Keith William MacKmer v. the Estate of Frank Angelle, Jr.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-665

KEITH WILLIAM MACKMER

VERSUS

THE ESTATE OF FRANK ANGELLE, JR.,
NATIONAL UNION FIRE INSURANCE COMPANY,
AND LEXINGTON INSURANCE COMPANY

************

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2011-2928, DIVISION “H”
HONORABLE RONALD F. WARE, DISTRICT JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

REVERSED IN PART;
AFFIRMED IN PART;
AND REMANDED.

David H. Hanchey
The Hanchey Law Firm
Post Office Box 2210
Lake Charles, Louisiana 70602
(337) 436-5551
COUNSEL FOR PLAINTIFF/APPELLANT:
Keith William Mackmer

Todd A. Townsley
Jordan Z. Taylor
The Townsley Law Firm
3102 Enterprise Boulevard
Lake Charles, Louisiana 70601
(337) 478-1400
COUNSEL FOR PLAINTIFF/APPELLANT:
Keith William Mackmer

Christopher P. Ieyoub
Plauché, Smith & Nieset, L.L.C.
1123 Pithon Street
Post Office Drawer 1705
Lake Charles, Louisiana 70602
(337) 436-0522
COUNSEL FOR DEFENDANTS/APPELLEES:
National Union Fire Insurance Company and
Lexington Insurance Company

Sidney Wallis Degan, III
Emily R. Adler
Degan, Blanchard & Nash
400 Poydras Street, Suite 2600
New Orleans, Louisiana 70130
(504) 529-3333
COUNSEL FOR INTERVENOR/APPELLEE:
New Hampshire Insurance Company

GENOVESE, Judge.

In this suit for personal injuries, Plaintiff, Keith William Mackmer, appeals

the trial court’s grant of summary judgment in favor of Defendants, National

Union Fire Insurance Company of Pittsburgh, Pennsylvania,1 and Lexington

Insurance Company. Mr. Mackmer also avers that the trial court erroneously

denied his motion for partial summary judgment on the issue of liability. 2 For the

following reasons, we find that the trial court erred in granting Defendants’ motion

for summary judgment as there remain genuine issues of material fact. For the

same reasons, we affirm the trial court’s denial of Plaintiff’s motion for partial

summary judgment. Accordingly, we reverse in part, affirm in part, and remand

for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 9, 2010, Mr. Mackmer was a guest passenger in a vehicle

owned by Moncla Coil Tubing Well Service, LLC (Moncla) and driven by Frank

Angelle, Jr., when the vehicle was involved in an accident with an oncoming

vehicle on Highway 27, between Sulphur and DeQuincy, Louisiana. Dustin Bass

and Timothy Bass were also occupants in the vehicle when the accident occurred,

and the men were all employed by Moncla.

Mr. Angelle died as a result of the injuries he sustained in the accident, and

Mr. Mackmer sustained serious personal injury. Mr. Mackmer instituted this

1
This Defendant is erroneously named in Mr. Mackmer’s petition as National Union Fire
Insurance Company.
2
Generally, pursuant to La.Code Civ.P. art. 968, the denial of a motion for summary
judgment is an interlocutory judgment from which an appeal may not be taken. However, when
there is also an appeal from a final judgment, such as a trial court’s grant of summary judgment,
an appellate court may also review the interlocutory ruling. See In re Succession of Carlton,
11-288 (La.App. 3 Cir. 10/5/11), 77 So.3d 989, writ denied, 11-2840 (La. 3/2/12), 84 So.3d 532.

personal injury action, naming as Defendants the estate of Mr. Angelle3 and the

liability insurers of the Moncla vehicle Mr. Angelle was operating at the time of

the accident, National Union Fire Insurance Company of Pittsburgh, Pennsylvania,

and Lexington Insurance Company (collectively Lexington).

In its Answer, Lexington denied liability and affirmatively alleged its

entitlement to tort immunity pursuant to La.R.S. 23:1032. On September 11, 2013,

Mr. Mackmer filed a motion for partial summary judgment on the issue of liability.

