Nicholas J. Quatroy Versus Andrew Michael Thornton, Perrone & Sons, L.L.C. and Allstate Property and Casualty Insurance Company

NICHOLAS J. QUATROY NO. 21-CA-732

VERSUS FIFTH CIRCUIT

ANDREW MICHAEL THORNTON, PERRONE COURT OF APPEAL
& SONS, L.L.C. AND ALLSTATE PROPERTY
AND CASUALTY INSURANCE COMPANY STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 793-735, DIVISION "O"
HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

September 28, 2022

SUSAN M. CHEHARDY
CHIEF JUDGE

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

AFFIRMED
SMC
JGG

DISSENTS WITH REASONS
FHW

COUNSEL FOR PLAINTIFF/APPELLANT,
NICHOLAS J. QUATROY
Thomas E. Loehn

COUNSEL FOR DEFENDANT/APPELLEE,
PERRONE & SONS, L.L.C.
Matthew J. Hamilton

CHEHARDY, C.J.

This appeal arises from an automobile accident in which the plaintiff,

Nicholas Quatroy, contends that the defendant, Michael Andrew Thornton, was in

the course and scope of his employment at the time of the accident and therefore

Thornton’s employer, Perrone & Sons, LLC, may be held vicariously liable for

plaintiff’s damages. For the reasons that follow, we affirm the trial court’s ruling

granting Perrone’s motion for summary judgment and dismissing with prejudice

plaintiff’s vicarious liability claims against it.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On February 1, 2019 at approximately 8:45 a.m., plaintiff Quatroy was

involved in an automobile accident with defendant Thornton when Thornton was

on his way to a company sales meeting at his employer’s warehouse in Metairie.

Law enforcement issued a ticket to Thornton for disregarding a stop sign. Thornton

paid the ticket and has acknowledged his responsibility for causing the accident.

The underlying facts regarding Thornton’s employment responsibilities are

essentially undisputed. Thornton works primarily from his house as an outside

sales representative, working on commission only. He interacts with his customers

via phone calls, texts, and emails approximately 95% of the time and sees his

customers in person only about 5% of the time. He is not required to “clock in” for

work. Thornton has a sales manager but he does not have to notify anyone if he

visits a customer. On the morning of the accident, he left his home to drive to the

Perrone warehouse approximately five minutes away to attend the sales meeting,

which usually occurs on the first Friday of every month and is held at the Perrone

warehouse about 70% of the time. The sales manager encouraged all salespersons

to attend, but Thornton explained that he was not reprimanded for failing to attend.

In his six-and-a-half years with the company, Thornton stated that he may have

missed five or six meetings, without any adverse consequences. In answers to

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interrogatories, Perrone indicated that all of the sales staff, including Thornton, is

required to attend the monthly sales meeting. Thornton explained that some of his

co-workers saw the accident when they were on their way to the meeting that

morning.

Perrone does not provide a company vehicle for Thornton; Thornton uses his

personal vehicle when needed for work-related travel. Perrone does not reimburse

Thornton for mileage but provides a gas credit card to use when he is visiting

customers. Perrone’s records show that Thornton last used the gas card seven days

before the accident at issue.

On the morning of the accident, Thornton called his boss before leaving his

house to let his boss know that he was on his way, and to ask whether he should

bring donuts to the meeting. His boss indicated that it was not necessary to bring

donuts. Thornton then traveled to the Perrone warehouse in his own truck, making

no stops and without talking on the phone. The day before the accident, Thornton

had placed a magnetic Perrone & Sons sign on his truck door to make a delivery to

a customer. The magnet remained on his truck at the time of the accident, because

Thornton had forgotten to remove it after the previous day’s delivery.

Plaintiff filed suit against Thornton, Thornton’s personal auto liability

insurer, and Thornton’s employer, Perrone & Sons, L.L.C. Plaintiff settled his

claim against Thornton and Thornton’s personal auto insurer but reserved his right

to pursue his vicarious liability claims against Perrone.

Perrone moved for summary judgment arguing that Thornton was not in the

course and scope of employment at the time of the accident, thus, it could not be

held vicariously liability as a matter of law. Plaintiff opposed Perrone’s motion and

filed his own motion for summary judgment, arguing that Perrone should be held

vicariously liable. Safe Light Group, Inc., plaintiff’s employer who paid worker’s

compensation benefits to plaintiff as a result of the accident, also opposed

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Perrone’s motion for summary judgment. The trial court granted Perrone’s motion

and dismissed plaintiff’s claims against Perrone with prejudice. Plaintiff now

appeals that ruling.

