Timothy D. Koehl Versus Rli Insurance Company

TIMOTHY D. KOEHL NO. 21-C-68

VERSUS FIFTH CIRCUIT

RLI INSURANCE COMPANY, ET AL. COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 758-658, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

May 12, 2021

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

WRIT GRANTED,
JUDGMENT REVERSED,
SUMMARY JUDGMENT GRANTED,
VICARIOUS LIABILITY CLAIMS DISMISSED
SMC
FHW
JGG

COUNSEL FOR PLAINTIFF/RESPONDENT,
TIMOTHY D. KOEHL
Darla L. D'Amico
Michael J. Almerico
Callan Johns
Peyton Bowman
Glenn C. McGovern
P. Jeremy LaFleur
Lauren A. Lam

COUNSEL FOR DEFENDANT/RESPONDENT,
GEICO GENERAL INSURANCE COMPANY
Alejandro Cobar

COUNSEL FOR DEFENDANT/RELATOR,
PACKARD TRUCK LINES, LLC
Matthew D. Moghis
William Peter Connick
Michael S. Futrell

COUNSEL FOR DEFENDANT/RESPONDENT,
ROBERT T. SALASSI
Steven O. Medo, Jr.

COUNSEL FOR DEFENDANT/RESPONDENT,
AXIS SURPLUS INSURANCE COMPANY
Sarah Smith
Jessica Z. Barger
Michael Adams-Hurta

CHEHARDY, C.J.

In this personal injury case, the trial court denied defendant-relator Packard

Truck Lines, LLC’s, motion for summary judgment seeking dismissal of Mr.

Timothy Koehl’s claims against it. For the reasons that follow, we grant Packard’s

writ application, reverse the trial court judgment under review, grant summary

judgment in favor of Packard, and dismiss Koehl’s vicarious liability claims with

prejudice.

FACTS AND PROCEDURAL HISTORY

On Saturday morning, March 14, 2015, Mr. Robert Salassi was driving his

personally owned vehicle when he struck Koehl’s vehicle while turning into the

Lowe’s parking lot off of Veterans Blvd. in Metairie. Salassi produced an

insurance card indicating that his vehicle was insured by RLI Insurance Company.

Additional discovery revealed that the RLI policy was a commercial policy issued

to Packard.1 Packard is a heavy-equipment transport company that carries

equipment used in the oil industry.

Until he passed away in November 2015, Salassi was one of three

members/owners of Packard. Approximately six months before the March 2015

accident, Salassi was diagnosed with lung cancer. Packard’s corporate

representative, Mr.Claiborne Perrilliat, testified in his deposition that Salassi

stepped away from day-to-day operations at Packard at the time of the diagnosis,

though he continued receiving a fixed salary until his death.2

1
In addition to the Commercial Auto Liability policy, RLI, as Packard’s primary insurer, and
AXIS Surplus Insurance Company, as Packard’s excess insurer, insured Packard for Trucker’s
Liability coverage and Commercial General Liability coverage.
2
Before his illness, Mr. Salassi acted as a dispatcher, setting up transportation logistics for the
company. Evidence in the record indicates that he would work one week on and one week off.
When Mr. Perrilliat was asked during his deposition if Salassi worked part-time or came to the
office after he became ill [in late 2014], Perrilliat stated: “No, sir, he stayed at home. He was
dying of cancer, lung cancer.”

21-C-68 1

On March 11, 2016, plaintiff Koehl filed suit against Salassi, Packard, and

Packard’s insurers, asserting that Salassi was in the course and scope of his

employment with Packard at the time of the accident. Packard filed a motion for

summary judgment arguing that plaintiff could not meet his burden of proving at

trial that Salassi was in the course and scope of his employment at the time of the

accident, and thus Packard could not be held vicariously liable.3 Packard argues

that plaintiff has failed to prove that Salassi was in the course and scope of his

employment at the time of the accident and further contends that its motion for

summary judgment presents a purely legal issue that the trial court should have

decided in Packard’s favor. Finding merit to Packard’s argument, we gave the

parties an opportunity to provide additional briefing and to participate in oral

argument pursuant to La. C.C.P. art. 966 (H).

DISCUSSION

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.

