Gerald Thibodeaux, Jr. v. American Alternative Insurance Corporation, Munich Reinsurance America, Inc., Marty Bourg, and Terrebonne Parish Consolidated Government

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2024 CA 0383
2024 CW 0241

VERSUS

AMERICAN ALTERNATIVE INSURANCE CORPORATION, MUNICH
REINSURANCE AMERICA, INC., MARTY BOURG, AND TERREBONNE
PARISH CONSOLIDATED GOVERNMENT

Judgment Rendered:
F# U

On Appeal from the
Thirty -Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
No. 194202, Division A

The Honorable Timothy C. Ellender, Jr. Judge Presiding

Brian J. Marceaux Attorneys for Defendants/ Appellants
Julius P. Hebert, Jr. Marty Bourg and Terrebonne Parish
Derick A. Bercegeay Consolidated Government
Brianna Wilson Orgeron
Houma, Louisiana

David M. Geerken Attorneys for Plaintiff/Appellee
Luke C. Norris Gerald Thibodeaux, Jr.
Brent P. Frederick
New Orleans, Louisiana

BEFORE: GUIDRY, C.J., PENZATO, AND STROMBERG, JJ.

STROMBERG, J.

In this tort suit, the defendants appeal the grant of the plaintiff' s motion for

partial summary judgment wherein the district court held that statutory emergency -

preparedness immunity did not apply to this suit. The defendants also filed an

application for supervisory writs from the denial of their motion for summary

judgment seeking dismissal from the suit on the same basis of immunity. For the

reasons that follow, we reverse the judgment granting the plaintiff's partial summary

judgment motion, and we grant the defendants' writ application and reverse the

denial of the defendants' summary judgment motion.

FACTS AND PROCEDURAL HISTORY

On July 29, 2022, Gerald Thibodeaux, Jr. filed suit against the defendants,

Marty Bourg and his employer, Terrebonne Parish Consolidated Government

TPCG"), seeking damages arising out of an automobile accident that occurred
1
around 6: 37 a.m. on August 29, 2021. According to the petition, Mr. Thibodeaux

was a Terrebonne Parish Sheriff's Office employee who was working a Hurricane

Ida evacuation detail. At the time of the accident, Mr. Thibodeaux was parked in a

Sheriff' s Office vehicle, with its emergency lights flashing, across both lanes of

Louisiana State Highway 665 near milepost 8 in Terrebonne Parish. Mr. Thibodeaux

alleged that Mr. Bourg was driving a truck owned by TPCG and was not paying

attention to the roadway when he collided with the Sheriff' s Office vehicle driven

by Mr. Thibodeaux. Mr. Thibodeaux further alleged that Mr. Bourg was in the

course and scope of his employment with TPCG at the time of the collision.

According to the petition, TPCG was vicariously liable for Mr. Bourg' s acts; was at

fault in its duty to establish and use procedures to prevent such acts; and was

negligent in its hiring, training, supervision, and retention of Mr. Bourg.

i Mr. Thibodeaux also named as defendants American Alternative Insurance Corporation and
Munich Reinsurance America, Inc., the insurers of TPCG.

2

The defendants, TPCG and Mr. Bourg ( collectively " Terrebonne"), filed an

answer and a first supplemental and amending answer asserting several affirmative

defenses, one of which was immunity for personnel engaged in emergency -

preparedness activities pursuant to La. R.S. 29: 723 and 735. On November 9, 2023,

Mr. Thibodeaux filed a motion for partial summary judgment seeking the dismissal

of the defendants' affirmative defense of emergency -preparedness immunity under

La. R.S. 29: 723 and 29: 735. 2 On January 9, 2024, Terrebonne filed a cross- motion

for summary judgment seeking dismissal from the suit on the basis of emergency -

preparedness immunity pursuant to La. R.S. 29: 723 et. seq., specifically La. R.S.