LAW AND ANALYSIS

Appellate courts review a judgment granting or denying a motion for

summary judgment de novo. Robinson v. Otis Condominium Ass’n, Inc., 20-359

(La. App. 5 Cir. 2/3/21), 315 So.3d 356, 361, writ denied, 21-343 (La. 4/27/21),

314 So.3d 837. Under this standard, we use the same criteria as the trial court in

determining if 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. Id.

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

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.

In general, summary judgment is appropriate when all the relevant facts are

marshaled before the court, the facts are undisputed, and the only issue is the

ultimate conclusion to be drawn from the applicable law. Hogg v. Chevron USA,

Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 999 (citing Smith v. Our Lady of the Lake

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Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 752). As such, determining

whether Thornton was in the course and scope of his employment based on the

undisputed facts is an issue of law appropriate for summary judgment.

An employer is answerable for the damage occasioned by his servant in the

exercise of the functions in which the servant is employed. La. C.C. art. 2320. For

an employer to be held vicariously liable for the actions of an employee under La.

C.C. 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. Koehl v. RLI Ins. Co., 21-68 (La. App. 5 Cir. 5/12/21), 325 So.3d 1110,

1113 (citing Hull v. Jefferson Parish Hosp. Dist. No. 1, 16-273 (La. App. 5 Cir.

4/26/17), 220 So.3d 838, 844). There is no dispute that an employment relationship

existed; instead, the issue is whether Thornton was working for Perrone at the time

of the accident.

An employee’s conduct falls with the course and scope of his employment if

the conduct is the kind that he is employed to perform. Orgeron v. McDonald, 93-

1353 (La. 7/5/94), 639 So.2d 224, 226. Stated differently, an employer is

responsible for the negligent acts of its employee when the conduct is so closely

connected in time, place, and causation to his employment duties that it constitutes

a risk of harm attributable to the employer’s business. Koehl, 325 So.3d at 1114.

Because an employee usually does not begin work until he reaches his

employer’s premises, an employee traveling to or from work generally is not in the

course and scope of employment. White v. Canonge, 01-1227 (La. App. 5 Cir.

3/26/02), 811 So.2d 1286, 1289. See also Orgeron, 639 So.2d at 227; Knowles v.

State Farm Mut. Auto. Ins. Co., 12-806 (La. App. 5 Cir. 3/27/13), 113 So.3d 417,

419 (finding that unless an employee has a duty to perform a specific task for his

employer when traveling to the workplace, the employee’s commute is generally

21-CA-732 4

not in the course and scope of his employment). There are three exceptions to the

general exclusion regarding commuting to and from work, however: an employee

may be found to be in the course and scope of employment if (i) the employer

provides the transportation, (ii) the employer provides wages or expenses for the

time the employee spends traveling, or (iii) the operation of the vehicle is

incidental to or in performance of the employee’s responsibility. Id.; see also

Winzer v. Richards, 50,330 (La. App. 2 Cir. 1/13/16), 185 So.3d 876, 881.

Perrone states that Thornton was not responding to a work call, nor

obtaining supplies, nor performing any job duty benefitting Perrone when the

accident occurred. Moreover, even though Perrone provides a gas card to Thornton

to cover the cost of fuel when visiting customers, Perrone did not reimburse

Thornton for travel time or other expenses related to the maintenance of

Thornton’s personal vehicle. Finally, Perrone did not control Thornton’s

movement to and from work. Because Perrone lacked control of Thornton during

his travel to the warehouse for the monthly sales meeting, Perrone avers that

Thornton was not in the course and scope of employment at the time of the

accident.

