Faith Miller, Individually and on Behalf of Her Minor Child, Jeremy Strahin, Jr. Versus Morteza Shamsnia, Republic Fire and Casualty Insurance Company and Abc Insurance Company C/W Ashleigh Holloway Versus Morteza Shamsnia, Republic Fire and Casualty Insurance Company and Abc Insurance Company

FAITH MILLER, INDIVIDUALLY AND ON NO. 24-CA-100 C/W
BEHALF OF HER MINOR CHILD, JEREMY 24-CA-101
STRAHIN, JR.
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
MORTEZA SHAMSNIA, REPUBLIC FIRE
AND CASUALTY INSURANCE COMPANY STATE OF LOUISIANA
AND ABC INSURANCE COMPANY

C/W

ASHLEIGH HOLLOWAY

VERSUS

MORTEZA SHAMSNIA, REPUBLIC FIRE
AND CASUALTY INSURANCE COMPANY
AND ABC INSURANCE COMPANY

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 756-172 C/W 760-066, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

December 23, 2024

MARC E. JOHNSON
JUDGE

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Scott U. Schlegel

AFFIRMED
MEJ
JGG
SUS

COUNSEL FOR DEFENDANT/APPELLANT,
UNITED EDUCATORS INSURANCE RISK RETENTION GROUP, INC.
George D. Fagan
Karen E. Futch

COUNSEL FOR PLAINTIFF/APPELLEE,
FAITH MILLER, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD,
JEREMY STRAHIN, JR.
Neal J. Favret

COUNSEL FOR PLAINTIFF/APPELLEE,
ASHLEIGH HOLLOWAY
Dean J. Favret
Angela C. Imbornone
Seth H. Schaumburg
Lauren A. Favret

JOHNSON, J.

Defendant/Appellant, United Educators Insurance, a Reciprocal Risk

Retention Group (hereinafter referred to as “United”), appeals the partial summary

judgment in favor of Plaintiffs/Appellees, Faith Miller,1 individually and on behalf

of her minor child, Jeremy Strahin, Jr., and Ashleigh Holloway, on the issue of

vicarious liability and the denial of its summary judgment concerning an

automobile accident rendered in the 24th Judicial District Court, Division “I”.2 For

the following reasons, we affirm the trial court’s partial summary judgment.

FACTS AND PROCEDURAL HISTORY

The relevant facts pertaining to this appeal are as follows:

Plaintiffs filed petitions for damages3 against Dr. Morteza Shamsnia and his

insurer, Republic Fire and Casualty Insurance Company. The petitions alleged

that, on April 19, 2015, Ms. Holloway was traveling northbound on the Lake

Pontchartrain Causeway Bridge (hereinafter referred to as “the Causeway Bridge”)

in her 2005 Hyundai Elantra with Jeremy as a guest passenger. While driving, a

tire on Ms. Holloway’s vehicle had an unexpected blowout, requiring her to travel

slowly in the right lane with the vehicle’s emergency lights engaged. Plaintiffs

further alleged that Dr. Shamsnia was also traveling northbound at an excessively

high rate of speed on the Causeway Bridge in his 2006 GMC Sierra when he failed

to see Ms. Holloway’s vehicle and violently struck the rear of Ms. Holloway’s

vehicle. They asserted that Ms. Holloway’s vehicle sustained substantial damage

and the occupants of her vehicle were severely injured due to Dr. Shamsnia’s acts

of negligence.

The petitions were amended to add Tulane University School of Medicine/

1
In recent pleadings, Faith Miller is now being referred to as Faith Faciane.
2
This is a consolidated matter. Ms. Miller, individually and behalf of Jeremy, filed district court
case number 756-172, Miller v. Shamsnia, et al., and Ms. Holloway filed district court case number 760-
066, Holloway v. Shamsnia, et al.
3
Ms. Miller’s petition was filed on December 10, 2015, and Ms. Holloway’s petition was filed on
April 19, 2016.

