Claudia Annette Senac v. State Farm Mutual Auto. Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-320

CLAUDIA ANNETTE SENAC

VERSUS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2006-6207
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Billy Howard
Ezell, Judges.

AFFIRMED.

Matthew D. McConnell
Elmore & McConnell
700 St. John Street, Suite 401
Lafayette, Louisiana 70501
(337) 233-2417
Counsel for Plaintiff/Appellant:
Claudia Annette Senac

Kenny L. Oliver
David O. Way
Oliver & Way
Post Office Box 80655
Lafayette, Louisiana 70598-0655
(337) 235-2112
Counsel for Defendants/Appellees:
Roclan Service & Supply, LLC
Roclan Services, Inc.

Gretchen Heider Mayard
Katherine Paine Martin
Attorneys at Law
Post Office Box 81338
Lafayette, Louisiana 70598-1338
(337) 291-2440
Counsel for Defendants/Appellees:
State Farm Mutual Automobile Insurance Company
Philip R. Smith

SULLIVAN, Judge.

Plaintiff appeals the dismissal of her tort claim against defendant-driver’s

employer. We affirm.

Facts

On December 12, 2005, Philip Smith was involved in an automobile accident

with vehicles driven by Gloria Conques and Claudia Senac. Ms. Senac sued

Ms. Conques, Mr. Smith, and Mr. Smith’s employer, Roclan Services (Roclan), to

recover damages she suffered as a result of the accident. Ms. Senac settled her claims

against Ms. Conques, her insurer, Mr. Smith, and his insurer and dismissed them from

this litigation. Thereafter, Roclan filed a motion for summary judgment, asserting

that it is not vicariously liable for Mr. Smith’s actions because he was not in the

course and scope of his employment when the accident occurred.

Roclan relied on the deposition testimony of Mr. Smith and his supervisor, Kim

Cormier, as support for its motion for summary judgment; that testimony establishes

the following. Mr. Smith was employed by Roclan as a rigger on an offshore

construction crew and had finished a hitch offshore shortly before the accident

occurred. He and the crew with which he worked that hitch had been transported by

Roclan from offshore to its office in Duson. Mr. Smith and other members of the

crew had parked their vehicles at Roclan’s office while they were offshore.

Mr. Smith testified that before he left Roclan’s office, Mr. Cormier asked him for a

ride to his home in Sunset and that he agreed to drive him. After leaving Roclan’s

office in Duson, Mr. Smith drove to a Burger King in Lafayette. The accident

occurred just after he drove out of the Burger King parking lot. After the police

completed their investigation of the accident, Mr. Smith drove Mr. Cormier home.

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Mr. Smith also testified that he and the rest of the crew had completed their

hitch when the accident occurred and that he was not on an errand for anyone.

Additionally, he testified that he always worked on a different crew; he never used

his truck for errands for Roclan; he did not receive reimbursement from Roclan for

mileage or money for fuel, insurance, or maintenance on his vehicle; and he was not

provided a cell phone, beeper, or pager by Roclan.

Mr. Cormier testified that he was an offshore supervisor for Roclan at the time

of the accident and that he was authorized to “run off” employees from a job he was

supervising, but he was not authorized to fire such employees. With regard to the day

of the accident, he testified that after he returned to Roclan’s office he was unable to

contact his wife to have her pick him up, that Mr. Smith offered to drive him home,

and that he accepted the offer. He later admitted, however, that he was not certain if

he asked Mr. Smith for a ride or if Mr. Smith offered him a ride.

Mr. Cormier was asked whether he and Mr. Smith were being compensated on

their way home. He testified that Roclan crew members are guaranteed twelve hours

pay for each day of their hitch, which includes all days they are on the water. He

explained that they are paid twelve hours pay for each day they are on the water,

whether they actually work or not, and that they are also paid twelve hours the day

after the last day they work, if they reach the dock on their return trip inland after

midnight. They are not paid twelve hours pay for the day after the last day of their

hitch, however, if they reach the dock before midnight. Mr. Cormier also testified

that the crew had completed their hitch and their work was over; that at the time of

the accident, he was not doing anything which benefitted Roclan and was not in a

supervisory capacity over Mr. Smith; and that Mr. Smith’s giving him a ride home

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had nothing to do with his work performance. Mr. Cormier explained, as did

Mr. Smith, that he did not receive reimbursement from Roclan for mileage or meals,

and that Roclan did not provide him with a cell phone, beeper, or pager.

