Kenneth Dale Kelly, Et Ux. v. Boise Building Solutions

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1116

KENNETH DALE KELLY, ET UX.

VERSUS

BOISE BUILDING SOLUTIONS, ET AL.

**********

APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 19528
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Jerold Edward Knoll, Jr.
Attorney at Law
Post Office Box 426
Marksville, Louisiana 71351
(318) 253-6200
Counsel for Plaintiffs/Appellees:
Kenneth Dale Kelly
Jackie Denise Kelly

Amos H. Davis
Attorney at Law
7932 Wrenwood Boulevard, Suite B
Baton Rouge, Louisiana 70809
(225) 248-1400
Counsel for Plaintiffs/Appellees:
Jackie Denise Kelly
Kenneth Dale Kelly

W. Michael Adams
Scott R. Wolf
Blanchard, Walker, O’Quinn & Roberts
Post Office Drawer 1126
Shreveport, Louisiana 71163-1126
(318) 221-6858
Counsel for Defendants/Appellants:
Boise Cascade, L.L.C.
Old Republic Insurance Company

Keith M. Pyburn
Larry Sorohan
Fisher & Phillips LLP
201 St. Charles Avenue, Suite 3710
New Orleans, Louisiana 70170
(504) 522-3303
Counsel for Defendants/Appellants:
Boise Cascade, L.L.C.
Old Republic Insurance Company

John A. Brittain
Attorney at Law
Post Office Box 2153
Natchitoches, Louisiana 71457
(318) 354-9935
Counsel for Defendant/Appellant:
Dwayne Myers

KEATY, Judge.

This appeal stems from an incident between co-workers at their place of

employment in which one of the workers was severely injured. For the following

reasons, we hold that the trial court did not err in granting a motion for directed

verdict in favor of the injured employee based on its finding that his co-worker

committed an intentional tort upon him while in the course and scope of their

employment. We further find that the trial court did not err in refusing to grant the

defendants‟ request that they be given an offset against the amount they owe

pursuant to the judgment for any future workers‟ compensation payments that they

may pay to the injured employee. Thus, we affirm.

FACTS AND PROCEDURAL HISTORY

Kenneth Dale Kelly was a forklift operator employed by Boise Cascade,

L.L.C. (Boise) at its engineered wood products facility in Lena, Louisiana. On

August 28, 2007, Kelly was sitting at a desk in the Boise shipping office with his

feet propped up on a drawer when his co-worker, Dwayne Myers, moved toward

him and, despite his protestations, put his hands on Kelly. Thereafter, the chair

toppled over and Kelly fell to the floor injuring his back, which had previously

been operated on in 2000 and 2002. As a result of his injuries, Kelly 1 filed suit

against Myers and Boise.2

The matter proceeded to a five-day jury trial on December 13, 2010. After

plaintiffs rested their case, the defendants moved for a directed verdict, contending

that plaintiffs failed to prove by a preponderance of the evidence that Myers‟

actions amounted to an intentional act or that Myers‟ actions occurred during the

1
The suit included a claim by Kelly‟s wife, Jackie, for loss of consortium.
2
Old Republic Insurance Company (Old Republic), Boise‟s liability insurer, was named
as an additional defendant by way of a supplementing and amending petition. Therefore, when
we refer to Boise in this opinion, we are sometimes referring to Old Republic as well.

course and scope of his employment with Boise. The trial court denied the

defendants‟ motion on the basis that reasonable minds could differ regarding

whether Myers acted intentionally and whether Boise should be held vicariously

liable for Myers‟ actions. The defendants then presented their defense to Kelly‟s

claims, after which they rested their case and re-urged their motion for directed

verdict. The trial court denied the defendants motion for the same reasons that it

had rejected their original motion.

Thereafter, plaintiffs moved for a directed verdict arguing that reasonable

minds could not reach any conclusion other than that plaintiffs had proven that: 1)

Myers committed the intentional tort of battery upon Kelly; 2) the battery occurred

within the course and scope of Myers‟ employment with Boise; 3) Kelly was not

guilty of comparative fault for having caused or contributed to the accident, and 4)

Kelly was injured as a result of Myer‟s conduct. The trial court granted plaintiffs‟

motion as regarding the first two issues and the remaining issues were submitted to

the jury.

