Lionel Jones and Willie Wilson v. Maryland Casualty Company, Zurich American Insurance Company, Powell's Cable Company and Karen A. Jones

LIONEL JONES AND WILLIE * NO. 2018-CA-0552
WILSON
*
VERSUS COURT OF APPEAL
*
MARYLAND CASUALTY FOURTH CIRCUIT
COMPANY, ZURICH *
AMERICAN INSURANCE STATE OF LOUISIANA
COMPANY, POWELL'S *******
CABLE COMPANY AND
KAREN A. JONES

CONSOLIDATED WITH: CONSOLIDATED WITH:

COURTNEY GILLARD NO. 2018-CA-0553

VERSUS

FRANK POWELL, JR., POWELL
CABLE SERVICE, LLC, CABLE
MAN, INC., JOHN DOE AND
JEFFERSON PARISH TRANSIT

CONSOLIDATED WITH: CONSOLIDATED WITH:

TERRY R. WHITE NO. 2018-CA-0554

VERSUS

POWELL CABLE SERVICE, LLC,
KAREN A. JONES, MARYLAND
CASUALTY COMPANY, LIONEL
JONES, JEFFERSON PARISH
TRANSIT AND/OR VEOLIA
TRANSPORTATION SERVICES
INC., AND OLD REPUBLIC

CONSOLIDATED WITH: CONSOLIDATED WITH:

EVERETT HARRIS NO. 2018-CA-0555

VERSUS

MARYLAND CASUALTY
COMPANY, POWELL'S CABLE
SERVICE, LLC, KAREN A. JONES,
AND COX COMMUNICATIONS
LOUISIANA, LLC

1

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2012-07492, DIVISION “E”
Honorable Melvin C. Zeno, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Pro
Tempore Judge Madeline Jasmine)

LEDET, J., CONCURS WITH REASONS
JASMINE, J., CONCURS IN THE RESULT AND CONCURS WITH THE
REASONS ASSIGNED BY JUDGE LEDET

Michael Jay Begoun
WOLFE, BEGOUN & PICK, L.L.C.
2200 Tulane Avenue, Suite 200
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLEE, EVERETT HARRIS

Cesar R. Burgos
Robert J. Daigre
Gabriel O. Mondino
George M. McGregor
BURGOS & ASSOCIATES, L.L.C.
3535 Canal Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFFS/APPELLEES, LIONEL JONES AND
WILLIE WILSON

Jody Forester Jackson
Mary Bubbett Jackson
JACKSON + JACKSON
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170

COUNSEL FOR DEFENDANT/APPELLANT, POWELL’S CABLE
SERVICES, LLC D/B/A POWELL’S CABLE COMPANY

AFFIRMED
May 11, 2022

2

This appeal arises from an accident wherein a cable company truck struck a

public transit bus and allegedly injured the bus driver as well as the passengers.

Following a bench trial, the trial court found that the driver of the company truck

was acting in the course and scope of her employment at the time of the accident.

The trial court awarded the plaintiffs damages.

The cable company appeals contending that plaintiffs did not present

evidence that the cable company truck driver was acting in the course and scope of

her employment at the time of the accident and that the trial court overstepped his

role by asking the cable company owner a question on the witness stand.

After reviewing the trial testimony and evidence presented, we find that the

trial court did not err in finding that the cable company employee was acting in the

course and scope of her employment at the time of the accident because the

evidence established she was acting in the course and scope of her employment.

Additionally, the trial court did not abuse its discretion by asking a witness one

question, in that the trial court has great discretion and there is no jury to mislead

in a bench trial. As the cable company’s assignments of error lack merit, the

judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 16, 2012, Lionel Jones was operating a Jefferson Parish Transit

(“JPT”) bus when a Powell’s Cable Services, LLC d/b/a Powell’s Cable Company

(“Powell’s Cable”) truck, driven by Karren Jones, struck the bus. Lionel Jones and

several of the JPT bus passengers allegedly sustained injuries as a result.

