case was tried to a jury. The jury returned a verdict in which it found that Frenkel was not a Mid-South employee and was not in the course and scope of his employment at the time of the accident. The jury also found that Frenkel was 90% at fault, while the decedent, Mr. Rachal, was 10% at fault and awarded a total of $805,000.00 in damages to the Rachals.

Subsequently, the trial judge ruled in the White case that Frenkel was 100% at fault and, contrary to the jury's verdict in Rachal, that Frenkel was a Mid-South employee and in the course and scope of his employment at the time of the accident. ¹ The trial judge awarded Melinda White a total of $689,376.74. In harmonizing the jury's verdict in Rachal with his own in White, the trial judge granted the Rachals' motion for judgment notwithstanding the verdict and denied Mid-South and Hartford's motion for new trial. ²

Frenkel, ³ Mid-South and Hartford appeal from the judgments of the trial court and the jury verdict as to damages. After our review of the record and appellate briefs, we agree with the trial court's finding that the more reasonable assessment of the facts is that Frenkel was a Mid-South employee in the course and scope of his employment at the time of the accident.

ASSIGNMENTS OF ERROR

Mid-South and Hartford appeal, assigning the following as error:

(1) The trial court erred in finding that Frenkel was an employee rather than an independent contractor of Mid-South at the time of the accident.

(2) The trial court erred in finding that Frenkel was in the course and scope of his employment with Mid-South at the time of the accident. ⁴

(3)(a) The trial court erred in failing to allow Dr. Herd to testify as to the effects of alcohol on a person's ability to drive.

(b) The trial court erred in failing to find Jason Rachal comparatively negligent and the jury erred in failing to find Jason Rachal more than 10% comparatively negligent, insofar as Jason Rachal was legally intoxicated at the time of the accident.

(4) The trial court's award of damages to Melinda White was excessive and constituted an abuse of discretion.

(5) The trial court erred in failing to grant Mid-South's motion for judgment notwithstanding the verdict as to the jury's award to the surviving children in Rachal for general damages and on the award for loss of support.

FACTS

The facts surrounding the accident of November 24, 1986, were correctly set forth by the trial judge, in his reasons for judgment, as follows:

"The facts as to how this accident occurred are undisputed and can lead to no other conclusion than that John E. Frenkel, III was negligent in the operation of his vehicle which led to the death of Jason Randolph Rachal and to the serious and permanently disabling injuries sustained by Melinda S. White.

The undisputed facts as to how the accident occurred showed that Mr. Frenkel was operating a passenger vehicle in a northbound direction on Louisiana Hwy. 1 in Natchitoches Parish, Louisiana on November 24, 1986 at approximately 10:00 p.m.....

The testimony of the investigating state trooper and the cross country truck drivers who were witnesses to this accident led both the court and the jury to conclude that Mr. Frenkel, while traveling northbound on Louisiana Highway 1 with Melinda S. White as a sleeping passenger in his vehicle, overtook three northbound tractor-trailer trucks and caused this tragic accident, which killed Mr. Rachal and left himself and Ms. White permanently injured...."

ASSIGNMENT OF ERROR NO. 1

The first issue to be determined is whether the trial court erred in finding that Frenkel, a professional wrestler, was an employee of Mid-South rather than an independent contractor. We find that the trial court was correct in its determination that Frenkel was an employee of Mid-South and adopt the trial court's excellent reasons for judgment, as follows:

"The court will first address the issue of whether Mr. Frenkel was an employee of Mid-South Sports, Inc., or an independent contractor under contract to Mid-South Sports, Inc. This issue has been before the appellate courts of this state time and again over the years and the following guidelines have evolved to assist courts in making the distinction between employee status or independent contractor status:

(1) The existence of a valid contract between the parties;

(2) That the work being done was of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;

(3) The contract calls for a specific piece work as a unit to be done according to the independent contractor's own methods without being subject to the control and direction of the principal, except as to result of the services to be rendered;

(4) The existence of a specific price for the overall undertaking; and

(5) A specific time and duration is agreed upon in the contract and is not subject to termination at the will of either side without liability for breach. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972); Poynor v. Cure, 443 So.2d 1151 (La.App. 5th Cir.1983), writ denied, 446 So.2d 1225 (La.1984); Smith v. Crown Zellerbach, 486 So.2d 798 (La.App. 1st Cir.1986), writ denied, 489 So.2d 246 (La.1986).

The court notes at the outset that none of the elements required to show a relationship of principal and independent contractor existed between Mr. Frenkel and Mid-South Sports, Inc. The very first requirement, and perhaps the most important because its existence seems to be implied in all the other requirements, is the existence of a contract. The evidence was undisputed that Mr. Frenkel signed no contract and although there was testimony that a contract was prepared for him to sign the fact that he did not sign it did not cause his employment as an entertainer/wrestler to be terminated. The second condition, that is, "that the work being done was of an independent nature such that the contractor may employ non-exclusive means in accomplishing it" certainly was not present here. Mr. Frenkel was told where to go, when to be there and exactly what to do when he got there. He likewise had no control over the third fourth and fifth condition set forth above. Generally, the single most important factor to consider in deciding whether an employer/employee relationship exists is the right of the employer to control the work of the employee. Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972); Roberts v. State, 404 So.2d 1221 (La.1981); Watson v. Ben, 459 So.2d 230 (La.App. 3rd Cir.1984). However, the evidence is, that John Frenkel was subject to the control and direction of Mid-South. Also, the amount of pay that John Frenkel received was not a specific price, but was determined solely at the discretion of Mid-South. Finally, John Frenkel could be terminated at any time solely at the will of Mid-South without liability. This right to terminate without cause has been found by the Louisiana Supreme Court to be characteristic of the employer/employee relationship. Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972).

It is well settled by our jurisprudence that besides other factors, the most important test in determining independent contractor status is the right to control the work which is reserved by the employer. Smith v. Hughes Wood Products, 544 So.2d 687 (La.App. 3rd Cir.1989). The evidence showed not only did Mid-South maintain the right to control the work of John Frenkel, but exercised this right.

John Frenkel began wrestling for Mid-South in June of 1986. For the next six months, Frenkel wrestled practically every night for Mid-South in various towns throughout Texas, Louisiana, Arkansas, Mississippi, Oklahoma, and Florida. He wrestled thirty matches in thirty-one days at the direction of Mid-South Sports, Inc. Frenkel could not refuse to wrestle in a match scheduled by Mid-South without being subject to...