24-CA-100 C/W 24-CA-101 1

the Administrators of the Tulane Education Fund (hereinafter referred to as

“Tulane”) and its excess insurance policy insurer, United Educators Insurance Risk

Retention Group, Inc. (hereinafter referred to as “United”), as defendants. The

petitions alleged that Dr. Shamsnia was acting in the course and scope of his

employment with Tulane at the time of the accident. Because Dr. Shamsnia was

an employee of Tulane, Plaintiffs asserted that Tulane and United are legally

responsible for the alleged fault and negligence of Dr. Shamsnia based on the

doctrine of respondeat superior.

On January 27, 2023, United filed a motion for summary judgment, seeking

a judgment declaring that Dr. Shamsnia was not acting within the course and scope

of his employment with Tulane at the time of the accident. In its motion, United

stated that Dr. Shamsnia visited a construction site of Advanced Neurodiagnostic

Center (hereinafter referred to as “ANC”), in Metairie, Louisiana, and, after

visiting the construction site, Dr. Shamsnia drove his 2006 GMC Sierra on the

Causeway Bridge with his destination being Lakeview Hospital4 in Covington,

Louisiana to perform his duties as a physician5 pursuant to Tulane’s third-party

agreement with the hospital. United argued that, pursuant to the going and coming

rule, Plaintiffs cannot meet their burden of proving that Dr. Shamsnia’s alleged

tortious conduct was so closely connected to his employment duties with Tulane

that the risk of harm was fairly attributable to Tulane. It contended that, on the

date of the accident, Dr. Shamsnia was traveling to work in a privately-owned

vehicle, and Tulane did not compensate Dr. Shamsnia for travel expenses or

mileage; Tulane did not instruct, direct, prescribe, or dictate the manner in which

Dr. Shamsnia traveled to Lakeview Hospital to carry out his duties as a physician;

4
The record also refers to Lakeview Hospital as “Lakeview Regional Medical Center.”
5
Dr. Shamsnia was employed with Tulane as a Professor of Clinical Neurology. In coordination
with other Tulane neurologists, Dr. Shamsnia had an on-call duty rotation schedule where he made
personal visits to Lakeview Hospital to consult, examine, visit and treat patients at that facility.

24-CA-100 C/W 24-CA-101 2

and, Dr. Shamsnia was not performing any physician-related or medical activity

associated with his employment and was not advancing any of Tulane’s interests at

the time of the accident. Alternatively, United argued that, if Dr. Shamsnia were

found to be acting within the course and scope of his employment with Tulane,

Plaintiffs cannot prove that Tulane could have prevented Dr. Shamsnia’s alleged

negligence concerning the accident and none of the exceptions to the going and

coming rule were applicable. As such, United asserted that Tulane was not

vicariously liable for Dr. Shamsnia’s alleged negligent actions, and Plaintiffs had

no right of recovery against United.

In opposition to United’s motion for summary judgment, Plaintiffs asserted

United was not entitled to summary judgment because there were remaining issues

of material fact as to whether Dr. Shamsnia was within the course and scope of his

employment with Tulane. They argued that the sole purpose for Dr. Shamsnia’s

travel across the Causeway Bridge the evening of the accident was to comply with

Tulane’s contractual obligations with Lakeview Hospital. They contended Dr.

Shamsnia’s visit to the ANC construction site was within the course and scope of

his employment because Tulane had a contract with ANC, and his visit there

placed his subsequent actions within one of the exceptions to the going and coming

rule. Plaintiffs further contended that Dr. Shamsnia’s drive to Lakeview Hospital

could be seen as a “special mission” for Tulane, and Tulane provided travel

reimbursements for doctors traveling to Lakeview Hospital, constituting another

exception to the going and coming rule.

