Jackie Mouton v. We Care Homes, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-215

JACKIE MOUTON

VERSUS

WE CARE HOMES, INC.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. 2002-6260,
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Michael G. Sullivan, and
Elizabeth A. Pickett, Judges.

REVERSED AND REMANDED.

Amos H. Davis
Attorney at Law
7932 Wrenwood Boulevard, Suite B
Baton Rouge, Louisiana 70809
(225) 248-1400
Counsel for Defendant/Appellee:
We Care Homes, Inc.

Walter K. Jamison, III
Marjorie B. Breaux
Daigle, Scofield, Crawford & Jamison, LLC
303 W. Vermilion, Suite 210
Lafayette, Louisiana 70501
(337) 234-7000
Counsel for Plaintiff/Appellant:
Jackie Mouton

SULLIVAN, Judge.

Jackie Mouton, a registered nurse (RN), was injured while performing nursing

services for We Care Homes, Inc. (We Care), a provider of community group homes

for mentally disabled adult males. The trial court dismissed Ms. Mouton’s tort suit

on summary judgment after concluding that her exclusive remedy against We Care

was in workers’ compensation. For the following reasons, we reverse and remand.

Discussion of the Record

On December 4, 2002, Ms. Mouton filed suit, alleging that she was injured on

September 9, 2002, when she was attacked by a patient residing in one of the two

group homes operated by We Care. At the time of the attack, Ms. Mouton was

performing services as a “consulting nurse” pursuant to a contract that she executed

with We Care on May 29, 1995. On May 27, 2003, We Care filed a motion for

summary judgment seeking dismissal of the suit on two grounds: (1) that

Ms. Mouton was an employee injured in the course and scope of her employment;

therefore, her exclusive remedy was in workers’ compensation; and (2) that We Care

was not negligent, as it complied with all state regulations regarding the admission

of the resident at issue, or, in the alternative, that Ms. Mouton was solely at fault

because she failed to inform We Care that this resident required more extensive care

than that offered by the group home. Ms. Mouton opposed the motion, arguing that

genuine issues of material fact existed as to whether or not she was an employee of

We Care and whether or not We Care was negligent failing to remove a resident with

a history of violent behavior from one of its homes.

The contract between Ms. Mouton and We Care listed several duties of the

“consultant,” including (1) preparing, reviewing, and supervising the implementation

of a health care plan for each resident; (2) caring for minor illnesses, injuries, and

emergencies; (3) providing for the consultation and overall management of health

services for each resident; (4) reviewing medications of each resident at least

monthly; (5) assuring that routine, special, and emergency needs of each resident are

met; (6) training other staff members; and (7) providing other services as needed.

The contract provided for a monthly salary of $450.00 ($225.00 per home) and stated

that either party could withdraw from it upon thirty days written notice. It is

undisputed that We Care did not withhold any state or federal taxes from

Ms. Mouton’s salary.

In her deposition, Ms. Mouton testified that she initially went to each of the

two group homes about once a month to do paperwork, but that she was on call

twenty-four hours a day. She explained that her visits to each home lasted about two

hours, during which time she would document each resident’s medical history and

would check their vital signs. In between these visits, she was expected to take all

calls regarding problems with the residents, including medication changes, accidents,

and seizures. Ms. Mouton testified that she did not have any set hours each month,

which arrangement permitted her to work full-time at various other nursing jobs while

fulfilling her contract with We Care. According to Ms. Mouton, she began reducing

her visits to the group homes to approximately once every other month when she

accepted a full-time position as a case manager. She ended her relationship with

We Care in November of 2002 as evidenced by a letter of resignation in which she

gave the company two-weeks notice, as opposed to thirty days as required by their

contract.

In describing the altercation giving rise to this suit, Ms. Mouton testified that

one of the residents “came at me . . . swinging his fists.” As she held onto him with

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both of her arms to prevent him from striking her, she was pushed backward against

a wall and injured her shoulder. Ms. Mouton indicated that she had received many

calls about this resident, who was mildly retarded and hyperactive, and that the staff

had previously reported several incidents of his aggressive behavior, including

striking staff members and throwing objects at them.

Alva Jones, the director of We Care, testified that the company was required

to have an RN available to its residents, as well as a physician, a therapist, and a

psychologist, before it could be licensed to operate community homes in Louisiana.