In opposition, plaintiff relies on the special-mission exception to the “going

and coming rule” of Orgeron, as discussed in McLin v. Industrial Specialty

Contractors, Inc., 02-1539 (La. 7/02/03), 851 So.2d 1135, and Johnson v. Transit

Mgmt. of Southeast La., Inc., 17-793 (La. App. 4 Cir. 2/28/18), 239 So.3d 973,

985. The special-mission exception states that when an employee who has

identifiable time and space limits on his employment makes an off-premises

journey, which would normally not be covered by the going-and-coming rule, the

journey is brought within the course and scope of employment by the fact that the

trouble and time of making the journey, or special inconvenience, hazard, or

urgency of making it in the particular circumstances, is itself sufficiently

21-CA-732 5

substantial to be viewed as an integral part of the service itself. Johnson, 239 So.3d

at 985-86. According to plaintiff, because attendance at the meeting was

mandatory, and the only time Thornton was required to travel to the Perrone

warehouse was when he had to attend the sales meeting or to retrieve supplies for

customers, he was on a job-related mission to attend a “special meeting” for his

employer. He was not merely traveling to or from work, because 95% of his work

is done from his home. Plaintiff contends that in this circumstance Perrone

“controlled” Thornton pursuant to La. C.C. art. 2320 by taking him away from his

regular work place for the mandatory special meeting. Additionally, Perrone’s

magnetic sign was attached to Thornton’s vehicle, and Thornton used gas supplied

by Perrone’s gas card. As such, plaintiff contends that Thornton was in the course

and scope of his employment at the time of the accident.

In support, plaintiff relies on St. Paul Fire & Marine Ins. Co. v. Roberts, 331

So.2d 529, 538 (La. App. 1st Cir. 1976). There, the court of appeal determined that

Roberts, an employee returning to his home in Ponchatoula on a Sunday after

delivering oil to his general foreman in Denham Springs, was in the course and

scope of employment because he was performing a “specific errand” for his

employer.

Plaintiff also points to McLin v. Industrial Specialty Contractors, Inc., 02-

1539 (La. 7/02/03), 851 So.2d 1135, a worker’s compensation case.1 There, the

plaintiff attended a safety meeting at another location after normal working hours

and was injured in an auto accident on his way home. The worker’s compensation

hearing officer determined that the employee was on a special mission for his

1
In Johnson, the Fourth Circuit Court of Appeal discussed the application of precedent from
worker’s compensation cases that have evaluated the going-and-coming rule to vicarious liability
tort cases, noting that the application of the rule “might take on different meanings under each
regime.” The Court found that the worker’s compensation jurisprudence was instructive rather
than dispositive when applied to vicarious liability cases, but ultimately determined that under
the circumstances in that case, the result would be the same under either regime. 239 So.3d at
980 n.6.

21-CA-732 6

employer, but the hearing officer did not extend that special mission to include the

employee’s trip home. The Supreme Court agreed that McLin was on a special

mission and explained that “the narrow issue to be decided is whether the fact that

McLin’s journey home from the safety meeting overlapped with his daily route

from [work] prevents the application of the special mission exception,” ultimately

finding that it did not. The Court held that when an employee engages in a special

mission, any injury that occurs en route from the employee’s home to the location

of the mission, or from the location of the mission to the employee’s home, is

considered to be within the course of employment. Id. at 1138.

We disagree with plaintiff’s characterization of Thornton’s attendance at the

monthly sales meeting as a “special mission” or “special errand” for his employer

and find McLin and Roberts distinguishable. “For a mission to qualify as a special

mission and thus be considered as employment-related rather than personal, an

employee is deemed to be in the course of employment when he is engaged in the

direct performance of duties assigned (i.e., requested, directed, instructed or

required) by his employer.” Ruiz v. City of New Orleans, 12-405 (La. App. 5 Cir.

1/16/13), 109 So.3d 52, 56; see also Brightbill v. Circuit Grand Bayou, L.L.C., 21-

578 (La. App. 5 Cir. 5/11/22), 342 So.3d 127, 138; Biscamp v. Sysco E. Texas,

46,182 (La. App. 2 Cir. 4/13/11), 63 So.3d 1097, 1100.

In our view, the fact that the sales meeting was a long-standing monthly

occurrence suggests that the meeting was not “special” but rather an ordinary part

of Thornton’s job that usually occurred on the first Friday of every month.

“Special” is defined as “distinctive or unique, exceptional, or unusual.” See

WEBSTER’S NEW WORLD DICTIONARY AND THESAURUS, 611 (2d Ed.). By

definition, then, “special” is different from “normal.” Without more evidence to

establish the sales meeting as a “special mission,” we cannot say that Thornton’s

early morning travel to his employer’s regular place of business for a regularly

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scheduled meeting falls within the special-mission exception to the going-and-

coming rule.