Plaintiffs filed a motion for summary judgment on the issue of vicarious

liability. In their motion, Plaintiffs reiterated their argument that Dr. Shamsnia was

in the course and scope of his employment at the time of the accident because he

was traveling to a work site other than his usual place of employment at the

direction of Tulane, and Tulane was vicariously liable for Dr. Shamsnia’s

24-CA-100 C/W 24-CA-101 3

negligence. They alleged that two exceptions to the going and coming rule were

applicable because: (1) Tulane offered reimbursement to Dr. Shamsnia for mileage

on his personal vehicle when traveling to Lakeview Hospital, and (2) Dr.

Shamsnia’s use of his personal vehicle in traveling to Lakeview Hospital was

incidental to or in the performance of his responsibility to Tulane.

Tulane6 and United opposed Plaintiffs’ motion for summary judgment,

arguing that Tulane could not be held vicariously liable for Dr. Shamsnia’s alleged

negligent actions because Dr. Shamsnia was not acting within the course and scope

of his employment at the time of the April 19, 2015 accident. They averred Tulane

had no record of Dr. Shamsnia either requesting or actually receiving any mileage

reimbursement from Tulane for any travel in 2015; Dr. Shamsnia had the right to

decide when to visit Lakeview Hospital during his rotation there; Dr. Shamsnia’s

travel to Lakeview Hospital was an ordinary part of his job, not a special mission;

and, Dr. Shamsnia’s act of driving to Lakeview Hospital did not benefit Tulane.

A hearing on the motions for summary judgment was held on November 2,

2023. At the conclusion of the hearing, the trial court denied United’s motion for

summary judgment and granted Plaintiffs’ motion for summary judgment, citing

the remote workplace and the reimbursement exceptions to the going and coming

rule as its bases. The trial court rendered a written judgment to the same effect on

November 27, 2023. The judgment found that Dr. Shamsnia was in the course and

scope of his employment with Tulane while he was operating his vehicle on the

Causeway Bridge on April 19, 2015, and Tulane was vicariously liable under La.

C.C. art. 2320 for the actions of Dr. Shamsnia to the extent he is found to be

negligent or at fault for causing or contributing to the April 19, 2015 accident.7

6
Prior to the filing of the opposition brief, Plaintiffs entered into separate settlement agreements
with Republic Fire and Casualty Insurance Company and Tulane. Dr. Shamsnia and Tulane were
released from the lawsuits; however, Plaintiffs reserved the right to retain them as nominal parties for
fault determinations. At this juncture, United is the only remaining defendant in Plaintiffs’ actions.
7
Pursuant to an August 8, 2024 order from this Court to amend the decretal language of the
November 27, 2023 judgment, the trial court rendered an amended judgment on August 19, 2024.

24-CA-100 C/W 24-CA-101 4

Pursuant to La. C.C.P. art. 1915(B)(1), the trial court expressly found no just

reason for delaying the entry of a partial final judgment regarding the vicarious

liability of Tulane for the alleged negligence of Dr. Shamsnia and designated the

judgment as a partial final judgment.8 The instant appeal followed.

LAW AND ANALYSIS

In its sole assignment of error, United alleges the trial court erred by

granting Plaintiffs’ motion for summary judgment and denying United’s motion

for summary judgment on the issue of Tulane’s alleged vicarious liability for Dr.

Shamsnia’s accident. It argues that Dr. Shamsnia was not acting within the course

and scope of his employment with Tulane when he was involved in the accident,

either as a Professor of Neurology or a Consulting Neurologist. It contends Dr.

Shamsnia was driving his personally owned vehicle to perform routine

neurological consulting services at Lakeview Hospital on the last day of his

weeklong rotation; and while Dr. Shamsnia had to use a vehicle to travel to the

hospital, Tulane did not hire him for driving services or compensate for such

travel.

United further argues that none of the exceptions to the going and coming

rule apply in this instance because: (1) prior to the time of the accident, neither

Tulane nor Lakeview Hospital summoned or ordered Dr. Shamsnia to immediately

travel to the hospital in Covington to work; (2) Dr. Shamsnia’s prefatory stopover

to check on the status of construction at a medical building owned by his wife in

Metairie had nothing to do with his work as a Professor of Clinical Neurology or as

a Neurological Consultant for Tulane; (3) Dr. Shamsnia was not doing any work as

a Neurological Consultant for Tulane at the time the accident occurred; (4) Dr.