The jury determined that Kelly was injured in the August 28, 2007 accident

and that Kelly was at fault in causing his own injuries. Fault was apportioned 30%

to Kelly and 70% to Myers. The jury assessed Kelly‟s total damages at

$944,940.00 and his wife‟s loss of consortium damages at $50,000.00. In a written

judgment dated March 1, 2011, judgment was rendered in favor of plaintiffs and

against Myers, Boise, and Old Republic, in solido, for the amounts awarded by the

jury, plus interest and costs.3

Plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV)

seeking an increase in their awards for general and special damages, especially in
3
The judgment contained a notation explaining that, pursuant to La.Civ.Code art.
2315(C), Kelly‟s award of damages was not reduced by the percentage of fault assessed to him
by the jury. An amended judgment was signed on March 9, 2011, to correct the statutory
reference to that of La.Civ.Code art. 2323(C).
2

those categories where no damages were awarded, such as for past medical

expenses, past lost wages, past and future mental anguish, loss of enjoyment of life,

and physical disability. The defendants opposed the motion, contending that the

jury‟s verdict should stand given the conflicting evidence adduced at trial and the

great discretion afforded to a jury when assessing damages. Alternatively, the

defendants submitted that if the trial court were to grant plaintiffs‟ motion and

award plaintiffs any amounts for past medical expenses or past lost wages, then the

defendants would be entitled to a credit based on the amounts that Boise had

previously paid to or on behalf of Kelly for medical and indemnity benefits. After

a hearing, the trial court granted the motion in part, amending the jury‟s award of

zero for past medical expenses and past lost wages to $62,017.30 and $129,667.07

respectively, and granting Boise a credit against those awards for the workers‟

compensation medical and indemnity benefits it paid to Kelly through the date of

the verdict; plaintiffs‟ JNOV was denied in all other respects. The effect was to

award Kelly an additional $48,748.50 in past lost wages, raising the judgment in

plaintiffs‟ favor to $993,688.50.

Boise, Old Republic, and Myers now appeal, 4 asserting that: 1) the trial

court erred in directing a verdict that an alleged intentional battery committed by

Myers could be deemed in the course and scope of his employment with Boise for

purposes of respondeat superior; 2) the trial court erred by making the first

LeBrane5 factor dispositive of whether Boise could be liable for Myers‟ battery

upon Kelly; 3) the trial court erred in directing a verdict that a battery occurred; 4)

the trial court erred in directing a verdict that Myers‟ actions were intentional acts

4
Although Myers appealed and filed an appellate brief separately from Boise and Old
Republic, his assignments of error mirrored theirs.
5
See LeBrane v. Lewis, 292 So.2d 216 (La.1974) (employer of supervisor, who fired
employee, followed him outside, and knifed him during a fight, held liable in tort to discharged
employee).
3

for purposes of evaluating workers‟ compensation exclusivity; 5) the trial court

erred in failing to direct a verdict in Boise‟s favor; and 6) the trial court erred in

failing to grant Boise an offset for future workers‟ compensation benefits against

the tort judgment awarding Kelly damages for future medical expenses and future

lost wages.

DISCUSSION

Plaintiffs’ Answer to Appeal

Boise‟s motion for suspensive appeal was filed and granted on May 19, 2011.

Boise filed its appeal bond on May 26, 2011. Plaintiffs filed an answer to appeal

in the trial court on June 2, 2011. The record was lodged in this court on

September 12, 2011. Boise filed its appellant brief in this court on October 14,

2011. Plaintiffs filed a pleading entitled in part, “Original Brief of Appellees

Kenneth Dale Kelly and Jackie Denise Kelly in Answer to Appeal Filed by Boise”

in this court on November 14, 2011. In response, Boise filed a motion to strike

plaintiffs‟ answer to appeal. Thereafter, plaintiffs filed a memorandum in

opposition to Boise‟s motion to strike, along with a motion to supplement the

record with the answer to appeal that they had previously filed in the trial court.

Boise opposed plaintiffs‟ motion to supplement. We referred both motions to the

merits.

In its motion to strike, Boise relies on this court‟s holding in Smoot v.