C.C.P. art. 966 A(3). The burden of proof rests with the mover. La. C.C.P. art. 966

D(1). 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

3
RLI (primary) and AXIS (excess), Packard’s insurers, also filed motions for summary
judgment arguing lack of coverage under the owned-auto exclusion found in RLI’s business auto
policy. Plaintiff filed a motion for partial summary judgment arguing that the insurance policies
at issue list Salassi’s vehicle as a “covered auto” and thus afford coverage for this accident. This
Court resolved the three writ applications arising from the parties’ motions for summary
judgment on coverage separately; they are not at issue in the present writ application, which
addresses only the vicarious liability of Packard.

21-C-68 2

claim, action, or defense. Id. 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. Id.

We review the denial of a motion for summary judgment de novo. Bourgeois

v. Allstate Ins. Co., 15-451 (La. App. 5 Cir. 12/23/15), 182 So.3d 1177, 1181.

Under this standard, we use the same criteria as the trial court in determining

whether summary judgment is appropriate: whether there is a genuine issue of

material fact and whether the mover is entitled to judgment as a matter of

law. Richthofen v. Medina, 14-294 (La. App. 5 Cir. 10/29/14), 164 So.3d 231,

234, writ denied, 14-2514 (La. 3/13/15), 161 So.3d 639.

A fact is “material” when its existence or nonexistence may be essential to

the plaintiff’s cause of action under the applicable theory of recovery. Alexander v.

Parish of St. John the Baptist, 12-173 (La. App. 5 Cir. 10/16/12), 102 So.3d 904,

909, writ denied, 12-2448 (La. 1/11/13), 107 So.3d 617. Facts are material if they

potentially insure or preclude recovery, affect a litigant’s ultimate success, or

determine the outcome of the legal dispute. Id.

The party moving for summary judgment must meet a strict standard of

showing that the facts are clear and that any real doubt as to the existence of a

genuine issue of material fact has been excluded. Richthofen, 164 So.3d at 234. If

the mover meets this burden, the burden shifts to the non-mover to present

evidence demonstrating that material issues of fact remain. Id. “Once the motion

for summary judgment has been properly supported by the moving party, the

failure of the nonmoving party [who has the burden of proof at trial] to produce

evidence of a material factual dispute mandates the granting of the motion.”

Portillo v. Progressive Paloverde Ins. Co., 13-815 (La. App. 5 Cir. 3/26/14), 138

So.3d 696, 698.

21-C-68 3

For an employer to be held vicariously liable for the actions of an employee

under La. Civ. Code art. 2320, the plaintiff must show that (1) an employer-

employee relationship existed between the tortfeasor and the employer, and (2) the

negligent act of the tortfeasor was committed within the course and scope of his

employment with the employer. Hull v. Jefferson Parish Hosp. Dist. No. 1, 16-273

(La. App. 5 Cir. 4/26/17), 220 So.3d 838, 844. Here, there is no question that an

employment relationship existed; instead, the issue is whether Salassi was working

on behalf of Packard at the time of the accident.

An employee’s conduct is within the course and scope of his employment

only if “the conduct is of the kind 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.” Migliore v. Gill, 11-407 (La. App. 5 Cir.

12/13/11), 81 So.3d 900, 903, writ denied, 12-0094 (La. 3/9/12), 84 So.3d 555

(quoting Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d 224, 226-27).

The conduct must be “so closely connected in time, place, and causation to

employment duties as to be regarded as a risk of harm fairly attributable to the

employer’s business, as compared with conduct instituted by purely personal

considerations extraneous to the employer’s interest.” Migliore, 81 So.3d at 903

(quoting Baumeister v. Plunkett, 95-2270 (La. 5/21/96), 673 So.2d 994, 996); see

also Knowles v. State Farm Mut. Auto. Ins. Co., 12-806 (La. App. 5 Cir. 3/27/13),

113 So.3d 417, 419 (“An employer will be 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.”).

Plaintiff argues, and Packard does not dispute, that Salassi was a

member/co-owner of Packard until he died; he never retired, and he was never

terminated. He continued receiving a salary at the time of the accident. Packard

21-C-68 4

argues, however, that these facts fail to establish that Salassi was acting in the

course and scope of his employment at the time of the accident. Moreover, Packard

submitted evidence that Salassi was not acting in the course and scope of

employment at the time of the accident: he was driving his personally owned

vehicle on a Saturday morning with no connection to working for Packard at the

time, and he had not worked for Packard since September 2014, when he was

diagnosed with cancer.