Shamsnia did not request or receive any reimbursement from Tulane for his travel

8
After review, we find the trial court properly designated the judgment as a partial final judgment
with no just reason for delay.

24-CA-100 C/W 24-CA-101 5

to or from Lakeview Hospital; and (5) Tulane’s salary or other payments to Dr.

Shamsnia were not intended to and did not compensate him for driving to or from

Lakeview Hospital or any other location where he performed any work for Tulane.

Thus, United asserts that Dr. Shamsnia was outside of the course and scope of his

employment, and Tulane should not be held vicariously liable for Dr. Shamsnia’s

alleged negligence against Plaintiffs.

Plaintiffs argue the trial court properly determined that Tulane could be held

vicariously liable for Dr. Shamsnia’s negligent actions. They maintain the going

and coming rule is inapplicable in this matter because Dr. Shamsnia was not going

to his usual place of work but instead was traveling to a remote location,

Covington, at the time of the accident; and, the sole reason for his trip across the

Causeway Bridge that night was to fulfill Tulane’s contractual obligations to a

third party at the third-party’s premises—Lakeview Hospital. In the alternative,

Plaintiffs aver that, even if the going and coming rule were applicable, Dr.

Shamsnia was in the course and scope of his employment with Tulane at the time

of the accident because: (1) Tulane’s travel policy made reimbursement available

to Dr. Shamsnia for mileage on his personal vehicle, thus making him eligible for

travel reimbursement, and (2) Dr. Shamsnia’s use of his personal vehicle in

traveling to Lakeview Hospital was incidental to or in the performance of his

responsibility to Tulane.

A court shall grant a motion for summary judgment if the motion,

memorandum, and supporting documents show that there is no genuine issue

regarding material facts and that the mover is entitled to judgment as a matter of

law. Gibson v. Jefferson Par. Hosp. Serv. Dist. No. 2, 23-538 (La. App. 5 Cir.

5/29/24), 389 So.3d 977, 980, citing La. C.C.P. art. 966(A)(3). The mover’s

burden on the motion is 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, if

24-CA-100 C/W 24-CA-101 6

the mover does not bear the burden of proof at trial on the issue that is before the

court on the motion for summary judgment. Id., citing La. C.C.P. art. 966(D)(1).

The adverse party then has 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. Appellate courts review summary judgments de

novo, using the same criteria the trial court applies to determine whether summary

judgment is appropriate. Id. The court must decide a motion for summary

judgment referencing the substantive law that applies to the case. Id. In this

matter, the question before us is whether Tulane can be held vicariously liable for

Dr. Shamsnia’s alleged negligent actions on the night of April 19, 2015.

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 employer 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. 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.

Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d 224, 227.

Generally, an employee going to and coming from work 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. This rule, often called “the going and coming rule,” is

premised on the theory that, ordinarily, the employment relationship is suspended

from the time the employee leaves his work to go home until he resumes his work.

McLin v. Indus. Specialty Contractors, Inc., 02-1539 (La. 7/2/03), 851 So.2d 1135,

24-CA-100 C/W 24-CA-101 7

1140, citing Phipps v. Bruno Const., 00-480 (La. App. 3 Cir. 11/2/00), 773 So.2d

826. The going and coming rule is, however, subject to various exceptions,

including situations where an employer has involved himself in the transportation

of the employee as an incident to the employment agreement, either through

furnishing a vehicle or payment of expenses, or where wages are paid for time

spent in traveling. Dean v. Southmark Const., 03-1051 (La. 7/6/04) 879 So.2d 112,

117, citing Scott v. Smith, 714 So.2d 7, 11 (La. App. 2d Cir. 1998). When an

employer pays expenses and the trip in question is employment related, an

employee is in the course and scope of employment while away from his work

place. Michaleski v. W. Preferrred Cas. Co., 472 So.2d 18, 21 (La. 1985); Black v.