29: 735, and also pursuant to La. R.S. 9: 2798. 1. The district court held a hearing on

the summary judgment motions on February 5, 2024, and granted Mr. Thibodeaux' s

motion for partial summary judgment and denied Terrebonne' s motion for summary

judgment, finding that emergency -preparedness immunity under La. R.S. 29: 735 did

not apply to Terrebonne. On February 22, 2024, the district court signed a judgment

in accordance with its rulings, granting Mr. Thibodeaux' s motion for partial

summary judgment, denying Terrebonne' s motion for summary judgment, and

designating the judgment granting Mr. Thibodeaux' s motion as a final judgment,
3
having made an express determination that there is no just reason for delay. ,

2 In his partial summary judgment motion, Mr. Thibodeaux also sought the dismissal of the
defendants' affirmative defense of governmental immunity under the following additional statutes,
which he alleged had no relevance in this case: La. R.S. 29: 734 ( price gouging), La. R.S. 13: 5112
award of costs and legal interest against state or political subdivisions), and La. R.S. 32: 24 and
32: 25 ( authorized emergency response vehicles responding to emergency calls).

3 A district court' s designation of a judgment as final pursuant to La. C. C. P. art. 1915( B)( 1) is not
determinative. As an appellate court, we are obligated to determine whether the district court
properly designated the judgment as final pursuant to La. C. C. P. art. 1915 and to recognize any
lack of jurisdiction if it exists. Mandeville Partnership v. A Luxury Transportation, LLC,
2021- 1450 ( La. App. 1 Cir. 8/ 24/ 22), 348 So. 3d 763, 769 n.9. In applying the factors set forth in
R.J. Messinger, Inc. v. Rosenblum, 2004- 1664 ( La. 3/ 2/ 05), 894 So. 2d 1113, 1122, we conclude
that the district court properly designated the judgment as a final judgment for purposes of appeal.

3

Terrebonne filed a motion for appeal from the part of the judgment granting

Mr. Thibodeaux' s motion for partial summary judgment and an application for

supervisory writs from the part of the judgment denying its motion for summary
judgment. On May 20, 2024, this court referred the writ application to the panel to

which the appeal in this matter was assigned. Thibodeaux v. American

Alternative Insurance Corp., 2024- 0241 ( La. App. 1 Cir. 5/ 20/ 24) ( unpublished

writ action). See Waterworks District No. 1 of Desoto Parish v. Louisiana

Department of Public Safety & Corrections, 2016- 0744 ( La. App. 1 Cir. 2/ 17/ 17),

214 So. 3d 1 n. l, writ denied, 2017- 0470 ( La. 5/ 12/ 17), 219 So. 3d 1103.

DISCUSSION
STANDARD OF REVIEW

Appellate courts review the granting of a summary judgment de novo using

the same criteria governing the district court' s consideration of whether summary

judgment is appropriate, i.e., whether there is any genuine issue of material fact and

whether the mover is entitled to judgment as a matter of law. See La. C. C. P. art.

966( A)(3); Bayview Loan Servicing, LLC v. Holden, 2023- 1347 ( La. App. 1 Cir.

6/ 7/ 24), 391 So. 3d 751, 756, writ denied, 2024- 01032 ( La. 11/ 14/ 24), So. 3d

The summary judgment procedure is expressly favored in the law and is

designed to secure the just, speedy, and inexpensive determination of non-domestic

civil actions. See La. C. C. P. art. 966( A)(2). The purpose of a motion for summary

judgment is to pierce the pleadings and to assess the proof in order to see whether

there is a genuine need for trial. Hines v. Garrett, 2004- 0806 ( La. 6/ 25/ 04), 876

So. 2d 764, 769 (per curiam). After an adequate opportunity for discovery, 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. C. C. P. art. 966( A)(3). The only documents that

S

may be filed or referenced in support of or in opposition to the motion are pleadings,

memoranda, affidavits, depositions, answers to interrogatories, certified medical

records, certified copies of public documents or public records, certified copies of

insurance policies, authentic acts, private acts duly acknowledged, promissory notes

and assignments thereof, written stipulations, and admissions. La. C. C. P. art.

966( A)(4)( a). 4

On a motion for summary judgment, the initial burden of proof rests with the

mover. See La. C. C. P. art. 966( D)( 1); Bayview, 391 So. 3d at 756. If, however, the

mover will not bear the burden of proof at trial on the matter that is before the court

on the motion, the mover' s burden on the motion does not require that all essential

elements of the adverse party' s claim, action, or defense be negated. Instead, after

meeting its initial burden of showing that there are no genuine issues of material

fact, the mover may point out to the court that there is an absence of factual support

for one or more elements essential to the adverse party' s claim, action, or defense.