Lionel Jones and Willie Wilson, a JPT passenger, filed suit against Maryland

Casualty Company (“MCC”), as an insurer of Powell’s Cable; Zurich American

Insurance Company (“Zurich”), as an insurer of Powell’s Cable; Powell’s Cable;

and Karren Jones for the injuries sustained during the accident. Courtney Gillard,

a JPT passenger, filed suit against Frank Powell, Jr.; Powell’s Cable; Cable Man,

Inc.; John Doe (driver of the JPT bus); and JPT. Terry White, a JPT passenger,

filed suit against Powell’s Cable; Karren Jones; MCC; JPT and/or Veolia

Transportation Services, Inc.; Lionel Jones; and Old Republic Insurance Company,

an insurer of JPT. Everett Harris,1 a JPT passenger, filed suit in First City Court

against MCC; Powell’s Cable; Karren Jones; and Cox Communications Louisiana,

LLC.2 The First City Court lawsuit was transferred to Orleans Parish Civil District

Court and the four lawsuits were consolidated.

Lionel Jones and Mr. Wilson filed a Motion for Partial Summary Judgment

on the issues of liability and insurance coverage as to MCC and Zurich.

Conversely, MCC and Zurich filed a Motion for Summary Judgment averring that

the Powell’s Cable truck driven by Karren Jones was removed from the Powell’s

Cable insurance policy prior to the accident. The trial court denied both Motions

for Summary Judgment. MCC and Zurich then re-urged the same Motion for

1 Mr. Harris later stipulated that his damages did not exceed $50,000.00.
2 Mr. Harris maintained that Cox “issued a contract for installation of cable services to Powell’s

which was in full force and effect at the time of the aforementioned collision, and is therefore
liable for the actions and/or inactions of its sub-contractor, Powell’s and its employees.”

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Summary Judgment, which the trial court granted. Plaintiffs’ claims against MCC

and Zurich were dismissed with prejudice.

After a bench trial,3 the trial court rendered judgments against Powell’s

Cable4 and awarded damages in favor of four of the five consolidated plaintiffs5:

Everett Harris - $9,782.00; Lionel Jones - $151,730.17; Willie Wilson -

$100,418.46; and Courtney Gillard - $31,251.00.

Mr. Gillard filed a Motion for New Trial and/or to Amend Judgment,

asserting that Mr. Powell should be held personally liable. Powell’s Cable filed a

Motion and Order for Appeal as to the final judgments of Lionel Jones, Mr.

Wilson, and Mr. Harris.6 The Motion and Order for Appeal noted that Mr.

Gillard’s Motion for New Trial remained pending. The trial court granted Mr.

Gillard’s Motion for New Trial. This Court, based on Mr. Gillard’s pending new

trial, stayed all consolidated matters on August 13, 2018. The stay was extended

on May 6, 2019, and November 4, 2020. However, the new trial had not yet

occurred. Accordingly, this Court lifted the stay on March 10, 2022. Powell’s

Cable’s appeal of the judgments in favor of Lionel Jones, Mr. Wilson, and Mr.

Harris followed.

Powell’s Cable asserts that Plaintiffs failed to prove that the accident

occurred while Karren Jones was in the course and scope of her employment and

that the trial court erroneously asked Mr. Powell a question on the witness stand.

3 Mr. Powell was not represented by counsel during the bench trial.
4 At the time of trial, Powell’s Cable was the only remaining defendant.
5 The estate of Mr. White settled and dismissed all of his claims with prejudice.
6 The lawsuits were consolidated, but the trial court issued an individual judgment for each

lawsuit.