Ms. Jones explained that Ms. Mouton was expected to be at each home once a month

to complete paperwork and to be available for calls at all times. Ms. Mouton’s duties,

as described by Ms. Jones, included maintaining each resident’s medical records in

compliance with state and federal regulations and responding to minor emergencies

while on call. Ms. Jones testified that she had the authority to fire Ms. Mouton and

that she had previously “let one RN go.” She also testified that Ms. Mouton did not

give We Care thirty-days notice as required by her contract before she left, leaving

the company without an RN for a while.

Tranissa Morrison, a group home manager who witnessed Ms. Mouton’s

altercation with the resident at issue, testified that she saw the resident grab a

telephone from Ms. Mouton and push her. Ms. Morrison also testified that the police

had been called to the home on prior occasions about this resident’s violent behavior

and that a state supervisor had made a comment about his continued presence in the

home. Ms. Morrison personally considered this resident to be a threat to the staff

based upon their complaints about his behavior, and at least one staff member had

said she would quit her job if he remained in the home. As a home manager,

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Ms. Morrison understood that Ms. Mouton’s duties included reviewing the residents’

charts, preparing monthly reviews, updating medications, and attending to the

residents’ illnesses. She testified that she was aware of complaints about Ms. Mouton

hardly coming to the home and not doing her paperwork properly.

After a hearing, the trial court stated that it granted We Care’s motion as to

“statutory employee” status, with the requirement that We Care provide RN services

to its residents weighing heavily in its analysis.1 On appeal, Ms. Mouton argues that

the trial court erred in: (1) finding her to be a “statutory employee” of We Care and

(2) granting the motion when genuine issues of material of fact exist as to her

employee status. Because these assignments are interrelated, we will discuss them

together.

Opinion

Appellate courts review summary judgments de novo under the same criteria

that govern the trial court’s consideration of whether a summary judgment is

appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342

(La.1991). A motion for summary judgment will be granted if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material fact and that the

mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

Summary judgment procedure is favored and shall be construed “to secure the just,

speedy, and inexpensive determination of every action.” La.Code Civ.P. art.

966(A)(2).

1
In its appellate brief, We Care points out that it has never contended that Ms. Mouton was
a “statutory employee” under the provisions of La.R.S. 23:1061; rather, its motion is based upon the
statutory presumption of employment found at La.R.S. 23:1044. We agree and find that a discussion
of La.R.S. 23:1061 is not warranted here.

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Concerning the burden of proof on summary judgment, La.Code Civ.P. art.

966(C)(2) provides:

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’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 that there is an absence of factual support for one
or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.

We Care, as the movant on summary judgment, has the burden at this time of

proving that there exists no genuine issue of material fact as to the two grounds for

its motion: that Ms. Mouton is its employee, as opposed to an independent

contractor, or that We Care is not legally responsible for Ms. Mouton’s injuries. In

discharging the first of these burdens, We Care relies on the presumption of employee

status found at La.R.S. 23:1044, which provides in part: “A person rendering service

for another in any trades, businesses or occupations covered by this Chapter is

presumed to be an employee under this Chapter.” (Emphasis added.) Although this

presumption is usually relied upon by an alleged employee seeking workers’

compensation benefits, it is likewise available to a party in We Care’s position, who

seeks to interpose the immunity of La.R.S. 23:1032 to a tort claim. See Elmore v.

Kelly, 39,800 (La.App. 2 Cir. 7/29/05), __ So.2d __. To rebut this presumption,

Ms. Mouton must either prove (1) that the services she provided were not “pursuant

to any trade, business, or occupation (e.g., construction of one’s private residence)”

or (2) that she was performing services, “but was doing so as an independent

contractor.” Hillman v. Comm-Care, Inc., 01-1140, p. 6 (La. 1/15/02), 805 So.2d

1157, 1161 (quoting 1 Dennis Paul Juge, Louisiana Workers’ Compensation § 7:6

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(2001)). If she is unable to rebut the presumption of employment, her exclusive

remedy is in workers’ compensation.

To determine whether the presumption is rebutted because the services were

not “pursuant to any trade, business, or occupation,” the initial inquiry is whether the

work performed is a “business pursuit” of the alleged employer. Id. In finding that

Ms. Mouton was an employee of We Care, the trial court relied primarily on the

licensing requirement that We Care have RN services available to its clients.

Although this factor weighs heavily in concluding that Ms. Mouton’s services were

performed in We Care’s “trade, business, or occupation,” we find that it is not

determinative as to the second method of rebutting the presumption of employment,

i.e., that the services, though part of We Care’s “business pursuit,” were nonetheless

preformed by an independent contractor.