Thereafter, summary judgment shall be granted unless the adverse party can produce

factual evidence 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. See La. C. C. P.

art. 966( D)( 1); Bayview, 391 So. 3d at 756- 57.

A claim of emergency -preparedness immunity under La. R.S. 29: 735 is

treated as an affirmative defense under Louisiana law. Banks v. Parish of

Jefferson, 2008- 27 ( La. App. 5 Cir. 6/ 19/ 08), 990 So. 2d 26, 30, writ denied, 2008-

1625 ( La. 10/ 24/ 08), 992 So. 2d 1043. Thus, despite the plaintiff's burden at trial to

prove the defendants' liability for the claims alleged, the defendants bear the burden

of proving the applicability of the emergency -preparedness immunity provision to

4 The motions for summary judgment in this case were filed and heard after the amendment of La.
C. C. P. art. 966 by 2023 La. Acts No. 317, § 1 ( eff. Aug. 1, 2023), and 2023 La. Acts No. 368, § 1
eff. Aug. 1, 2023).

5

the plaintiff' s claims. See Monteville v. Terrebonne Parish Consolidated

Government, 567 So. 2d 1097, 1106 (La. 1990); Banks, 990 So. 3d at 30. Moreover,

immunity statutes are strictly construed against the party claiming the immunity.
Monteville, 567 So. 2d at 1101.

STATUTORY EMERGENCY -PREPAREDNESS IMMUNITY

The Louisiana Legislature promulgated the Louisiana Homeland Security and

Emergency Assistance and Disaster Act, setting forth its purpose in pertinent part in
La. R.S. 29: 722( A) as follows:

b] ecause of the existing possibility of the occurrence of emergencies
and disasters of unprecedented size and destructiveness resulting from
natural or manmade causes, and in order to ensure that preparations
of this state will be adequate to deal with such emergencies or disasters,
and in order to detect, prevent, prepare for, investigate, respond to, or
recover from these events, and generally to preserve the lives and
property of the people of the state of Louisiana.

Under La. R.S. 29: 723( 4), " disaster" is defined in pertinent part as " the result of a

natural or man-made event which causes loss of life, injury, and property damage,

Further,
including but not limited to natural disasters such as hurricane."

emergency" means, in pertinent part, "[ t] he actual or threatened condition which

has been or may be created by a disaster." La. R.S. 29: 723( 5)( a). "[ E] mergency

preparedness" encompasses " the mitigation of, preparation for, response to, and the

recovery from emergencies or disasters. The term ` emergency preparedness' shall

be synonymous with ` civil defense', ` emergency management', and other related

programs of similar name." La. R.S. 29: 723( 6).

Regarding immunity, La. R.S. 29: 735( A)( 1) provides in pertinent part:

Neither the state nor any political subdivision thereof, nor other state
agencies, nor, except in case of willful misconduct, the employees or
representatives of any of them engaged in any homeland security and
emergency preparedness and recovery activities, while complying with
or attempting to comply with this Chapter or any rule or regulation
promulgated pursuant to the provisions of this Chapter shall be liable
for the death of or any injury to persons or damage to property as a
result of such activity.

Col

Representatives and employees of the State, its agencies, or political subdivisions

are also immune, except if they engage in willful misconduct in the course of

preparing for a disaster or emergency. See McQuirter v. State though Louisiana

Department of Public Safety & Corrections Elayn Hunt Correctional Center,

2020- 1192 ( La. 1/ 12/ 21), 308 So. 3d 285, 285 ( per curiam); Noyel v. City of St.

Gabriel, 2015- 1890 ( La. App. 1 Cir. 9/ 1/ 16), 202 So. 3d 1139, 1145, writ denied,

2016- 1745 ( La. 11/ 29/ 16), 213 So. 3d 392.