Hernandez, 08-1121 (La.App. 3 Cir. 3/4/09), 6 So.3d 352, a matter containing facts

remarkably similar to those presented in this matter. In Smoot, we wrote:

The record reflects that the trial court granted Mr. Hernandez‟s
appeal on July 16, 2008, and the suspensive appeal bond was filed
contemporaneously therewith. At that time, in accordance with
La.Code Civ.P. art. 2088, the trial court became divested of
jurisdiction over all matters on appeal. An Answer to Appeal was
subsequently filed by Ms. Smoot in the trial court, i.e., the Twelfth
Judicial District Court, on September 16, 2008. Although this filing
4

was within fifteen days of the lodging of the record, the trial court no
longer had jurisdiction. Thus, the Answer to Appeal filed on behalf of
Ms. Smoot in the Twelfth Judicial District Court, although timely,
was improvidently filed in the wrong tribunal. Therefore, the Answer
to Appeal filed by Ms. Smoot in the trial court is not properly before
this court.

Additionally, the Answer to Appeal and Opposition to Original
Brief which was filed with this court on October 23, 2008 is deficient
for two other reasons. First, as previously stated by this court, “[a]
brief submitted by the appellee does not satisfy the requirement of
[La.Code Civ.P. art. 2133.] (citation omitted).” Broussard v. Leger,
624 So.2d 1304, 1307 (La.App. 3 Cir.1993), writ denied, 93-2762
(La.1/7/94), 631 So.2d 452 (quoting Sears, Roebuck & Co. v. Appel,
598 So.2d 582, 584 (La.App. 4 Cir.1992)). Although Ms. Smoot‟s
Answer to Appeal and Opposition to Original Brief states that Ms.
Smoot was entitled to a modification of the general damage award, it
was erroneously set forth in the brief and not a pleading. As such, it is
insufficient to satisfy the requirements of an answer to appeal.
Secondly, the Answer to Appeal and Opposition to Original Brief is
deficient for its failure to satisfy the time requirements of La.Code
Civ.P. art. 2133. This court has previously held that it will not
consider an answer to appeal that is filed more than fifteen days after
the return date or date of lodging, whichever is later. Martin v. G. &
A Limited, I, 604 So.2d 1014 (La.App. 3 Cir.), writs denied, 607 So.2d
557 (La.1992). For the foregoing reasons, we find that Ms. Smoot‟s
answer to appeal seeking a modification of the general damages
awarded by the trial court pursuant to the JNOV is not properly before
this court and will not be considered.

Id. at 361-62. (Footnote omitted.)

We find no meaningful distinction between the instant matter and Smoot, we

conclude that plaintiffs‟ answer to appeal was not timely filed, and we will not

consider their request for modification of the trial court‟s judgment.

Law

We will address defendants‟ first five assignments of error together because

they are interrelated. As previously mentioned, plaintiffs moved for a directed

verdict under La.Code Civ.P. art. 1810 at the close of the defendants‟ case. The

trial court granted the motion in part, finding that reasonable minds could not reach

any conclusion other than that Myers committed an intentional battery on Kelly

within the course and scope of their employment with Boise.

5

A directed verdict is appropriately granted in the event that the “facts
and inferences are so overwhelming in favor of the moving party that
the court finds that reasonable men could not arrive at a contrary
verdict.” Guste v. Nicholls Coll. Found., 564 So.2d 682, 689
(La.1990). On review, “an appellate court also considers whether the
evidence submitted indicates that reasonable triers of fact would be
unable to reach a different verdict.” McNabb v. Louisiana Medical
Mutual Insurance, 03-0565 (La.App. 3 Cir. 11/5/03), 858 So.2d 808,
816-17. “However, if there is substantial evidence opposed to the
motion, that is, evidence of such a quality and weight that reasonable
and fair-minded men exercising impartial judgment might reach
different conclusions, the motion should be denied, and the case
should be submitted to the jury.” Belle Pass Terminal, Inc. v. Jolin,
Inc., 92-1544/1545 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 478, writ
denied, 94-0906 (La.6/17/94), 638 So.2d 1094. On review, an
appellate court considers the evidence under the substantive law
applicable to the nonmoving party‟s claim.

Gibson v. Digiglia, 07-1028, p. 3 (La.App. 3 Cir. 3/5/08), 980 So.2d 739, 742.