4

STANDARD OF REVIEW

“In civil cases, the appropriate standard for appellate review of factual

determinations is the manifest error—clearly wrong standard, which precludes the

setting aside of a district court’s finding of fact unless that finding is clearly wrong

in light of the record reviewed in its entirety.” Hall v. Folger Coffee Co., 03-1734,

p. 9 (La. 4/14/04), 874 So. 2d 90, 98. “[O]ne of the basic tenets of the manifest

error standard of review is that ‘reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review, even though the

court of appeal is convinced that had it been the trier of fact, it would have

weighed the evidence differently.’” Id., 03-1734, pp. 10-11, 874 So. 2d at 99

(quoting Parish Nat. Bank v. Ott, 02-1562, p. 7 (La. 2/25/03), 841 So. 2d 749,

753). We “may not merely decide” if we would have made different factual

determinations. Hall, 03-1734, p. 9, 874 So. 2d at 98.

To justify reversing factual determinations, we must 1) “find from the record

that a reasonable factual basis does not exist for the finding” made by the trial

court and 2) “determine that the record establishes that the finding is clearly wrong

(manifestly erroneous).” Stobart v. State through Dep’t of Transp. & Dev., 617 So.

2d 880, 882 (La. 1993) (quoting Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987)).

“Thus, where two permissible views of the evidence exist, the factfinder’s choice

between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.

2d at 883.

“A legal error occurs when a trial court applies incorrect principles of law

and such errors are prejudicial.” Evans v. Lungrin, 97-0541, 97-0577, p. 7 (La.

2/6/98), 708 So. 2d 731, 735. “Legal errors are prejudicial when they materially

affect the outcome and deprive a party of substantial rights.” Id. “[W]here one or

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more trial court legal errors interdict the fact-finding process, the manifest error

standard is no longer applicable.” Provosty v. Arc Constr., LLC, 15-1219, p. 13

(La. App. 4 Cir. 11/2/16), 204 So. 3d 623, 632. “[I]f the record is otherwise

complete, the appellate court should make its own independent de novo review of

the record and determine a preponderance of the evidence.” Id.

The review of questions of law require appellate courts to utilize the de novo

standard of review. Johnson v. Orleans Par. Sch. Bd., 14-0277, p. 9 (La. App. 4

Cir. 4/26/17), 219 So. 3d 452, 462.

TRIAL TESTIMONY

Everett Harris

Everett Harris testified, via deposition, that he was sixty years old at the time

of trial and was a passenger on the JPT bus at the time of the accident. Mr. Harris

stated that he missed a couple weeks of work because of the accident and sought

approximately $900 in lost wages. Mr. Harris testified that he was sitting behind

the driver, next to a window, and was “all the way to the back.” Mr. Harris

described the accident as follows:

I was sitting in the back seat. Everybody just sitting
there. The bus going straight down the way he always
go. Then that big old truck come up the interstate to get
on Airline Highway and just (witness makes a sound) we
heard something hit the bus.

He stated that the bus was stopped when the Powell’s Cable truck struck

them on the driver’s side by the driver’s window. Mr. Harris alleged that six or

seven people fell on the floor of the bus. Then Mr. Harris clarified and stated that

the bus was moving and stopped after being struck. Mr. Harris also contended that

the Powell’s Cable truck did not drive off because “[i]t was still stuck on the bus

like that. It was still catching that bus.” Mr. Harris testified that there was a “big

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dent” on the bus and the mirror was “hanging down.” He did not see any damage

to the Powell’s Cable truck.

On impact, Mr. Harris stated that he hit his head and neck on the window

and hit his left shoulder “on that big old piece of iron.” Mr. Harris testified that the

accident made him “[a] little dizzy.” EMTs on scene “rubbed something on my

shoulder, some kind of medicine.” Mr. Harris described his shoulder pain as

“[l]ike you got a toothache or something. It was stinging me.” After the accident,

Mr. Harris stated he was about an hour late to work. Mr. Harris testified that his

wife picked him up from work early that day so he could seek medical treatment.

The next day, Mr. Harris stated he was “hurting and sore” and he went back

to the clinic. He continued going to the same clinic twice a week. Mr. Harris

stated that he was discharged from care about five months prior to his deposition.