After a hearing, the trial court granted summary judgment in favor of Roclan.

Ms. Senac appeals.

Motion for Summary Judgment

Appellate courts review motions for summary judgments de novo to determine

whether any genuine issue of material fact exists and whether the mover is entitled

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

of law.” La.Code Civ.P. art. 966(B).

The initial burden of proof is on the mover to show that no genuine issue of

material fact exists. La.Code Civ.P. art. 966(C)(2). However, if the mover will not

bear the burden of proof at trial on the issue that is presented by the motion for

summary judgment, he is not required “to negate all essential elements” of his

opponent’s claim but need only point out that there is “an absence of factual support

for one or more elements essential” to his opponent’s action. Id. If the opponent

“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.” Id.

Discussion

An employer has vicarious liability for his employee’s tortious conduct if that

conduct occurred “in the exercise of the functions in which [he is] employed.”

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La.Civ.Code art. 2320. In applying Article 2320, courts consider whether the

employee’s tortious conduct was “within the course and scope” of his employment

duties. Orgeron v. McDonald, 93-1353, p. 4 (La. 7/5/94), 639 So.2d 224, 226.

Contrary to workmen’s compensation cases, courts strictly construe this phrase in

cases involving damage claims for personal injuries. White v. Canonge, 01-1227

(La.App. 5 Cir. 3/26/02), 811 So.2d 1286. See also, Seay v. Wilson, 569 So.2d 227

(La.App. 1 Cir. 1990), writ denied sub nom. Johnson v. Newman, 572 So2.d 70

(La.1991); Arledge v. Royal-Globe Ins. Co., 401 So.2d 615 (La.App. 3 Cir. 1981);

Lowe v. Gentilly Dodge, Inc., 342 So.2d 1231 (La.App. 4 Cir. 1977).

As a general rule, if an employee’s 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,” it is considered to be

within the course and scope of his employment. Orgeron, 639 So.2d at 226-27 (citing

W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 70 (5th ed.

1985)). Employees traveling to and from work are usually not in the course and

scope of employment:

Because 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. Moreover, an employee’s place of residence is a
personal decision not directly controlled by the employer, and treating
commuting time as part of the determination of course and scope of
employment would remove manageable boundaries from the
determination.

Id. at 227.

In Orgeron, the supreme court reiterated several factors it had previously

identified in Reed v. House of Decor, Inc., 468 So.2d 1159 (La.1985), which must be

considered when determining whether a tort was committed within the course and

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scope of an employee’s employment. These factors include: 1) the payment of

wages; 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; 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 motivation of the employee for

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

employee would perform the act.

Ms. Senac urges that consideration of these factors mandates a determination

that Mr. Smith was in the course and scope of his employment with Roclan at the time

she was injured and complains that the trial court wrongly performed this assessment

with regard to Mr. Cormier, rather than Mr. Smith as it should have. We have

assessed the Reed/Orgeron factors in light of the general rule that for an employee’s

conduct to be within the course and scope of his employment it must be “of the kind

that he is employed to perform, occur[] substantially within the authorized limits of

time and space, and [be] activated at least in part by a purpose to serve the employer”

and find no error with the trial court’s conclusion. Orgeron, 639 So.2d at 226-27.

Ms. Senac strongly contends that because Mr. Smith and Mr. Cormier were

being paid twelve hours “guaranteed pay” at the time of the accident, this factor

weighs in her favor. Mr. Smith and Mr. Cormier were being paid wages by Roclan

at the time of the accident; however, their job duties were complete at that time and

the wages were not paid for work being performed at that time but because they were

“on the water” after midnight. While both men testified that they might be called to

work at any time, they also testified that their work was complete and that neither of

them was performing a service for Roclan at the time of the accident.