The substantive law applicable to plaintiffs‟ claims involves the interplay of

three areas of law: tort, vicarious liability, and workers‟ compensation. In Caudle

v. Betts, 512 So.2d 389, 390-91 (La.1987) (citations omitted) (footnote omitted),

the supreme court explained:

The Louisiana Worker‟s Compensation Act provides for
compensation if an employee receives personal injury by accident
arising out of and in the course of his employment. La.R.S. 23:1031.
As a general rule, the rights and remedies granted to an employee
therein are exclusive of all rights and remedies against his employer,
any officer or principal of the employer, or any co-employee. La.R.S.
23:1032. However, an exception to this rule provides that nothing
therein shall affect the liability of an employer, principal, officer, or
co-employee resulting from an “intentional act”. Id.

In interpreting the statute, this court has held that compensation
shall be an employee‟s exclusive remedy against his employer for an
unintentional injury covered by the act, but that nothing shall prevent
an employee from recovering from his employer under general law for
an intentional tort. Bazley v. Tortorich, 397 So.2d 475 (La.1981). We
concluded that in drawing a line between intentional and unintentional
acts the legislative aim was to make use of the well established
division between intentional torts and negligence. Id. at 480.

In Bazley this court briefly explained the basic difference
between an intentional tort and a negligent act but did not profess to
set forth a complete exposition of either branch of tort law.
Intentional tort law encompasses far more than could be explicated
reasonably in a single opinion. Consequently, when an employee
6

seeks to recover from his employer for an intentional tort, a court
must apply the legal precepts of general tort law related to the
particular intentional tort alleged in order to determine whether he has
proved his cause of action and damages recoverable thereunder.

....

A harmful or offensive contact with a person, resulting from an
act intended to cause the plaintiff to suffer such a contact, is a battery.
The intention need not be malicious nor need it be an intention to
inflict actual damage. It is sufficient if the actor intends to inflict
either a harmful or offensive contact without the other‟s consent.

In Reeves v. Structural Preservation Systems, 97-1465 (La.App. 3 Cir.

6/3/98), 716 So.2d 58, reversed on other grounds, 98-1795 (La. 3/12/99), 731

So.2d 208, this court further interpreted Bazley, noting:

An injury is intentional, i.e., the product of an intentional act,
only when the person who acts either consciously desires the physical
result of his act, whatever the likelihood of that result happening from
his conduct; or knows that result is substantially certain to follow
from his conduct, whatever his desire may be as to the result.

In Baumeister v. Plunkett, 95-2270, pp. 3-4 (La. 5/21/96), 673 So.2d 994,

996-97, the supreme court stated:

[T]his Court has held that in order for an employer to be vicariously
liable for the tortious acts of its employee the “tortious conduct of the
[employee must be] so closely connected in time, place, and causation
to his employment duties as to be regarded as a risk of harm fairly
attributable to the employer‟s business, as compared with conduct
instituted by purely personal considerations entirely extraneous to the
employer‟s interest.” Barto v. Franchise Enterprises, Inc., 588 So.2d
1353, 1356 (La.App. 2d Cir.1991), writ denied, 591 So.2d 708 (1992)
(quoting LeBrane v. Lewis, 292 So.2d 216, 217, 218 (La.1974)).

....

. . . [O]ur LeBrane v. Lewis decision considered the following
factors in holding an employer liable for a supervisor‟s actions in
stabbing his fellow employee:

(1) whether the tortious act was primarily employment rooted;

(2) whether the violence was reasonably incidental to the
performance of the employee‟s duties;

(3) whether the act occurred on the employer‟s premises; and

7

(4) whether it occurred during the hours of employment.

292 So.2d at 218. This does not mean that all four of these factors
must be met before liability may be found.

The Incident

Both Kelly and Myers held the position of Production Tech V (PTV) forklift

operator at Boise. Their chief responsibilities were transporting wood in the

facility throughout its processing and completing paperwork concerning Boise‟s

inventory. The forklifts contained CB radios which the operators used to

communicate with each other when in their forklifts. Walkie-talkie‟s were

available for speaking to other Boise employees within the plant. The incident in

question occurred on the morning of August 28, 2007, in Boise‟s shipping office,

where Kelly had gone after being notified that his forklift was malfunctioning. He

was at a desk checking inventory on a computer screen, leaning back in a rolling

chair with his feet propped up about six inches above the floor on one of the desk‟s

bottom left drawers. Two other PTVs, Tommy McCarty and Clay Barron, were

also in the shipping office, and McCarty had called Myers and asked him to bring a

cut sheet6 to the office.

