Kerry Bucklin v. James Stewart

Judgment rendered September 28, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,487-CW
No. 54,517-CW
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

KERRY BUCKLIN Respondent

versus

JAMES STEWART, ET AL Applicant

*****

On Application for Writs from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court No. 78698

Honorable Allen Parker Self, Jr., Judge

*****

WIENER, WEISS & MADISON, APC Counsel for 1st
By: Frank H. Spruiell, Jr. Applicant,
Reid A. Jones Progressive Security
Insurance Company

KITCHENS LAW FIRM Counsel for 2nd
By: Graydon Kelly Kitchens, III Applicant,
Special Assistant Attorney General State of Louisiana,
Department of Wildlife
and Fisheries

THE SMITH LAW OFFICE, LLC Counsel for Respondent,
By: Eskridge E. Smith, Jr. Kerry Bucklin
Linda L. Smith

WILLIAM RICK WARREN, APLC
By: William R. “Rick” Warren

SEABAUGH & SEPULVADO, LLC Counsel for Respondent,
By: Alan T. Seabaugh Louisiana Farm Bureau
Michael C. Melerine Mutual Insurance
Company

PETTIETTE, ARMAND, DUNKELMAN Counsel for Respondent,
WOODLEY, BYRD & CROMWELL, LLP James Stewart
By: Stephan M. Cooper
Chelsey T. Colontonio

*****

Before MOORE, STONE, and MARCOTTE, JJ.

STONE, J.

FACTS AND PROCEDURAL HISTORY

This consolidated writ application arises from a personal injury action

in the Twenty-Sixth Judicial District Court, the Honorable Allen Parker Self,

Jr., presiding. Kerry Bucklin (the “plaintiff”) suffered bodily injuries as a

result of an incident wherein he had climbed a tree while assisting in

removing it from the yard of the defendant, James Stewart (“Stewart”), and

Stewart pulled down the tree with his work truck while the plaintiff was still

in the tree.1 The plaintiff sued: (1) Stewart; (2) Stewart’s homeowner’s

liability insurer, Louisiana Farm Bureau Insurance Company; (3) Stewart’s

employer, the Louisiana Department of Wildlife and Fisheries (“LDWF”);

and (4) Stewart’s automobile liability insurer, Progressive Insurance

Company (“Progressive”). Progressive and LDWF filed motions for

summary judgment, and the trial court denied both. These defendants

sought supervisory review, and we granted writs to docket and consolidated

them for resolution.

DISCUSSION

For the reasons stated herein, we reverse the trial court’s judgment.

This section of the opinion is organized as follows: (1) discussion of

the general law of motions for summary judgment; (2) facts, law, and

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Stewart hired Mark Patrick (“Patrick”) to cut down a large tree near Stewart’s
house. Patrick hired the plaintiff to assist in the operation. Stewart and Patrick became
concerned about the possibility of the tree falling in the direction of Stewart’s house.
Stewart and Patrick tied one end of a rope to the branches of the tree and the other end to
the LDWF truck. Stewart put the truck in gear to move the tree away from his house, but
after two failed attempts to topple the tree, Patrick instructed the plaintiff to climb the
tree and cut limbs off the tree. Stewart then pulled the tree to the ground with plaintiff
still in it.

analysis particular to Progressive’s appeal; and (3) facts, law, and analysis

particular to the state’s appeal.

Motion for summary judgment

After an opportunity for adequate discovery, 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 only documents that may be filed in support of or in opposition to the

motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and

admissions. La. C.C.P. art. 966(A)(4). Furthermore, the court may consider

only those documents filed in support of or in opposition to the motion for

summary judgment and shall consider any documents to which no objection

is made. La. C.C.P. art. 966(D)(2).

An appellate court reviews a trial court’s granting of summary

judgment de novo under the same criteria that govern the trial court’s

decision on the motion. McDonald v. PNK (Bossier City), LLC, 53,561 (La.

App. 2 Cir. 9/23/20), 304 So. 3d 143, writ denied, 20-01416 (La. 2/9/21),

310 So. 3d 179.

Progressive’s appeal

In its assignments of error, Progressive asserts that its motion for

summary judgment should have been granted because: (1) there is an

applicable exclusion which precludes coverage; and (2) the other insurance

clause does not extend coverage to the plaintiff’s claim. Thus, both of

Progressive’s assignments of error require this court to interpret the insurance

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policy.2 Below, we interpret and apply the two relevant policy provisions

separately.

The “regular use exclusion” – relevant policy provisions; analysis.

The declarations page (Progressive’s exhibit B) lists vehicles covered by the

policy. The LDWF truck is not on that list. The declarations page does,

however, reflect that Stewart is a named insured.