Louisiana Revised Statutes 23:1021(7) defines “[i]ndependent contractor,” in

part, as

any person who renders service, other than manual labor, for a specified
recompense for a specified result either as a unit or as a whole, under the
control of his principal as to results of his work only, and not as to the
means by which such result is accomplished . . . .

(Emphasis added.)

The supreme court further elaborated on independent contractor status in

Hickman v. Southern Pacific Transport Co., 262 La. 102, 117-18, 262 So.2d 385,

390-91 (La.1972) (emphasis added) (citation omitted) as follows:

It is well understood by the courts of this State that the term
independent contractor connotes a freedom of action and choice with
respect to the undertaking in question and a legal responsibility on the
part of the contractor in case the agreement is not fulfilled in accordance
with its covenants. The relationship presupposes a contract between the
parties, the independent nature of the contractor’s business and the
nonexclusive means the contractor may employ in accomplishing the

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work. Moreover, it should appear that the contract calls for specific
piecework as a unit to be done according to the independent contractor’s
own methods, without being subject to the control and direction, in the
performance of the service, of his employer, except as to the result of the
services to be rendered. It must also appear that a specific price for the
overall undertaking is agreed upon; that its duration is for a specific time
and not subject to termination or discontinuance at the will of either side
without a corresponding liability for its breach.

The law further recognizes that inquiry to determine whether a
relationship is that of independent contractor or that of a mere servant
requires, among other factors the application of the principal test: the
control over the work reserved by the employer. In applying this test it
is not the supervision and control which is actually exercised which is
significant, the most important question is whether, from the nature of
the relationship, the right to do so exists.

....

This right to terminate the relationship without cause, where no
term of employment is prescribed, is characteristic of the master and
servant or employer-employee relationship. The right is at the same
time antagonistic to the independent contractor relationship.2

In contrast to an independent contractor relationship, “[t]he essence of the

[employer-employee] relationship is the right to control.” Hillman, 805 So.2d at 1162

(quoting Alexander v. J. E. Hixson & Sons Funeral Home, 44 So.2d 487, 488

(La.App. 1 Cir. 1950)). The four primary factors evidencing the right to control are:

(1) selection and engagement, (2) payment of wages, (3) power of dismissal, and (4)

power of control. Id. “None of these factors alone is determinative of an

employer/employee relationship. Rather, the totality of the circumstances must be

2
The analysis in Hickman, 262 So.2d 385, arose in the context of whether a truck driver at
fault in an accident was the employee of a transportation company, so as to render the company
liable to the plaintiff under the doctrine of respondeat superior. Finding that the truck driver was
an employee, as opposed to an independent contractor, the supreme court looked at the contract
between the parties, which provided for termination on written notice, without liability for breach
thereof, and at the limited freedom of action the truck driver had in performing his work, including
that the transportation company dictated both the time he reported to the depot each day and the
order of his deliveries. The supreme court also considered that the driver had no other transportation
jobs, even though he owned and maintained his own truck.

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considered.” Harrington v. Hebert, 00-1548, p. 7 (La.App. 3 Cir. 5/23/01), 789 So.2d

649, 653 (citation omitted).

Further, “[t]he distinction between employee and independent contractor status

is a factual determination that must be decided on a case-by-case basis, taking into

consideration the total economic relationship between the parties and the various

factors weighing either in favor of or against an employer-employee relationship.”

Elmore, __ So.2d at __.

Because a determination of “employee” or “independent contractor” status is

decided on the totality of the circumstances, the presence of the same factors in

different cases can nonetheless result in differing outcomes, depending on the weight

those factors are given in each case. For example, in Hillman, 805 So.2d 1157, the

supreme court had to determine whether or not a beautician providing on-site services

to nursing home residents was an employee of the nursing home and, therefore,

entitled to workers’ compensation benefits. Even though the beautician was required

to interview for the position and the nursing home established the days that she

worked and the prices that she charged, the supreme court found the plaintiff to be

an independent contractor. Specifically, the supreme court found lacking “the right

to control the method and means by which the individual performed the work tasks.”

Id. at 1164 (emphasis added). Additionally, because the plaintiff also worked at a

beauty shop on the days she was not at the nursing home, the supreme court reasoned

that her “simultaneous employment elsewhere further supports the independent nature

of her beautician services.” Id. at 1165.