Kelly testified that when Myers arrived at the office, he told Kelly to call

Danny, another employee, to come help to complete the cut sheet. When Kelly

refused, Myers‟ expression changed and Kelly sensed that the situation was about

to “get hairy.” Myers then asked Kelly if he was telling him “no,” to which Kelly

replied in the affirmative. At that point, Myers began to approach Kelly, which

caused Kelly to take his foot off the desk drawer and sit up on the front of his chair.

Kelly then told Myers, “Dwayne, don‟t. Don‟t mess with me, Dwayne,” but Myers

continued toward him. According to Kelly, Myers grabbed his right arm and

6
According to Myers‟ testimony, a “cut sheet” was a list of how much and what size(s)
of wood were needed in the different areas of the plant.
8

reached up under his calf, picked him up out of the chair, and threw him to the

concrete floor. Afterwards, Myers just stood there looking at him on the floor

before leaving the office. Kelly remained on the floor for a few minutes because

of the severe pain he was experiencing. Barron later helped him up into a chair,

and he waited for his supervisor, Shad Roberts, to arrive so that he could report the

accident to him.

Myers told a different story. He testified that he asked Kelly to call another

employee because there was a CB radio close to him. When Kelly refused to offer

him any help, Myers reached across Kelly to retrieve the CB radio from the desk in

front of Kelly and, as he did so, he may have lightly brushed against Kelly. Kelly

then “went all the way back” and Myers grabbed his legs “to prevent the chair

from collapsing all the way over.” Kelly ended up on the ground, and, according

to Myers, they all “kind-of laughed.” Myers asked Kelly if he was okay, and when

Kelly did not answer, Myers realized that it was serious and he left the office

because he was “behind and . . . in a big rush.” Myers testified that it was common

knowledge in the shipping department that Kelly suffered from back problems;

however, he denied knowing that Kelly had two prior back surgeries.

After the incident, an investigation was conducted by Barry Robinson, the

superintendent of Boise‟s shipping office. Roberts, the supervisor of the shipping

department, was present during most of that investigation. According to Robinson,

the communications between Myers and Kelly on the morning of the incident were

work related and involved Boise business. In his opinion, the incident went

beyond horseplay. Robinson testified that he questioned Kelly, Myers, McCarty,

and Barron about the incident. McCarty and Barron confirmed that as Myers

approached Kelly, Kelly told Myers not to touch or “mess with” him, which, in

Robinson‟s opinion, added credence to the version of events that Kelly relayed to
9

him. The email report that Robinson created regarding the incident, dated

August 30, 2007, was submitted at trial as Joint Exhibit 2. In the report, Robinson

noted that Kelly told him that Myers had reached down and lifted up his leg off the

floor while reaching for his chest, which caused him to lean back in the chair until

it flipped with Kelly in it. Kelly told Robinson that Myers was joking around, as

he often did. According to the report, Myers demonstrated on Robinson how the

accident had occurred, grabbing his leg and pushing on his chest. Myers explained

that as the chair began to fall over backwards, he attempted to slow it down and

keep it from hitting the floor hard. After his investigation, Robinson determined

that Myers‟ actions were in violation of Boise‟s policy regarding unauthorized

touching. Robinson drafted a Last Chance Agreement (LCA) which Myers signed

on September 4, 2007. The LCA noted that Myers had been suspended during

Boise‟s investigation of the matter because of his having been counseled by

management in the past about similar issues. According to the LCA, Myers‟ “poor

judgment was a safety violation and . . . caused an injury to a fellow employee,”

and Myers admitted that “the performance incidents did occur.” The LCA

provided that in lieu of being terminated, Myers was being given one last chance to

continue his employment with Boise.

Within a day or so of the accident, Roberts completed a Supervisor‟s

Incident Investigation report, which was submitted at trial as Joint Exhibit 1. The

report summarized the incident as follows: “Ken was sitting in office chair at desk

when another employee grabbed him by the leg & shoulder – chair turned over

backwards. . . .” The report stated that “horseplay on the part of one employee”

was the root cause of the incident. An attachment to the report signed by Robinson

stated that he and Roberts had inspected the rolling desk chair from the incident.