A person’s continued employment with an employer does not establish that

the person is in the “course and scope” of employment at all times. Collins v.

Davis, 16-410 (La. App. 5 Cir. 2/22/17), 214 So.3d 974, 977. For example, this

court has held that a doctor on 24-hour call is not in the course and scope of his

employment merely because he is on call at the time an accident occurred—the

activity did not benefit the employer, the employer had no control over the

employee at the time of the accident, and the employee had not been summoned by

the employer. Migliore, 81 So.3d at 904.

Our de novo review of the record reveals that in responding to Packard’s

motion for summary judgment, plaintiff failed to create a genuine issue of material

fact as to whether Salassi was in the course and scope of his employment at the

time of the accident. The record is devoid of any evidence to show that Salassi was

driving to Lowe’s on the day of the accident for Packard’s benefit, or that his

conduct on that day was “so closely connected in time, place, and causation to

employment duties as to be regarded as a risk of harm fairly attributable to the

employer’s business, as compared with conduct instituted by purely personal

considerations extraneous to the employer’s interest.” Migliore, 81 So.3d at 903.

Salassi had stepped away from his duties at Packard many months before the

accident. Yet, even if he continued working as a dispatcher for Packard after his

cancer diagnosis, plaintiff has produced no evidence to show that Salassi was

21-C-68 5

acting on Packard’s behalf, rather than for merely personal considerations

extraneous to the Packard’s interests, on the Saturday morning that the accident

occurred. That Mr. Salassi remained a member of Packard and continued collecting

a salary until he died establishes an employment relationship but not course and

scope; no employee may be considered to be in the course and scope of his

employment at all times. See Migliore, 81 So.3d at 904. Were that the case, all

employers could be held vicariously liable for their employees’ negligent actions,

no matter how attenuated from their work activities—a result unsupported in law.

In supplemental filings, plaintiff asserts several arguments related to

coverage that are not before the Court at this time. For example, the facts that

Salassi’s personally owned auto was insured through Packard and was registered at

Packard’s business address have no bearing on whether Salassi was in the course

and scope of his employment when the accident occurred.4 We are also

unpersuaded by plaintiff’s argument that Packard would not have reimbursed RLI

for Packard’s deductible portion of the property-damage claims if Mr. Salassi was

not in the course and scope of employment at the time of the accident. Packard’s

compliance with the terms of the commercial policy does not establish that Mr.

Salassi was acting in the course and scope of his employment at the time of the

accident nor create a genuine issue of material fact on vicarious liability.

DECREE

Without any material evidence to support his allegation that Mr. Salassi was

in the course and scope of his employment on the day and at the time of the

accident, plaintiff has failed to show that he will be able to meet his burden of

proving Packard’s vicarious liability at trial. We therefore grant Packard Truck

Lines, LLC’s, writ application, reverse the trial court’s ruling, grant summary

4
Mr. Salassi’s vehicle was listed as a “covered auto” under the commercial auto liability policy
that RLI issued to Packard.

21-C-68 6

judgment in favor of Packard, and dismiss plaintiff Timothy Koehl’s vicarious

liability claims against Packard with prejudice.

WRIT GRANTED,
JUDGMENT REVERSED,
SUMMARY JUDGMENT GRANTED,
VICARIOUS LIABILITY CLAIMS DISMISSED

21-C-68 7

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 12, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-C-68
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
DARLA L. D'AMICO (RESPONDENT) GLENN C. MCGOVERN (RESPONDENT) MATTHEW D. MOGHIS (RELATOR)
MICHAEL S. FUTRELL (RELATOR) WILLIAM PETER CONNICK (RELATOR) STEVEN O. MEDO, JR. (RESPONDENT)
SARAH SMITH (RESPONDENT)

MAILED
LAUREN A. LAM (RESPONDENT) CALLAN JOHNS (RESPONDENT) P. JEREMY LAFLEUR (RESPONDENT)
ATTORNEY AT LAW PEYTON BOWMAN (RESPONDENT) ATTORNEY AT LAW
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SUITE 608 ATTORNEY AT LAW SUITE 2200
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