Progressive’s “regular use” exclusion states, in pertinent part, that

there is no coverage for:

bodily injury arising out of the…use of any
vehicle…furnished or available for your regular use, other
than a covered auto for which this coverage has been
purchased, a rental auto or a temporary substitute auto.
(Emphasis added).

In relevant part, the policy defines “covered auto” as:
a. any auto or trailer shown on the declarations page for
the coverages applicable to that auto…
b. any additional auto;
c. any replacement auto…
A motor vehicle cannot qualify as an “additional auto” unless, among other

things, it is owned by insured. A “replacement auto” is an auto that

permanently replaces an auto shown on the declarations page.

The policy defines “temporary substitute auto” as:

2
An insurance policy is a contract between the insured and the insurer and has the
effect of law between them. Gorman v. City of Opelousas, 13-1734 (La. 7/1/14), 148 So.
3d 888. The role of the judiciary in interpreting an insurance contract is to ascertain the
common intent of the insured and insurer as reflected by the words in the policy. Id.
An insurance policy should be construed using the general rules of interpretation of
contracts set forth in the Louisiana Civil Code. Green ex rel. Peterson v. Johnson, 14-
0292 (La. 10/15/14), 149 So. 3d 766. The interpretation of an insurance contract is
usually a legal question that can be properly resolved by means of a motion for
summary judgment. Id.; Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So. 3d 995; Lewis v.
GEICO Casualty Co., 51,864 (La. App. 2 Cir. 4/27/18), 246 So. 3d 815, writ denied, 18-
1024 (La. 10/8/18), 253 So. 3d 796. However, summary judgment declaring a lack of
coverage under an insurance policy may not be rendered unless there is no reasonable
interpretation of the policy, when applied to the undisputed material facts shown by the
evidence supporting the motion, under which coverage could be afforded. Elliott v.
Continental Cas. Co., 06-1505 (La. 2/22/07), 949 So. 2d 1247.
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[A]n auto, not owned or leased by you, which replaces a
covered auto for 30 days or less. It must be with the
consent of the owner. The covered auto that is being
replaced has to be temporarily out of use due to its
breakdown, repair, servicing, damage or less.

The LDWF truck is furnished to Stewart for his regular use. There is

no dispute that Stewart is employed by LDWF and drives the LDWF truck

to and from work four days per week. Thus, the regular use exclusion is

applicable unless the LDWF truck qualifies as a covered auto, a rental auto,

or a temporary substitute auto. As explained below, it does not so qualify.

The LDWF truck does not qualify as a covered auto because it is

neither listed in the declarations nor is it: (1) an additional auto, which

includes only certain vehicles owned by the insured; nor (2) a replacement

auto, which includes only a vehicle that permanently replaces an auto listed

in the declaration. Furthermore, it is not a rental auto because the vehicle

was not rented.

The LDWF truck does not qualify as temporary substitute auto

because of the unsatisfied requirement that one of the covered vehicles had

to be temporarily out of use due to breakdown, repair, servicing, damage, or

loss. Neither of the Stewarts’ vehicles was temporarily out of use for any of

the reasons listed in the policy.

The “other insurance” clause; related authority; analysis.

Progressive’s “other insurance” provision states:

If there is any other applicable liability insurance or bond,
we will only pay our share of the damages. Our share is the
proportion that our limit of liability bears to the total of all
applicable limits. However, any insurance we provide for a
vehicle or trailer, other than a covered auto, a rental auto,
or a temporary substitute auto, will be excess over any
other collectible insurance, self-insurance, or bond.

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Liability policies commonly contain “other insurance” clauses which

seek to establish how the liability will be shared in the event that there is

other valid and collectible insurance applicable to the same insured.

William S. McKenzie & H. Alston Johnson III, Insurance Law & Practice

(15 La. Civ. L. Treatise), § 7:19 (4th ed., 2012). Other insurance clauses are

applicable only where multiple policies cover the liability of the same

insured. Id.

The trial court committed legal error when it ruled that the “other

insurance” provision in the Progressive policy potentially creates coverage.

The “other insurance” provision does not create or add coverage, and is

inapplicable to this case. Coverage must (otherwise) exist under the

Progressive policy before the “other insurance” clause can apply.

The trial court erred in denying Progressive’s motion for summary

judgment.