The Johnson case to which plaintiff refers supports our conclusion. In

Johnson, the Court of Appeal determined that the nurse anesthetist who was called

to work early for an emergency, and who was involved in an auto accident with a

bus while on the way to work that day, was not on a special mission for the

employer. Johnson considered three principal variables for determining whether an

employee is traveling on a special mission: (i) the relative regularity or usualness

of the particular going-and-coming trip; (ii) the relative onerousness of the trip

compared with the service to be performed at the end of the trip; and (iii) the

suddenness of the call. Johnson, 239 So.3d at 985. The nurse testified that he made

the same trip five days a week. The court of appeal found that when the trip is

“relatively regular, whether every day, … or at frequent intervals, … the case

begins with a strong presumption that the employee’s going and coming trip is

expected to be no different from that of any other employee with reasonably

regular hours and place of work.” Id. The Johnson court stated: “Virtually all

special mission exception cases ‘involve an element of unusualness in the trip: in

terms of time, destination (job site), or duties to be performed.’ ” Id. at 986 (citing

David Polin, Workers’ Compensation: Special Mission Exception to Going-and-

Coming Rule, 32 AM.JUR. PROOF OF FACTS 2d 199, 206 (1982)). At least one of

these three factors – unusual time, unusual destination (place of work), and unusual

work – are present in special mission cases. Id. at 987.

Notwithstanding the fact that Thornton performed 95% of his work for

Perrone from his home, his travel to the monthly sales meeting at the Perrone

warehouse—a place he also visited when he needed to obtain particular supplies

for customers—was a normal part of his job duties. He had attended the same

meeting held at the same time every month, often at the Perrone warehouse, for

21-CA-732 8

six-and-a-half years. Other salespersons traveled to the same event on the morning

of the accident. In contrast to McLin and Roberts, Thornton was not on a special

mission or “specific errand” for Perrone. We note that the special-mission

exception might have applied here if the sales manager had asked Thornton to pick

up donuts on his way to the warehouse and Thornton had performed this errand on

his employer’s behalf, but those are not the facts of the case before us.

Additionally, there is no evidence that Thornton’s job responsibilities

already had begun for the day, as Thornton was not on the phone with customers or

engaged in any other work on his way to the meeting. And the other exceptions to

the general rule that an employee is not in the course and scope of employment

when commuting to work also do not apply. See Knowles, 113 So.3d at 419. First,

Perrone did not provide Thornton’s transportation. Second, although Perrone

provided Thornton with a gas card for visiting customers, Perrone was not visiting

a customer when he traveled to the warehouse for a sales meeting, and Perrone did

not reimburse Thornton for his time traveling to that meeting. Third, the operation

of the vehicle was not incidental to or in performance of the employee’s

responsibility, and his conduct at the time of the accident was not so closely

connected in time, place, and causation to his employment duties that it constituted

a risk of harm attributable to the employer’s business. See Koehl, 325 So.3d at

1114. On the facts before us, we find the going-and-coming exclusion applies.

Thornton was not in the course and scope of his employment at the time of the

accident.

CONCLUSION

We find no basis for applying the special-mission exception to the going-

and-coming exclusion that is applicable to course-and-scope determinations.

Because the trial court correctly determined that Thornton was not in the course

and scope of his employment with Perrone at the time of the accident, we affirm

21-CA-732 9

the trial court’s ruling granting summary judgment in favor of Perrone and

dismissing with prejudice Quatroy’s vicarious liability claims against it.

AFFIRMED

21-CA-732 10

NICHOLAS J. QUATROY NO. 21-CA-732

VERSUS FIFTH CIRCUIT

ANDREW MICHAEL THORNTON, COURT OF APPEAL
PERRONE & SONS, L.L.C. AND
ALLSTATE PROPERTY AND STATE OF LOUISIANA
CASUALTY INSURANCE COMPANY

J. WICKER, DISSENTS WITH REASONS

The majority finds that this case falls under an exception to vicarious

liability under the “coming and going rule”, the principle that an employee who

is traveling from home to work or returning from work to home is generally not

within the course and scope of his employment. However, I believe this finding

requires a fact determination not suited for summary judgment purposes.1

The commuting exception for course and scope was laid out in Orgeron

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

where the Louisiana Supreme Court found “[b]ecause an employee usually does

not begin work until he reaches his employer’s premises, his going to and

coming from work is generally considered outside the course of his employment

unless he has a duty to perform en route.” The Court, however, stated that there

are “shades of gray” in the application of the “coming and going rule” in the

situation of the employee who does not work on the employer’s premises, have a

fixed place of work, or is sent to different work locations: “when 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. .