The chair was several years old and reclined when no one was sitting it. Robinson
10

had reclined in the chair to test its stability and “never felt the chair get unstable.”

The attachment noted that the subject chair was replaced on September 14, 2007.

In granting plaintiffs‟ motion for directed verdict, the trial court noted that

the jurisprudence indicated that directed verdicts should only be issued sparingly

and that the standard for granting a directed verdict was very high. Nevertheless,

after listening to all of the evidence, the trial court determined that “even under Mr.

Myer‟s description of what happened, there was an intentional touching” to which

Kelly was objecting and which amounted to a battery regardless of whether Myers

intended to injure Kelly. The trial court explained that it was Myers‟ intent to put

his hands on Kelly, despite Kelly‟s telling him not to, that put Myers‟ actions “out

of the realm of any type of negligence.” With regard to course and scope, the trial

court concluded that there was no question but that the incident occurred in the

workplace, during working hours, and that the precipitating event that caused the

incident, i.e., Myers‟ attempt to get help with completing the cut sheet, was clearly

employment rooted.

When Myers approached him in the shipping office, Kelly was reclining in a

rolling chair with his feet elevated. It was common knowledge in the shipping

department that Kelly suffered from back problems. Thus, as explained by the trial

court, it is irrelevant whether Myers touched Kelly softly or roughly, because the

evidence overwhelming indicated that Myers touched Kelly in an offensive or

harmful manner after being told not to, and, that as a result of that unauthorized

touching, Kelly fell over in the chair reinjuring his back. Myers consciously

desired to place his hands on Kelly against his will when he came at Kelly despite

his protestation that he not be touched. The fact that Myers may not have intended

to injure Kelly is of no moment in light of the fact that he intended to inflict a

battery, however slight, upon Kelly, whom he knew had back problems and under
11

circumstances that made it likely that Kelly could fall and be injured. Myers‟

actions against Kelly are no less of an intentional tort simply because the two men

were co-workers. We conclude that no reasonable trier of fact could decide that

Myers did not commit an intentional tort against Kelly.

The evidence also overwhelmingly indicates that the incident arose as a

result of Myers‟ attempt to get the cut sheet completed and that the incident was

“reasonably incidental to the performance of [Myers‟] duties.” Baumeister, 673

So.2d at 1000. On the other hand, absolutely no evidence was offered that points

to the conclusion that Myers‟ actions were motivated by any “purely personal

considerations entirely extraneous to [Boise‟s] interest.” Id. at 997. By all

accounts, before this incident occurred Myers and Kelly considered each other a

friend, and there was not a hint of animosity between the two of them.

The defendants contend that they should not be liable to Kelly in tort

because the battery did not benefit Boise‟s business and because Myers‟ actions

violated Boise‟s policy against unauthorized or offensive touching. We disagree.

In Benoit v. Capital Manufacturing Co., 617 So.2d 477 (La.1993), an employee of

the defendant was injured when he got into a fight with a co-employee at work

over whether the rear door to their work area should be opened or closed. In

finding the employer liable to the injured employee for the battery to the plaintiff

by his fellow employee, the supreme court noted that while the battery upon

plaintiff did not benefit the defendant employer, neither did the supervisor‟s

knifing of the fired employee in LeBrane, 292 So.2d 216, benefit the employer in

that case. Nonetheless, the employer in Benoit was held to have respondeat

superior liability for the tortious acts of its employee because the employee‟s

actions were “clearly „employment-rooted.‟” Benoit, 617 So.2d at 479.

In addition, this court recently noted that:
12

Because the policy manual warns against acts of violence and
harassment in the workplace, under the reasoning in Brumfield [v.
Coastal Cargo Co., Inc., 99-2756 (La.App. 4 Cir. 6/28/00), 768 So.2d
634, writ denied, 00-2293 (La.10.27.00), 772 So.2d 658], the
possibility of violence and harassment at work is a risk of harm fairly
attributable to [the employer‟s] business.”

Edmond v. Pathfinder Energy Servs., Inc., 11-151, pp. 9-10 (La.App. 3 Cir.

9/21/11), 73 So.3d 424, 429-30, writ denied, 11-2234 (La. 12/16/11), 76 So.2d

1204. Here too, the fact that Boise corporate policy prohibited harassment and

other unauthorized touching leads us to the inference that the possibility that its

employees will engage in on-the-job horseplay “is a risk of harm fairly attributably

to [Boise‟s] business.” Id. We conclude that no reasonable trier of fact could find

that Myers‟ actions did not occur in the course and scope of his employment with

Boise.