DISCUSSION

In its affirmative defenses, Terrebonne asserted that it was entitled to statutory

immunity for injury or death resulting from emergency preparedness activities

pursuant to La. R.S. 29: 735( A)( 1). Mr. Thibodeaux moved for a partial summary

judgment contending that Terrebonne was not entitled to statutory emergency -

preparedness immunity. According to Mr. Thibodeaux, because Mr. Bourg was

instructed moments before the collision to return home from his job servicing pumps

for TPCG in anticipation of the hurricane, he was no longer in the course and scope

of his employment or engaged in emergency preparedness activity when the

collision occurred. However, in Terrebonne' s motion for summary judgment

seeking dismissal from the suit based on statutory emergency -preparedness

immunity, it contended that the defendants were engaged in emergency -

preparedness activities at the time of the collision. Terrebonne pointed out that Mr.

Bourg was also entitled to the statutory emergency -preparedness immunity because

he was engaged in emergency preparedness and his actions did not constitute willful

misconduct, such that he would be excluded from entitlement to statutory immunity.

At the conclusion of the summary judgment hearing, the district court, in its

reasons for judgment, determined that the statutory emergency -preparedness

immunity did not apply because Mr. Bourg was on his way home and, accordingly,

was no longer bound by his employer and could " go and come as he pleased." The

W

district court added that had the collision occurred fifteen minutes or even a couple

of seconds or minutes before, it might have concluded differently.

On appeal, Terrebonne urges three assignments of error. Terrebonne contends

that the district court erred as a matter of law in finding that the activity which Mr.

Bourg was engaged in, which was ascertaining that all pumps were functioning in
anticipation of Hurricane Ida' s arrival, did not constitute emergency preparedness

under La. R.S. 29: 721 et seq. Terrebonne next contends that the district court erred

as a matter of law by finding that Mr. Bourg was not in the course and scope of his
duties with TPCG at the time of the collision. Lastly, Terrebonne contends that the

district court erred as a matter of law in holding that for immunity to apply, Mr.

Bourg had to be in the course and scope of his employment because the law for

emergency -preparedness immunity does not require emergency personnel to be in

the course and scope of their employment.

In support of his motion for partial summary judgment and in opposition to

Terrebonne' s summary judgment motion, Mr. Thibodeaux attached his petition,

Terrebonne' s answer and supplemental answer, and excerpts from Mr. Bourg' s

deposition with exhibits ( three daily operator check lists, a certified copy of the

Terrebonne Parish State of Emergency Declaration, and excerpts from the TPCG e -

safety handbook).

In support of its summary judgment motion and in opposition to Mr.

Thibodeaux' s summary judgment motion, Terrebonne attached to its memoranda the

same items Mr. Thibodeaux had attached and, in addition, Mr. Bourg' s complete

deposition with additional exhibits, photographs of the vehicles, an uncertified copy

of the State of Louisiana State of Emergency Declaration -Tropical Storm Ida,

Barney Crochet' s affidavit, and a Sheriff' s Office letter.' Terrebonne also attached

5 In his memorandum in opposition to Terrebonne' s summary judgment motion, Mr. Thibodeaux
objected to several exhibits attached to Terrebonne' s summary judgment motion, but he did not
object to those same exhibits when they were attached to Terrebonne' s memorandum in opposition

n.

Mr. Bourg' s affidavit to its opposition to Mr. Thibodeaux' s summary judgment
motion.

In support of its summary judgment motion and in opposition to Mr.

Thibodeaux' s motion, Terrebonne also attached to Mr. Bourg' s deposition a certified

copy of the executive order issued by the Parish President of Terrebonne Parish on

August 26, 2021, declaring a parish -wide state of emergency pursuant to La. R.S.

29: 721 for the approaching Hurricane Ida until further notice.b

Terrebonne also submitted the affidavit of Barney Crochet, who was

employed by TPCG as Operations Supervisor in the Drainage Department and who

supervised Mr. Bourg. Mr. Crochet stated that on August 29, 2021, TPCG was

to his summary judgment motion. Louisiana Code of Civil Procedure article 966( D)(2) states that
the district court " shall consider only those documents filed or referenced in support of or in
opposition to the motion for summary judgment but shall not consider any document that is
excluded pursuant to a timely filed objection." Louisiana Code of Civil Procedure article
966( D)( 2) also states that the district court " shall consider all objections prior to rendering
judgment. The court shall specifically state on the record or in writing whether the court sustains
or overrules the objections raised."

