Ralph Coleman v. Gregory Landry

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1035 consolidated with 12-1036

RALPH COLEMAN, ET AL.

VERSUS

GREGORY LANDRY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DIV. J, NO. C-20046151 C/W C-20046153
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Lee Ann Archer
Law Office of Lee A. Archer
1225 Rustic Lane
Lake Charles, LA 70605
COUNSEL FOR PLAINTIFFS-APPELLANTS:
Ralph Coleman
Dejuana Hightower

Mark Gerard Artall
Attorney at Law
109 S. College Road
Lafayette, LA 70503
(337) 233-1777
COUNSEL FOR PLAINTIFFS-APPELLANTS:
Ralph Coleman
Dejuana Hightower

William Compton Helm
Helm & Jacobs, LLC
4336 North Blvd., Suite 200
Baton Rouge, LA 70806
(225) 767-9974
COUNSEL FOR DEFENDANT-APPELLEE:
Jerry Groshans d/b/a J&L Trucking Co.

Donald Russell Smith
Attorney at Law
6777 Jefferson Hwy
Baton Rouge, LA 70806
(225) 926-0770
COUNSEL FOR DEFENDANT-APPELLEE:
Progressive Security Insurance Co.

PICKETT, Judge.

Ralph Coleman and Dejuana Hightower, acting individually and on behalf of

their incapacitated major daughter, Heather Coleman (collectively referred to

hereinafter as Coleman), appeal the trial court’s grant of summary judgment in

favor of Paul Girard ―Jerry‖ Groshans, doing business as J&L Trucking Company,

and his insurer, Progressive Security Insurance Company (Progressive).

STATEMENT OF THE CASE

On December 18, 2003, Robert Jackson drove his motorcycle eastbound on

U.S. Highway 90. Heather Coleman rode as a passenger on Jackson’s motorcycle.

As Jackson made a right turn into the parking lot of a truck stop, a motorcycle

operated by Gregory Landry collided with the motorcycle operated by Jackson.

Heather Coleman was thrown from the motorcycle and suffered grievous brain

injuries as a result of the collision. She is permanently disabled.

Ralph Coleman and Dejuana Hightower, Heather Coleman’s parents, filed

two separate lawsuits to recover for the damages suffered by Heather and

themselves as a result of the accident. They filed one suit against Jackson and

Landry and their insurers, alleging negligence in the operation of the motorcyles on

the night in question. In a separate suit, they sued Jerry Groshans d/b/a J&L

Trucking Company (Groshans) and his insurer, Progressive, alleging that Jackson

and/or Landry were employees of Groshans, acting in the course and scope of their

employment on the night of the accident, and that the insurance policy issued by

Progressive covered the injuries sustained by Heather Coleman. The suits were

consolidated for trial.

Groshans filed a motion for summary judgment, arguing that Jackson was

never his employee, and therefore, he was not vicariously liable for the injuries

sustained by Heather Coleman. Progressive filed a motion for summary judgment

alleging that its insurance policy did not cover the injuries sustained by Heather

Coleman. The trial court granted both motions for summary judgment and

dismissed Groshans and Progressive from the suit. Coleman now appeals.

ASSIGNMENTS OF ERROR

Coleman asserts seven assignments of error:

1. The district court erred in granting defendants’ motions for summary
judgment and dismissing plaintiffs’ claims against Progressive
Security Insurance Company and Jerry Groshans d/b/a J&L Trucking
Company.

2. The district court erred in determining the disputed issue of vicarious
liability on summary judgment.

3. The district court erred in weighing the evidence and disregarding the
testimony of four witnesses on the disputed issue of vicarious liability.

4. The district court erred in deciding that only the ―first-hand‖
testimony of defendants Jackson and Groshans was admissible:
statements of a party are not hearsay [sic].

5. The district court erred in failing to consider the separate issue of
liability under Progressive’s insurance policy, which covered
employees of Groshans driving ―temporary substitute vehicles.‖

6. The district court erred in failing to recognize that disputed issues of
material fact precluded summary judgment upon the employee status
of Jackson and Landry under the Progressive policy.

7. The district court erred in failing to recognize that under the
ambiguous policy provision regarding ―temporary substitute vehicle,‖
the policy must be construed to cover the motorcycles.