We further conclude that the trial court properly applied the LeBrane test in

determining whether Boise should be held liable for Myers‟ tortious actions. See

LeBrane v. Lewis, 292 So.2d 216 (La.1974). Moreover, we find that the trial court

did not apply undue weight to the first LeBrane factor because here, all of the

LeBrane factors pointed in favor of holding Boise vicariously liable for Myers‟

actions against Kelly because the battery was “primarily employment-rooted” and

“reasonably incidental to the performance of [Myers‟] duties,” and because the

battery “occurred on the employment premises and during the hours of

employment.” Id. at 218.

After considering the testimony and evidence in light of the substantive law

applicable to this matter, we are convinced that no reasonable trier of fact could

arrive at a verdict other than one finding that Myers committed an intentional act

upon Kelly within the course and scope of their employment with Boise. Thus, the

trial court did not err in directing a verdict in favor of plaintiffs. Conversely, the

13

trial court did not err in failing to direct a verdict in Boise‟s favor as the evidence

simply did not support Boise‟s claims that Myers did not act intentionally or that it

should not be held vicariously liable for his actions. For the foregoing reasons,

defendants‟ first five assignments of error lack merit.

Offset

The defendants contend that the trial court erred in failing to grant them an

offset against the tort award for any future workers‟ compensation payments that it

will pay to Kelly, thus guaranteeing that he will receive a double recovery. They

claim that their position is mandated by the binding Louisiana Supreme Court

authority espoused in Gagnard v. Baldridge, 612 So.2d 732 (La.1993).

Plaintiffs point out that they have only filed suit against the defendants for

tort damages. They have not sued Boise for workers‟ compensation benefits and

no judgment has been entered ordering Boise to pay future disability benefits or

medical expenses. As a result, plaintiffs contend that there is no workers‟

compensation judgment which can be offset or credited against the tort award

made in this case. Finally, plaintiffs submit that “this court has already considered

and rejected an argument similar to that” which Boise raises here in Reeves, 716

So.2d 58, 627 where we stated:

[T]he situation in Gagnard is different from that presented here. In
Gagnard, the court was faced with the possibility of double recovery
because the employer was also a tortfeasor and its general liability
insurer failed to appeal. Struggling with this special circumstance and
desiring not to afford the claimant double recovery, the supreme court
granted the employer a credit for future compensation benefits against
satisfaction of the liability judgment. Here, however, La.R.S. 23:1103
prevents double recovery against an employer whose obligation to pay
the claimant is mandated solely by workers‟ compensation law, as
opposed to an obligation to pay that is grounded additionally in
general tort law. La.R.S. 23:1103 allows the compensation carrier a
credit for future compensation computed at 6% per annum, up to the

7
As previously mentioned, Reeves was reversed on grounds unrelated to the issues
presented in the instant case.
14

amount of the tort judgment; and, it is not liable for payment until that
judgment is used up. Therefore, since the employer is entitled to a
credit for future payments by operation of law, no judgment providing
so is necessary.

Here, in rejecting the defendants‟ claim that they were due an offset, the trial

court observed, “[y]ou can‟t satisfy a fixed obligation, or a liquidated amount, with

a promise of an expectation of a performance in the future, that‟s not how a set-off

works.” In so finding, the trial court noted that to allow the defendants to satisfy

the tort judgment “over the next 20 years” when plaintiffs were awarded a money

judgment that was immediately due and payable would “totally negate[] the time

value money aspect” of that judgment. The trial court also anticipated that

problems could occur if defendants were awarded an offset and Kelly were to die

before receiving the full value of the tort judgment awarded by the jury in this case.

Based on our prior holding in Reeves, 716 So.2d 58, we are of the opinion

that the trial court did not err in refusing to grant the defendants an offset against

the tort award for any future workers‟ compensation payments that it will pay to

Kelly in the future. As noted by the trial court, the defendants can institute a

proceeding in the workers‟ compensation arena to prevent plaintiffs from receiving

any double recovery. The defendants‟ sixth assignment of error lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in its

entirety. Costs of this appeal are assessed to the defendants.

AFFIRMED.

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