Johnson, 48,779 (La. App. 2 Cir. 4/9/14), 137 So.3d 170, 175, writ denied, 14-993

(La. 9/12/14), 148 So.3d 574.

In the matter at bar, there is no dispute that there was an employer-employee

relationship between Tulane and Dr. Shamsnia at the time of the accident. Dr.

Ragan Gankendorff, the Executive Director in the Center for Clinical

Neurosciences at Tulane, verified Dr. Shamsnia’s employment with Tulane, which

included clinical duties, such as examining, visiting, treating, and consulting with

patients at Lakeview Hospital, on a rotating basis. Dr. Shamsnia was on a

weeklong rotation at Lakeview Hospital from April 13, 2015 through April 20,

2015, and he was required to visit the hospital on April 19, 2015 to ensure

continuity of care. In his deposition, Dr. Shamsnia affirmed that the reason for his

travel on the Causeway Bridge on the night of April 19, 2015 was to complete the

duties of his on-call rotation at Lakeview Hospital. Thus, there is no factual

dispute that Dr. Shamsnia was traveling in his personal vehicle to Lakeview

Hospital to fulfill his duties as a Consulting Neurologist on behalf of Tulane.

Because Dr. Shamsnia was traveling to a work location, the employment

relationship between him and Tulane was suspended, pursuant to the general going

24-CA-100 C/W 24-CA-101 8

and coming rule, while he traveled to Lakeview Hospital. See, McLin, supra.

However, we find that an exception to the going and coming rule applies in this

matter.

In her deposition testimony, Dr. Gankendorff stated that the physicians

working under the third-party contract with Lakeview Hospital were compensated

through reimbursement of mileage for use of their personal vehicles. The

physicians would be paid the Internal Revenue Service’s rates for mileage. Thus,

Tulane involved itself in Dr. Shamsnia’s transportation to Lakeview Hospital as an

incident to the employment agreement. It is undisputed that Dr. Shamsnia neither

requested travel reimbursement nor was he paid travel reimbursement for the night

of April 19, 2015. Although Dr. Shamsnia did not request reimbursement for his

mileage, he was eligible to receive compensation from Tulane for his travel to the

hospital on that particular night. Therefore, we find that, under the particular facts

of this case, the exception to the going and coming rule applies because Tulane

offered payment of Dr. Shamsnia’s expenses through travel reimbursement. We

further find that Dr. Shamsnia was acting within the course and scope of his

employment while traveling to Lakeview Hospital on the night the accident

because Tulane had a policy for providing travel reimbursement to physicians

commuting to Lakeview Hospital, and his trip to the hospital was employment

related.9 See, Michaleski, supra. Accordingly, after de novo review, and

considering the unique facts of this case, we find that Plaintiffs are entitled to

summary judgment on the issue of vicarious liability of Tulane for the actions of

Dr. Shamsnia, in the event he is found to be negligent or at fault for causing or

9
Despite Plaintiffs’ assertion that Dr. Shamsnia was on a “special mission” for Tulane on the
night of the accident, we do not find that particular exception to the going and coming rule applicable to
this matter. For a mission to qualify as a special mission and 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. There are no undisputed facts
in the record showing that Dr. Shamsnia was engaged in any driving directives from Tulane at the time of
the accident.

24-CA-100 C/W 24-CA-101 9

contributing to the April 19, 2015 accident.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment that denied

United’s motion for summary judgment and granted Plaintiffs’ motion for

summary judgment on the issue of vicarious liability. United is assessed the costs

of this appeal.

AFFIRMED

24-CA-100 C/W 24-CA-101 10

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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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
DECEMBER 23, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-100
C/W 24-CA-101
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
GEORGE D. FAGAN (APPELLANT) NEAL J. FAVRET (APPELLEE) RENE S. PAYSSE, JR. (APPELLEE)

MAILED
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