Therein, Mr. Mackmer asserted that the undisputed facts established that

Mr. Angelle was not in the course and scope of his employment with Moncla when

the accident happened; accordingly, Lexington could not prevail on its affirmative

defense of tort immunity. Lexington filed a cross-motion for summary judgment,

likewise on the issue of course and scope and its immunity from the claims

asserted by Mr. Mackmer. Thereafter, Mr. Mackmer filed a motion to strike:

(1) portions of Lexington’s asserted undisputed facts; (2) what he contended were

new defenses raised by Lexington in its brief to the trial court;4 and (3) the

affidavit of Leon Charles Moncla, Jr. submitted by Lexington in support of its

motion.

Following a hearing, the trial court denied Mr. Mackmer’s motion to strike

relative to the undisputed facts set forth by Lexington. Mr. Mackmer’s motion to

strike the affidavit of Mr. Leon Moncla was denied in part and granted in part,

resulting in the word “directly” being striken by the trial court. Substantively, on

the cross motions for summary judgment, the trial court denied Mr. Mackmer’s

motion and granted Lexington’s motion, finding that Mr. Angelle was in the course

and scope of his employment with Moncla when the accident happened and that
3
The claims against the estate of Mr. Angelle were dismissed pursuant to a Consent
Judgment signed February 20, 2014.
4
This portion of Mr. Mackmer’s motion to strike was later voluntarily dismissed.
2

Lexington could not be held liable to Mr. Mackmer due to the tort immunity

provided to co-employees. A concomitant judgment was signed by the trial court

on February 21, 2014. From said judgment, Mr. Mackmer appeals.

ASSIGNMENTS OF ERROR

Mr. Mackmer presents the following assignments of error for our review:

1. Did the trial court err by admitting an affidavit into evidence that
the affiant admitted in his deposition was not based on personal
knowledge and was clearly contradicted by the affiant’s deposition
testimony?

2. Did the trial court err by taking judicial notice of the destination to
which [Mr.] Angelle was headed at the time of the wreck and the
purpose of the trip?

3. Did the trial court err in denying [Mr.] Mackmer’s motion for
summary judgment as to [Lexington’s] affirmative defense of
worker’s [sic] compensation tort immunity, thus barring [Mr.]
Mackmer’s claim, even though there was: no admissible evidence
concerning whether driver [Mr.] Angelle and his occupants were
on their way to work when the wreck occurred; no evidence
demonstrating the purpose of the trip; no valid evidence
concerning why Angelle was driving; clear testimony that [Mr.]
Angelle’s “travel pay” was not connected to travel; [Mr.] Angelle
was not paid per diem for the date of the accident; [Mr.] Angelle’s
employment contract did not provide or guarantee him
transportation[,] and [Mr.] Angelle was not required to drive under
the terms of his employment?

4. Alternatively, did the trial court err by granting [Lexington’s]
cross-[m]otion for [s]ummary [j]udgment in light of the undisputed
facts listed in Issue no. 3?

5. Did the trial court err in admitting evidence submitted by
[Lexington] and allowing [Lexington] to proceed over [Mr.]
Mackmer’s timely objections and motion to strike concerning these
issues when [Lexington’s] [m]otion and evidence violated the
procedural requirements of Louisiana District Court Rules 9.9 and
9.10 and Louisiana Code of Civil Procedure Article 966 as well as
the mandatory time limits under these provisions for filing
summary judgment evidence?

6. Did the trial court err by continuing the hearing for the parties’
cross-motions for summary judgment thereby allowing
[Lexington] the opportunity to file a corrected consolidated
memorandum and to supplement [its] exhibits in an attempt to
remedy (albeit unsuccessfully) [its] violations of Louisiana District
3

Court Rules 9.9 and 9.10 and Louisiana Code of Civil Procedure
Article 966?

LAW AND DISCUSSION

In his appeal, Mr. Mackmer has assigned both procedural and substantive

errors of the trial court. For the reasons that follow, we find merit to his contention

that the trial court erred in granting Lexington’s motion for summary judgment on

liability. Accordingly, we pretermit addressing the procedural errors raised by

Mr. Mackmer as unnecessary in reaching our conclusion herein.