He classified his continuing pain as “[s]till aching a little bit, like a little

toothache.” Mr. Harris testified that his “shoulder gets stiff and [he] can’t lit [sic]

it all the way” and that he cannot sleep on his left side. Overall, Mr. Harris stated

that his condition improved “[a] little bit.” Mr. Harris was later laid off from his

job, but he sometimes cuts grass for work.

Lionel Jones

Lionel Jones testified that he worked as a bus operator for JPT for twenty

years. Lionel Jones stated that he generally drove a bus five days a week or about

forty hours a week. Lionel Jones testified that he was driving a JPT bus on March

16, 2012, west towards the airport on Airline Highway. He brought the bus to a

“complete stop” for the ingress and egress of passengers. Then, the Powell’s Cable

truck, “from nowhere, slammed in the side of the bus and tore the side mirror off.”

Lionel Jones stated that the Powell’s Cable “truck hit me and kept going.” He

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illuminated as follows:

So as the truck proceeded down Airline Highway, I tried
to catch up with him, but the light managed to change.
That’s how I caught up with him, and I’m flagging,
letting the lady know that she just slammed in the side of
my bus. So she immediately pulled over, and that’s
when the police was [sic] called.

The driver of the Powell’s Cable truck was Karren Jones. Lionel Jones stated that

Karren Jones was driving “a work truck” that was clearly marked with the Powell’s

Cable information. Karren Jones told Lionel Jones she was employed by Powell’s

Cable.

Lionel Jones testified that when the bus was struck, he hit his left elbow and

lower back. At the time of the accident, Lionel Jones experienced pain in his

shoulder and “chest area.” The day after, Lionel Jones complained of lower back

pain and sought medical treatment “a couple days after.” Lionel Jones stated that

he went to Team Care and received “electric stimulation,” but his pain did not

completely resolve. Lionel Jones was then referred to Dr. Bartholomew and Dr.

Aprill. He received “about three” injections, but the injections did not help.

Lionel Jones stated that he still suffers from neck pain and back pain that “flares up

sometime [sic].” Lionel Jones testified that his pain affects his ability to perform

tasks at home and that he can no longer be intimate with his wife as often as he

would like.

Willie Wilson

Mr. Wilson was passenger on the bus and agreed with Lionel Jones’

description of the accident. He stated that the bus was at a complete stop when it

was struck by Powell’s Cable truck. Mr. Wilson was seated at the time of the

impact and felt pain in his neck and back. Mr. Wilson testified that he first sought

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medical treatment about two to three days after the accident. His pain did not

resolve, so he was referred to Dr. Bartholomew. Dr. Bartholomew then referred

Mr. Wilson to Dr. Aprill. Mr. Wilson received one injection in his neck and two in

his back for injuries related to the accident. He stated that the injections helped

temporarily, but that he continues to experience pain in his neck and lower back.

Mr. Wilson testified that his pain worsens if he attempts to be more active. He

takes medication for the pain.

Courtney Gillard

Mr. Gillard7 testified that he was sitting on the rear driver’s side of the bus

facing forward at the time of impact and described the accident as follows:

Well, the bus stopped like, I think like a half block
or a block past the Job Corps, and the bus was picking up
some people and letting some people off, and a truck, the
cable truck hit the bus and proceeded on, and the bus
pulled over and took our information from the accident.
* * *
My shoulder was on the windowsill, and the windowsill,
you know, pushed me away and back towards the
windowsill.

Following impact, Mr. Gillard felt pain in his shoulder, neck, and lower back. Mr.

Gillard continued to work after the accident, but asked to leave work early due to

pain.8

Frank Powell, Jr.