The state’s appeal

The state, in its assignments of error, argues that its motion for

summary judgment should have been granted because the plaintiff cannot

establish: (1) that Stewart was in the course and scope of his employment at

the time of the accident; or (2) independent negligence on the part of LDWF

(i.e., negligent hiring, training, supervision, or negligent entrustment). In

support, the LDWF submitted Stewart’s deposition testimony. Stewart

testified that he is a technician for LDWF, is paid by the hour, and works

40 hours a week, specifically Monday through Thursday. He further

testified that it is an unspoken rule that the LDWF work truck is not for

personal use. Stewart stated that the accident occurred on a Saturday, his

off day.
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Vicarious liability. An employer is answerable for the damage

caused by its employee in the exercise of the functions in which the worker

is employed. La. C.C. art. 2320. Thus, an employer’s vicarious liability for

tortious conduct of its employee extends only to the employee’s tortious

conduct that occurs within the course and scope of that employment.

Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So. 2d 244; Woolard v.

Atkinson, 43, 322 (La. App. 2 Cir. 7/16/08), 988 So. 2d 836. The course of

employment refers to time and place; scope refers to the employment-related

risk of injury. Benoit v. Capitol Mfg. Co., 617 So. 2d 477 (La. 1993); Black

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

14-0993 (La. 9/12/14), 148 So. 3d 574.

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

if it is so closely connected in time, place, and causation to the employment

duties of the employee that it constitutes a risk of harm fairly attributable to

the employer’s business. Woolard, supra; Black, supra. The following

non-exclusive list of factors should be considered in determining the

course and scope of employment: (1) the payment of wages by the

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

perform the particular act in question; (4) the time, place, and purpose of the

act in relation to service of the employer; (5) the relationship between the

employee’s act and the employer’s business; (6) the benefits received by the

employer from the act; (7) the employee’s motivation for performing

the act; and (8) the reasonable expectation of the employer that the

employee would perform the act. Orgeron, supra; Ragland v. Hodge, 32, 433

(La. App. 2 Cir. 12/8/99), 748 So.2d 567; Winzer v. Richards, 50,330 (La.

App. 2 Cir. 1/13/16), 185 So. 3d 876; Black, supra.
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In Aycock v. Jenkins Tile Co., 96-2348 (La. App. 1 Cir. 11/7/97), 703

So. 2d 117, writ denied, 97-3056 (La. 2/13/98), 709 So. 2d 753, the court of

appeal determined that an employer was not vicariously liable for an

accident which occurred on a Saturday, when the employee was driving a

company-owned truck without permission on a purely personal errand while

intoxicated. The employee had taken the truck home at the employer’s

request so that the truck would not have to be parked outside a locked gate

over weekend. The court found that the employee was not working or doing

anything to further the employer’s interests, and there was no basis for

imposing liability on the employer.

In this case, Stewart was not within the course and scope of his

employment when the accident occurred. He worked only Monday through

Thursday, and was paid hourly. The accident occurred on a Saturday—a

day when Stewart was not working. The tree removal at Stewart’s house

was not related to his employment duties to LDWF. Stewart was not on

an emergency errand or duty for the state when the accident occurred, and he

was not paid by the state for anything done at his personal residence on that

day. At the time of the accident, LDWF was not exercising any control over

Stewart’s activities. Stewart’s use of the LDWF work truck for the tree

removal was purely personal use. LDWF did not derive or receive any

benefit from removal of a tree at Stewart’s home. Stewart did not have

permission to use his LDWF vehicle as an anchor point for tree cutting.

The act of alleged negligence giving rise to plaintiff’s claim did not occur at

Stewart’s worksite. Accordingly, there is no vicarious liability.

Negligent hiring, training, supervision, or entrustment. Plaintiff

argues that the state is liable even without vicarious liability because it
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was negligent in hiring, supervising, training, or entrusting Stewart with

the truck. This argument also fails. It is quite obvious that one should

not try to pull down a tree while a person is in that tree because there is a

high likelihood of serious injury. Therefore, no reasonable factfinder

could conclude that the LDWF breached any duty of care in hiring

Stewart and giving him a work truck without instructing him to refrain

from using it to pull down a tree with a person in it. Similarly, no

reasonable factfinder could conclude that the absence of such an

instruction caused the accident.

Based upon our de novo review, there is no genuine issue of

material fact and that the movers are entitled to judgment as a matter of

law.

CONCLUSION

For the reasons set forth above, the writs are GRANTED and made

peremptory, the trial court’s denial of the defendants’ motion for summary

judgment is REVERSED, and those motions are hereby GRANTED. The

plaintiff’s claims against Progressive and LDWF are dismissed with

prejudice. All costs of this appeal are assessed to the plaintiff, Kerry

Bucklin.

WRITS GRANTED AND MADE PEREMPTORY, MOTIONS

FOR SUMMARY JUDGMENT IS REVERSED AND GRANTED AND

ALL CLAIMS DISMISSED WITH PREJUDICE.

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