At the summary judgment hearing the district court stated that the evidence submitted in
support of and in opposition to the summary judgments was identical for both sides, which was
not entirely accurate as Terrebonne submitted Mr. Bourg' s complete deposition. The court also
said there was no objection to any exhibits on the summary judgment motions and " all" were
submitted." The district court asked if it was " fair to say" that there was no genuine issue of
material fact, and both counsel agreed. Given the inconsistency as to the objections, we will
consider the exhibits as not objected to. See Lacassin v. Department of Wildlife and Fisheries,
2023- 1052 ( La. App. 1 Cir. 6/ 4/ 24), 391 So. 3d 731, 734, writ denied, 2024- 00874 ( La. 10/ 23/ 24),
395 So. 3d 252. Neither party raises any issue as to the objections on appeal.
In our review of the motion for summary judgment, this court shall consider any documents
to which no objection is made to determine, de novo, if we should give any evidentiary value to
the document. Hebert v. St. Mary Parish, 2023- 1099 ( La. App. 1 Cir. 4/ 19/ 24), 390 So. 3d 388,
393, writ denied. 2024- 00642 ( La. 9/ 24/ 24), 392 So. 3d 1145. In reviewing the documents, we will
give no evidentiary value to the photographs and the sheriff's office letter that Terrebonne
submitted as they are not listed as proper summary judgment documents under La. C. C. P. art.
966( A)(4)( a) and were not properly authenticated by an affidavit or deposition to which they were
attached. See Chet Morrison Contractors, L.L.C. v. Spartan Directional, LLC, 2023- 0981
La. App. 1 Cir. 6/ 14/ 24), 391 So. 3d 1103, 1112 n.9; Velocity Investments, LLC v. Pasqua,
2022- 0626 ( La. App. 1 Cir. 1/ 10/ 23), 361 So. 3d 23, 27 n. 6.

6 Also attached to Terrebonne 's summary judgment motion and its opposition was an uncertified
copy of the governor' s proclamation of a state of emergency for then tropical storm Ida issued on
August 26, 2021, and effective until September 27, 2021, unless terminated sooner. While La.
C. C. P. art. 966( A)(4)( a) requires that public documents filed with or referred to in support of or in
opposition to a summary judgment motion be certified, La. C. E. art. 202( B)( 1)( a) states that a court
shall take judicial notice of a proclamation of the governor of the state if a party requests it and
provides the court with the information needed by it to comply with the request. Nevertheless,
whether this uncertified document has evidentiary value to show the existence of a state of
emergency is inconsequential because both parties filed a certified copy of the Terrebonne Parish
State of Emergency Declaration with their motions.

W

working under emergency declarations issued by the governor and Parish President.
According to Mr. Crochet, on that day, in preparation for Hurricane Ida, he was
instructed by " Administration" to send pump attendants, including Mr. Bourg, to

inspect pumps. Mr. Crochet stated that he gave each pump attendant he called that

day a " hot list," which included the pumps they were to service. Mr. Crochet also

stated that a pump attendant was paid hazard pay when working during a state of

emergency and that the pump attendant was paid from the time he left his house until
the time he returned home.

In his deposition, Mr. Bourg testified that at the time ofthe collision on August

29, 2021, he was employed as a pump attendant with TPCG. He stated that his job

duties included preparing and making sure all pumps were in running condition for

bad weather. On August 29, 2021, his supervisor, Mr. Crochet, called him at home

at approximately 4: 00 a.m. to give him a " hot list" of the pumps to service. To drive

to the pumps, Mr. Bourg used a TPCG truck with the yellow vehicular light on the

roof turned on. Mr. Bourg testified that before the collision, he had serviced two

pumps, and, at the time of the collision, he was driving to pump DO1, another pump

which he was ordered to service that was located about a quarter of a mile away. He

testified that he never made it to pump DOl because his supervisor, Mr. Crochet,

called him and told him to " turn around and go home" because " the hurricane was

getting ready to come" and " the weather was getting bad."