DISCUSSION

In reviewing judgments granting a motion for summary judgment, this court

uses a de novo standard of review. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670

(La. 2/26/08), 977 So.2d 839. Where 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,‖ then summary judgment is appropriate. La.Code

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Civ.P. art. 966(B). In determining if there is a genuine issue of material fact for

the purposes of a motion for summary judgment, a court does not make credibility

determinations or evaluate the weight of the evidence. Indep. Fire Ins. Co. v.

Sunbeam Corp., 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226.

In the second assignment of error, Coleman argues that the trial court

improperly disregarded the deposition of Ralph Coleman and the affidavits of

Dejuana Hightower, Susan Piccione, Jackson’s sister, and Robert M. Jackson,

Jackson’s father. In its reasons for judgment, the trial court clearly stated that it

gave more weight to the ―first-hand‖ testimony Groshans and Jackson. In the

second assignment of error, Coleman argues that the trial court improperly

excluded the deposition of Ralph Coleman and the affidavits of Hightower and

Jackson’s sister and father. We find nothing in the record indicating that this

evidence was ever subject to an objection or excluded by the trial court. In

reviewing the evidence de novo, then, we will review all the evidence in the

record, including these depositions and affidavits.

Coleman argues that Jackson and Landry were on an errand for Groshans

when they were pulling into the truck stop when the accident occurred, therefore

Groshans is vicariously liable for the injuries sustained by Heather Coleman. The

key question, then, is whether Jackson or Landry were employees of Groshans

acting in the course and scope of their employment at the time of the accident.

Jackson and Groshans flatly deny that there was ever a master-servant or

employment relationship. They also both stated that Jackson was not delivering an

alternator for a 1996 Peterbilt tractor to Groshans when the collision occurred.

Groshans testified that he himself was in the process of installing the alternator,

which he had picked up from the parts store, when he heard the motorcycles

approaching and looked up to see the collision.
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To support the claim that Jackson or Landry were employees of Groshans,

Coleman points to the deposition Ralph Coleman and the affidavits of Hightower,

Piccione, and Robert M. Jackson. Hightower stated that Jackson told her after the

accident that he was delivering an alternator to Groshans at the truck stop, and that

he was supposed to repair Groshans’ truck. She stated that Jackson told her that he

regularly bartered his services to Groshans in exchange for Groshans allowing him

to use his shop. Ralph Coleman testified in his deposition that Jackson told him

they were on way to the truck stop to deliver an alternator or repair Groshans’

truck. In virtually identical language, both Jackson’s sister and father state that

Jackson told them that he was delivering a part to Groshans at the time of the

accident.

Clearly there is a disputed issue of fact about whether Jackson was

delivering an alternator at the time of the accident. The critical, material issue of

fact that Coleman must provide some evidence of, however, is whether Jackson or

Landry were employees of Groshans at the time of the accident. To determine

whether an employee-employer relationship exists, the supreme court has held that

the most important issue to be considered is the right of control and supervision

over an individual. Savoie v. Fireman’s Fund Ins. Co., 347 So.2d 188 (La.1977).

―Factors to be considered in assessing the right of control are the selection and

engagement of the worker, the payment of wages and the power of control and

dismissal.‖ Id. at 191.

We find that even if Jackson or Landry was delivering an alternator to

Groshans, there is no evidence in the record that either of them was an employee or

servant of Groshans. The evidence is clear that Jackson and Groshans were long-

time friends. Groshans allowed Jackson to use space in his shop to tinker with his

motorcycles and store a welding machine and a drill press. Jackson occasionally
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did small jobs for Groshans personally, but Jackson was never paid for his

services. Groshans barely knew Landry. There is no scintilla of evidence that

Groshans exercised any control over Jackson or Landry. We find that even if

Jackson or Landry was delivering an alternator to Groshans at the time of the

accident, it was not as an employee but as a friend doing another friend a favor.

The trial court did not err in granting summary judgment in favor of Groshans and

dismissing Coleman’s claims.

Likewise the trial court did not err in granting summary judgment in favor of

Progressive. In order for the Progressive policy issued to Groshans to provide

coverage, the first inquiry is whether Jackson or Landry were employees of

Groshans. As we have determined that they were not employees, we find no

coverage.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are

assessed to Ralph Coleman and Dejuana Hightower.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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