Mr. Powell, the sole owner of Powell’s Cable, testified that at the time of the

accident, he employed Karren Jones. Mr. Powell stated that Karren Jones would

drive a Powell’s Cable truck as part of her employment responsibilities. He stated

that MCC erroneously removed the truck involved in the accident from the work

7 Again, we note that Mr. Gillard’s claims are not presently before us.
8 The details of Mr. Gillard’s injuries and medical treatment are omitted.

9

insurance policy when he requested to remove a wholly separate vehicle. Mr.

Powell testified that he continues to conduct business as Powell’s Cable and works

under contracts in Louisiana, Mississippi, Alabama, and Texas. As a result of the

accident, Mr. Powell spent $6.00 to repair a mirror on the Powell’s Cable truck.

The trial court judge asked Mr. Powell one question: “Miss Jones, who was

operating the vehicle on the day of the accident, was she operating within the

course and scope of her employment with you?” Mr. Powell replied affirmatively.

COURSE AND SCOPE OF EMPLOYMENT

Powell’s Cable contends that Plaintiffs failed to prove all of the elements

necessary for finding Powell’s Cable vicariously liable for the accident caused by

Karren Jones. Specifically, Powell’s Cable avers that Plaintiffs did not show that

Karren Jones was working in the course and scope of her employment at the exact

time of the accident. For example, Powell’s Cable stated: “[t]hus, to recover

against a putative employer on a claim of respondeat superior, a plaintiff must

affirmatively prove that at the time of the incident sued upon, the employee was

acting in the course and scope of his employer.”

“Masters and employers are answerable for the damage occasioned by their

servants and overseers, in the exercise of the functions in which they are

employed.” La. C.C. art. 2320. “To find liability of an employer under the

doctrine of respondeat superior” three elements must be present: 1) “an

employer/employee relationship; 2) a negligent or tortious act on the part of an

employee; and 3) the act complained of must be committed in the course and scope

of employment.” Alphonse v. Omni Hotels Mgmt. Corp., 94-0157, p. 5 (La. App. 4

Cir. 9/29/94), 643 So. 2d 836, 840. The Louisiana Supreme Court expounded on

this doctrine as follows:

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An employer is answerable for the damage
occasioned by his servant in the exercise of the functions
in which the servant is employed. La.Civ.Code art. 2320.
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. Reed v. House of
Decor, Inc., 468 So.2d 1159, 1161 (La.1985); see also
W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 70 (5th ed. 1984). Whether an employee is within
the course and scope of his employment is a question that
is only answerable by general rules, because of the
unending contexts in which the question may arise.
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. W. Page Keeton et al., supra.

Orgeron on Behalf of Orgeron v. McDonald, 93-1353, p. 4 (La. 7/5/94), 639 So. 2d

224, 226-27.

“An 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.” Id., 93-1353, p. 4, 639 So. 2d at 227. “The dispatching of

employees to different work locations gives rise to many ‘shades of gray’ in the

otherwise “black and white” applications of the going and coming rule.” Id., 93-

1353, p. 5, 639 So. 2d at 227. For example, “[w]hen an employee is required to

check in at a certain place and is then dispatched to the work site for that day, he is

generally in the course of employment in the travel between the check in place and

the work site, but not between home and the check in place.” Id. “[M]ore than a

short duration for the personal errand is needed to justify a deviation falling within

the course and scope of employment, i.e., weighing all of the factors that increase

the risks of exposing the employer to vicarious liability.” Timmons v. Silman, 99-

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3264, p. 7 (La. 5/16/00), 761 So. 2d 507, 512.

Powell’s Cable contends that Plaintiffs were required to prove that Karren

Jones was acting in the course and scope of her employment at the moment of

impact. In the present matter, it is undisputed that Karren Jones was an employee

of Powell’s Cable on the day of the accident, that she drove a Powell’s Cable truck

as part of her job duties, and that she was operating the Powell’s Cable truck when

it struck the JPT bus. Mr. Powell testified that Karren Jones was operating within

the course and scope of her employment with Powell’s Cable that day. “[T]he

district court’s determination that a particular act is within the course and scope of

employment for purposes of vicarious liability is a factual finding governed by the

manifest error rule.” Baumeister v. Plunkett, 95-2270, p. 7 (La. 5/21/96), 673 So.