1
The issue of whether or not Thornton was in the course and scope of his employment was raised in both
defendants’ motion for summary judgment and plaintiff’s motion for partial summary judgment. The
judgment in this case does not reflect a ruling on plaintiff’s motion for partial summary judgment,
presumably a denial as the trial court found in favor of the defendants’ motion for summary judgment
arguing that Thornton was not in the course and scope.

21-CA-732 1

. .[h]owever, when an employee is instructed to report to different work sites

which change periodically, without first reporting to a check in place, there are

more variations in the determination of course and scope of employment.” Id. at

227.

The applicability of this rule to the present case implicates several of these

factors and variations, as Thornton does not primarily work on the employer’s

premises and is sent to different locations as part of his duties as a salesman. To

characterize Thornton’s action of driving to his employer’s warehouse for a sales

meeting as “going to work” requires a factual determination of whether

Thornton, as a work-from-home employee, was commuting to the office,

traveling between two work locations, or on a special errand to serve the

employer’s purpose. Furthermore, the basis for this rule, that “the employee

usually does not begin work until he reaches his employer’s premises,” does not

apply to Thornton who testified at his deposition that he requires only his phone

and laptop to work his sales position.

Even if Thornton was considered to be “commuting,” exceptions have

been held to exist when an employer pays travel expenses, if the trip is

employment-connected, the employer had reason to expect it would be

performed, or the employee is to be compensated. Pierce v. Ellis, 519 So.2d

251, 253 (La. App. 5 Cir. 1988).

Questions of material fact are raised as to whether Thornton’s home, as

his primary work site, is where he checks in for work each day, and whether the

warehouse where the meeting was held is a different work site. The defendants

claim that Thornton was commuting from his home to the warehouse as an

uncontested fact, but it was not sufficiently established that the warehouse would

be considered his office. Evidence was presented that Thornton’s home was his

office. In his deposition, he testified that he goes to the warehouse sometimes

21-CA-732 2

three to four times a week, some weeks not at all. The defendants did not

introduce any evidence of company policies relating to where Thornton is

considered to work by Perronne & Sons.

To find that Thornton was “going to work” would require this court to

find that an employer’s office is an employee’s office. This determination

should not be made lightly as more employers are allowing employees to work

from home following the pandemic without clear policies on where the

employee’s “office” is located.

Additional issues of material fact were raised regarding whether Thornton

was compensated for any expenses for his use of his private vehicle by the

provision of a gas credit card or whether Perronne & Sons took an interest in

Thornton’s transportation sufficient to find that his commute was within the

course and scope of his employment.

The evidence presented at summary judgment showed conflict over whether

Thornton’s attendance at the meeting was compulsory, whether as a

commission-based employee he was paid for attending the meeting, or whether

the employer-provided gas card should be used to cover the trip to the

warehouse. Therefore, in my opinion a finding of summary judgment in the

defendants’ favor on the basis of the “coming and going” rule is not be

appropriate, as the facts of this case do not clearly fall under its application, and

would require a determination by the ultimate fact finder.

If the exception for commuting is found to not apply, then a finding of

course and scope would require the trier of fact to determine whether the

employee’s tortious 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.” Orgeron, 639

So.2d at 226-27. Other courts have found summary judgment appropriate where

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there are no contested facts relating to: 1) the employer’s payment of wages to

the employee; 2) the employer’s power of control; 3) the employee’s duty to

perform the particular act; 4) the time, place, and purpose of the act in relation to

service of the employer; 5) the relationship between the act and the employer’s

business; 6) what benefits the employer received from the employee’s act; 7) the

employee’s motivation in performing the act; and 8) the employer’s reasonable

expectation that the employee would perform the act. Id. at 224; See Woolard v.

Atkinson, 43,322 (La. App. 2 Cir. 7/16/08), 988 So.2d 836, 840; Thibodeaux v.

Geico Cas. Co., 17-853 (La. App. 3 Cir. 6/13/18), 249 So.3d 114, writ denied

(La. 10/29/18).

Upon review of the record, I find that the determination of whether

Thornton was within the course and scope of his employment at the time of the

accident involves genuine issues of material fact as to many of these factors,

which make summary judgment inappropriate at this time in this matter.

21-CA-732 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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21-CA-732
E-NOTIFIED
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