In City of Shreveport v. Kingwood Forest Apartments, 32,370 (La.App. 2 Cir.

10/29/99), 746 So.2d 234, a full-time city police officer who also provided weekend

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security services at an apartment complex sustained work-place accidents at both jobs

that combined to cause his death. The issue before the court was whether the

decedent was also an employee of the apartment complex, so as to render both the

city and the complex liable for survivors’ benefits. At the complex, the decedent was

required to work specific hours each weekend, although he had no supervision and

he could assign a substitute to take his place. He primarily kept a log of guest names

and license plates, but he would also respond to disturbances or crimes as dictated by

his training as a police officer. He could quit or be relieved of his position upon

thirty days notice. In concluding that the decedent was an employee, the court looked

to (1) “the absence of a specific undertaking or piecework to be performed within a

specific time,” (2) the element of control as evidenced “by the specific hours he was

expected to work and by the recordings he was required to log,” and (3) the “at-will”

nature of the relationship (notwithstanding the thirty-day notice requirement) such

that “his failure to act would not constitute a breach of contract with corresponding

liability” but rather “the remedy for [his] nonperformance would be dismissal.” Id.

at 238. The presence of full-time employment elsewhere was apparently not as

significant in City of Shreveport as it was in Hillman.

In Harrington, 789 So.2d 649, with two judges dissenting, this court found that

all four of the control factors weighed in favor of finding a duck hunting guide who

sought workers’ compensation benefits to be the employee of a hunting club owner.

The court specifically noted the owner’s complete control over the selection of guides

at the club, his assignment of all guides to their “sports,” his ability to set the price

for their services, and the guides’ “at-will” tenure with the club.

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In the present case, Ms. Mouton contracted to perform services as a “consulting

nurse” for a group home company that was required to offer its residents the services

of several medical professionals, although those professionals were not involved in

the day-today operation of the homes. Included in Ms. Mouton’s duties, as listed in

the contract, were the requirements that she prepare, review, and supervise the

implementation of a health care plan for each resident and that she care for their

minor illnesses. These services, per We Care’s licensing requirements, could only be

provided by an RN. As recognized in Contract Management Services, Inc. of Texas

v. State, 98-2010, p. 9 (La.App. 1 Cir. 11/5/99), 745 So.2d 194, 199, writ denied, 99-

3466 (La. 2/11/00), 754 So.2d 939, “[n]ursing is clearly a profession” in which its

members obtain admission through education, not by accepting a contract position.

In addition to the professional nature of the services provided by Ms. Mouton,

the record reflects that she had great latitude in performing them. Although she was

required to be at the group homes to complete paperwork, the timing of these visits

was at her sole discretion, to the point where she was able to reduce the number of

visits to accommodate another full-time position. She also used her professional

judgment in responding to patient calls, in that she could decide whether a trip to the

home was warranted or if an ambulance or other medical care was needed. Although

We Care argues that its control over the means of her work is evidenced by the

monthly visits and documentation that she was required to make, there is no evidence

that anyone at We Care supervised these activities. Two other factors of control,

selection and payment, appear neutral in this case, as anyone providing services to

We Care, whether as an employee or an independent contractor, had to meet the

director’s approval and would receive some form of compensation. While the final

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factor, the power of dismissal, may weigh in favor of employee status, in a “totality

of the circumstances” test, we do not find that this alone is sufficient to overcome the

professional nature of the services Ms. Mouton provided and the freedom of means

she was given in accomplishing them. Accordingly, we find that the summary

judgment granted as to employee status must be reversed.

In its motion, We Care also argued that summary judgment was appropriate on

the merits of the case, i.e., there was no genuine issue of material fact that We Care

was not negligent in its handling of this resident’s admission or, alternatively, that

Ms. Mouton was solely at fault for not informing We Care of the resident’s violent

propensities. The trial court did not reach this issue, but indicated at the hearing that

there appears to be genuine issues of material fact precluding summary judgment on

this question. We agree with the trial court’s assessment. We Care has not identified

the criteria for admission or the process that it followed regarding this resident’s

admission, and the record contains many references to its staff members’ knowledge

of this resident’s behavior. We Care has clearly failed to meet its burden as the

mover on summary judgment as to this issue.

Decree

For the above reasons, the judgment of the trial court is reversed and the case

is remanded for proceedings consistent with this opinion. Costs of this appeal are

assessed to defendant-appellee, We Care Homes, Inc.

REVERSED AND REMANDED.

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