Regarding the collision, Mr. Bourg testified as follows:

Q. [ A]nd you did not go service [ DO 1 ] that day?
A. No. I didn' t because I was told to turn around and go home.

Q.... They told you go get off the road and go where? Where did you
go after that?
A. Home.

Q. And when did they call you? ... They called you to get off the road
prior to the collision?
A. Right prior to the collision.
Q. And so, right prior to the collision, you' re no longer heading to
DO 1 ? You' re heading home?

WE

A. At that moment, I was heading to the driveway to turn around to go
home.
Q. So you were heading home?
A. After I turned around, yes.

Q.... [ W] hen was the first time you saw Mr. Thibodeaux' s vehicle?
A. Maybe 10 to 15 seconds after I hit the hang-up button with my
supervisor.

Q. And that was the call that told you to head home?
A. Yes.
Q. And the crash report here says that you looked down. Is that accurate
to what happened? You looked down and you looked up and saw the
vehicle there?
A. Yes. Yes.

When asked if he was paying attention immediately before the collision, Mr.

Bourg answered, " I was called." He additionally testified that he was looking down

for a second to hit the hang-up button on my phone." Mr. Bourg later testified, " At

the time of the accident, I was not heading home. I was going to a safe place to turn

the vehicle around to head home." After the collision and after the state trooper told

him and Mr. Thibodeaux they were free to go, he turned the truck around and headed

home.

According to Mr. Bourg, when working in a state of emergency, such as in

this situation, his day started when he left the house and ended when he returned

home. Mr. Bourg testified that he would " usually pull on the shoulder to talk on the

phone, but at that time, where I was, there was no shoulder." Under the state of

emergency, he testified he could use his phone while operating a vehicle.

Our de novo review of the evidence presented in support of and in opposition

to the summary judgment motions establishes that there are no genuine issues of

material fact regarding whether, at the time of the collision, Mr. Bourg was in a

parish -owned truck engaged in emergency -preparedness activities for TPCG during

a declared state of emergency in his job as a pump attendant. After checking two

pumps, Mr. Bourg was on his way to the third pump his supervisor had assigned him

to check to prepare for the approaching hurricane, which was about a quarter of a

11

mile from the scene of the collision. Immediately before the collision, his supervisor

phoned him to tell him to return home as the weather conditions were deteriorating

due to the hurricane. Mr. Bourg momentarily looked down at his phone to end the

call, and when he returned his eyes to the road, he saw Mr. Thibodeaux' s vehicle

and collided with it. The collision occurred after Mr. Bourg hung up the phone, but

before he had found a safe place to turn around to drive home. These facts are not

in dispute and pursuant to La. R. S. 22: 735( A)( 1), Terrebonne is entitled to

Moreover, Mr.
emergency preparedness immunity under La. R.S. 22: 735( A)( 1).

Bourg is also entitled to immunity as there is no allegation that he engaged in willful
misconduct.'

Mr. Thibodeaux contends and the district court stated in its reasons for

judgment at the hearing that Mr. Bourg was on his way home when the collision

occurred. However, when asked if he was heading home prior to the collision, Mr.

Bourg stated twice that at the time of the collision he was not heading home, but he

was headed to a driveway or safe space to turn around to go home. It was after the

collision, when the state trooper told him he could go, that he turned the truck around

to head home. Mr. Bourg' s engagement in emergency preparedness did not end

immediately before the collision when he hung up the phone after his supervisor

called to tell him to return home; he was still traveling in the direction to check the

pump and had yet to find a safe place to turn around to return home. The collision

occurred during that time period, which was in the course of emergency

preparedness.

While Mr. Bourg was not yet driving home when the collision occurred in this

case, we do note that in Rabee v. Louisiana Department of Public Safety &

Willful misconduct" pursuant to La. R.S. 29: 735 is some voluntary, intentional breach of duty—
which may be unlawful, dishonest, and/ or improper— that is committed with bad intent or, at best,
with wanton disregard for the consequences. Noyel v. City of St. Gabriel, 2015- 1890 ( La. App.
1 Cir. 9/ 1116), 202 So. 3d 1139, 1145, writ denied, 2016- 1745 ( La. 11/ 29/ 16), 213 So. 3d 392.