2d 994, 998. To reiterate, “ʻthis standard of review mandates that this court can

only reverse a lower court’s factual findings when (1) the record reflects that a

reasonable factual basis does not exist for the finding of the trial court and (2) the

record establishes that the finding is clearly wrong.’” Id., (quoting Emoakemeh v.

Southern University, 94-1194, p. 6 (La. App. 1st Cir. 4/7/95), 654 So. 2d 474, 477-

78). Accordingly, given the above evidence presented at the trial and the standard

of review, we do not find that the trial court committed manifest error by finding

Karren Jones was working within the course and scope of her employment at the

time of the accident.

ROLE OF TRIAL COURT JUDGE

Powell’s Cable contends that the trial court judge “plainly exceeded his role

as impartial trier of fact and instead acted as Plaintiffs’ advocate by seeking to

establish an essential element of Plaintiffs’ claims when he questioned Mr.

Powell.” While Mr. Powell was on the witness stand, the following colloquy

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occurred between the trial court judge and Mr. Powell:

THE COURT:

Miss Jones, who was operating the vehicle on the
day of the accident, was she operating within the course
and scope of her employment with you?

THE WITNESS:

Yes, sir.

“A trial judge has discretion in conducting a trial.” D.M.S. v. I.D.S., 14-

0364, p. 17 (La. App. 4 Cir. 3/4/15), 225 So. 3d 1127, 1138. “The court may

question witnesses, whether called by itself or by a party.” La. C.E. art. 614(B).

However, “the trial court must maintain impartiality and avoid becoming an

advocate for either side.” State in Interest of A.J., 14-0595, p. 7 (La. App. 4 Cir.

10/1/14), 151 So. 3d 659, 665. “The court has the power to require that the

proceedings shall be conducted with dignity and in an orderly and expeditious

manner, and to control the proceedings at the trial, so that justice is done.” La.

C.C.P. art. 1631(A). “The trial judge has great discretion in the manner in which

the proceedings are conducted before the court, and it is only upon a showing of a

gross abuse of discretion that appellate courts have intervened.” D.M.S., 14-0364,

p. 17, 225 So. 3d at 1138.

Testimony adduced already established that Karren Jones was an employee

of Powell’s Cable and that she was driving the Powell’s Cable truck at the time of

the accident. The trial court judge did not attempt to try plaintiffs’ case, but was,

perhaps, seeking clarification. See Patin v. DeStevens, 415 So. 2d 1011, 1012 (La.

App. 4th Cir. 1982) (this Court found “[h]e only did what could be expected of any

competent judge in a default judgment proceeding, as he was merely trying to elicit

facts which had been omitted, but were pertinent in deciding the case”). Further,

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the dangers possible from a judge questioning a witness are lessened in a bench

trial “ʽbecause there is no jury to confuse or mislead.’” Ledet v. Ledet, 04-509, p. 5

(La. App. 5 Cir. 3/29/05), 900 So. 2d 986, 989 (quoting Williams v. W. Preferred

Cas. Ins. Co., 465 So. 2d 191, 194 (La. App. 3rd Cir. 1985)). Thus, having

reviewed the record, we do not find that the trial court judge’s singular question

presented a gross abuse of discretion.9 Therefore, Powell’s Cable’s assignment of

error lacks merit.

DECREE

For the above-mentioned reasons, we find that the trial court did not err by

finding Plaintiffs established that Karren Jones was in the course and scope of her

employment with Powell’s Cable when the accident occurred. We also find that

the trial court did not abuse its vast discretion by asking Mr. Powell one question

while he was on the stand. The judgment of the trial court is affirmed.

AFFIRMED

9 We note that no contemporaneous objection was lodged by Mr. Powell.

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