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Another panel of this court recently addressed the “wage” factor in Hargrave

v. Delaughter, 08-1168, p. 7 (La.App. 3 Cir. 3/4/09), 10 So.3d 245, 250, with respect

to an employee who was paid a salary and concluded that “‘wages’ as contemplated

by the supreme court [in Reed, 468 So.2d 1159] refers to piecemeal or hourly wages

rather than salary. In other words, we should find that the employer was

compensating the employee for the task at hand or the actual time spent while

engaged in the activity.” We find the rationale applied in Hargrave applies here

because, although the employees here were not paid salaries, they were paid for a

period of time during which they were not performing work for their employer.

Applying this rationale, we find that this factor does not weigh in favor of a finding

that Mr. Smith was in the course and scope of Roclan’s employment at the time of the

accident because he was not engaged in or being compensated for a specific task.

Ms. Senac also argues that Mr. Smith was compelled to acquiesce with

Mr. Cormier’s request because Mr. Cormier was his supervisor. She relies on

St. Paul Fire & Marine Ins. Co. v. Roberts, 331 So.2d 529 (La.App. 1 Cir. 1976), as

support for her argument. In Roberts, the court held that an employee who delivered

oil, which was required for power saws used in the performance of their employer’s

business, was in the course and scope of his employment notwithstanding that the

delivery was made to his superior’s home on Sunday when neither of the men were

working. The court first considered the facts therein, explaining:

Unquestionably, Beach possessed authority to require Roberts to work
on a weekend or after ordinary working hours. While Roberts might
have refused this particular request or demanded compensation, such
action on his part may have jeopardized his position. The question
posed is whether a servant who responds to his master’s request to
perform a work-related act during off duty hours, especially where the
master may require after hours work of the servant, is acting within the

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scope and during the course of his employment the same as though the
servant had been ordered to perform the task.

Id.at 537 (emphasis added).

Mr. Smith agreed when asked that he was instructed, “Go wherever we tell you

and do what Kim says.” However, nothing indicates that Roclan intended this to be

construed outside the offshore workplace or that Mr. Smith construed it in that

manner, and Mr. Cormier testified that he did not construe it or apply it in that

manner. Additionally, Mr. Cormier did not have the authority to fire Mr. Smith, and

there is no evidence that as an offshore supervisor, he had authority over Mr. Smith

onshore.

Ms. Senac also relies on Jinks v. McClure, 344 So.2d 675 (La.App. 3 Cir.

1977), as support for her position. In Jinks, this court found that a son’s substitution

for his father as courier resulted in his and his father’s employer being vicariously

liable for damages caused by the son’s negligence, although the son had completed

his job duties, because the father’s job duties included the courier duties being

performed by the son and the father was paid a salary and was provided a company

vehicle by the company. Before making this determination, the court observed that

“[t]he question of whether an act is within the scope of an employer’s business must

be considered in the light of the particular circumstances, which indicate whether the

act promotes the employer’s business. Id. at 685. No evidence even suggests that

Mr. Smith’s driving Mr. Cormier home promotes Roclan’s business in any way.

The remaining factors also do not support Ms. Senac’s position. There is no

relationship between the time, place, and purpose of Mr. Smith’s driving Mr. Cormier

home and his service to Roclan, which provides offshore construction services. Nor

is there a relationship between this act and Roclan’s business. While Mr. Cormier

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may have personally benefitted from Mr. Smith’s act, Roclan did not. Furthermore,

there is no indication that Roclan expected Mr. Smith to drive Mr. Cormier home as

part of his employment, and Mr. Cormier testified that he considered the act as a

favor, not employment related.

Ms. Senac has failed to establish that she can prove at trial that Mr. Smith was

in the course and scope of his employment with Roclan. The only factual support for

her contention is that he was being paid wages at the time of the accident, and we

have explained why that factor is insufficient to carry her burden of proof.

Furthermore, she has failed to establish any of the other factors pertinent to a

determination that the accident occurred within the course and scope of Mr. Smith’s

employment with Roclan. Accordingly, the trial court’s grant of summary judgment

was not error.

Disposition

The judgment of the trial court is affirmed. All costs are assessed to Claudia

Senac.

AFFIRMED.

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