12

Corrections, 2023- 384 ( La. App. 5 Cir. 11/ 2/ 23), 378 So. 3d 71, 75, writs denied,

2023- 01620 ( La. 2/ 14/ 24), 379 So. 3d 30, and 2023- 01651 ( La. 2/ 14/ 24), 379 So. 3d

34, the Fifth Circuit stated that the rule that an employee traveling to or from work

generally is not in the course and scope of employment for the purposes of vicarious

liability under La. C. C. art. 2320 did not apply to its immunity analysis under La.
R.S. 29: 735( A)( 1). 8 This court held in Benton v. State through Department of

2021 WL
Children & Family Services, 2020- 1214 ( La. App. 1 Cir. 8/ 13/ 21),

3578857, * 1 ( unpublished writ action), writ denied, 2021- 01815 ( La. 1/ 26/ 22), 332

So. 3d 82, that a Louisiana Department of Children and Family Services ( LDCFS)

employee driving outside of normal work hours to an alternate work location to

distribute disaster supplemental nutritional cards to flood victims at the direction of

LDCFS during a declared state of emergency was engaged in emergency -

preparedness activity. While driving a non-government vehicle, the employee struck

a pedestrian at an intersection when she was leaving home on her way to the disaster

relief distribution center, which was over forty miles away. Benton, 2021 WL

3578857 at * 2 ( Holdridge, J., dissenting). This court concluded that her assignment

and "the extraordinary travel incident thereto caused her to be engaged in a homeland

security and emergency preparedness and recovery activity at the time of the

accident." Benton, 2021 WL 3578857 at* 1.

Similarly, Breaux v. Worrell, ( W.D. La. 2024), 2024 WL 263943, * 1- 2,

appeal filed, ( 5th Cir. 2024), involved an accident that occurred when TPCG' s

contracted employee, Kevin Worrell, collided with another vehicle on his way to his

temporary assigned lodging in Lafayette from work in Houma while assisting in

Hurricane Ida recovery during a state of emergency. The federal court found that

8 In Rabee, the government employee was in a car accident in a government vehicle while driving
to a special assignment protecting hurricane evacuees at a hotel during a state of emergency. 378
So. 3d at 73.

13

Louisiana courts have consistently held that an individual can be engaged in

emergency preparedness activity when traveling to an emergency preparedness

destination." Breaux, 2024 WL 263943 at * 6, citing Rabee, 378 So. 3d at 75, and

Benton, 2021 WL 3578857 at * 1. The court found that Mr. Worrell' s return each

day after work to his place of lodging was a necessary part of the emergency -
Breaux,
preparedness activity and thus covered by La. R.S. 29: 735' s immunity.

2024 WL 263943 at * 7.

In this case, the undisputed facts establish that Mr. Bourg was traveling to

check a pump for emergency preparedness when his supervisor called to tell him to

return home due to the approaching hurricane. The collision at issue occurred almost

immediately after he looked away from the road to hang up the phone, and he had

not begun his drive home when it happened. Under these circumstances, TPCG and

Mr. Bourg have met their burden of proving that the emergency preparedness

immunity of La. R.S. 29: 735( A)( 1) applies, and the district court erred in granting

Mr. Thibodeaux' s summary judgment motion and denying Terrebonne' s summary

judgment motion.

CONCLUSION

For the foregoing reasons, we reverse that part of the district court' s February

22, 2024 judgment granting Gerald Thibodeaux Jr.' s motion for partial summary

judgment finding immunity under La. R.S. 29: 735( A)( 1) did not apply to Marty

Bourg and Terrebonne Parish Consolidated Government. We grant Marty Bourg

and Terrebonne Parish Consolidated Government' s writ application and reverse that

part of the February 22, 2024 judgment denying their motion for summary judgment.

We render judgment in favor of Marty Bourg and Terrebonne Parish Consolidated

Government and against Gerald Thibodeaux, Jr., granting their motion for summary

judgment, finding they are entitled to immunity under La. R.S. 29: 735( A)( 1), and

14

Appeal costs are
dismissing Mr. Thibodeaux' s suit against them with prejudice.

assessed to Gerald Thibodeaux, Jr.

JUDGMENT REVERSED AND RENDERED; WRIT GRANTED.

ILI