This court recently discussed in detail an appellate court’s review of a trial

court’s grant of summary judgment stating as follows:

In the case of Jagneaux v. Frohn, 11-461, pp. 2-3 (La.App. 3 Cir.
10/5/11), 74 So.3d 309, 310-11, this court discussed the standard of
review and the law applicable to motions for summary judgment as
follows:

Our Louisiana Supreme Court has instructed us on
the standard of review relative to a motion for summary
judgment as follows:

A motion for summary judgment is a
procedural device used when there is no
genuine issue of material fact for all or part
of the relief prayed for by a litigant. Duncan
v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06)],
950 So.2d 544, [see La.Code Civ.P.] art.
966. A summary judgment is reviewed on
appeal de novo, with the appellate court
using the same criteria that govern the trial
court’s determination of whether summary
judgment is appropriate; i.e. whether there is
any genuine issue of material fact, and
whether the movant is entitled to judgment
as a matter of law. Wright v. Louisiana
Power & Light, [06-1181 (La.3/9/07) ], 951
So.2d 1058[ ]; King v. Parish National
Bank, [04-337 (La.10/19/04) ], 885 So.2d
540, 545; Jones v. Estate of Santiago,
[03-1424 (La.4/14/04) ], 870 So.2d 1002[.]

Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880,
882-83 (footnote omitted).

4

Chastant v. Chastant, 13-1402, pp. 5-6 (La.App. 3 Cir. 4/23/14), 138 So.3d 801,

805, writ denied, 14-1508 (La. 10/22/14), __ So.3d ___. Additionally, in Chastant,

this court noted the following instruction of our supreme court:

A “genuine issue” is a “triable issue.” Toups v.
Hawkins, 518 So.2d 1077, 1079 (La.App. 5th Cir.1987)
(citing Brown [v. B & G Crane Service, Inc., 172 So.2d
708, 710 (La.App. 4 Cir.1965)]). More precisely, “[a]n
issue is genuine if reasonable persons could disagree. If
on the state of the evidence, reasonable persons could
reach only one conclusion, there is no need for a trial on
that issue. Summary judgment is the means for
disposing of such meretricious disputes.” W. Schwarzer,
Summary Judgment Under the Federal Rules: Defining
Genuine Issues of Material Fact, 99 F.R.D. 465, 481
(1983). In determining whether an issue is “genuine,”
courts cannot consider the merits, make credibility
determinations, evaluate testimony or weigh evidence.
Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788,
791 (La.App. 3d Cir.), writs denied, 525 So.2d 1048,
1049 (La.1988); Pace v. Zilka, 484 So.2d 771 (La.App.
1st Cir.), writ denied, 488 So.2d 691 (La.1986); Mecom
v. Mobil Oil Corp., 299 So.2d 380, 386 (La.App. 3d
Cir.), writ denied, 302 So.2d 308 (La.1974). “Formal
allegations without substance should be closely
scrutinized to determine if they truly do reveal genuine
issues of fact.” Brown, 172 So.2d at 710; Sally Beauty
Co. v. Barney, 442 So.2d 820, 822 (La.App. 4th
Cir.1983).

A fact is “material” when its existence or
nonexistence may be essential to plaintiff’s cause of
action under the applicable theory of recovery. Penalber
v. Blount, 550 So.2d 577, 583 (La.1989). “[F]acts are
material if they potentially insure or preclude recovery,
affect a litigant’s ultimate success, or determine the
outcome of the legal dispute.” South Louisiana Bank v.
Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991),
writs denied, 596 So.2d 211 (La.1992). Simply put, a
“material” fact is one that would matter on the trial on the
merits. Any doubt as to a dispute regarding a material
issue of fact must be resolved against granting the motion
and in favor of a trial on the merits. Sassone v. Elder,
626 So.2d 345, 352 (La.1993); Industrial Sand and
Abrasives, Inc. v. Louisville and Nashville Railroad Co.,
427 So.2d 1152, 1153-54 (La.1983) (collecting cases);
McCoy v. Physicians & Surgeons Hospital, Inc., 452
So.2d 308, 310 (La.App. 2d Cir.), writ denied, 457 So.2d

5

1194 (La.1984) (noting that “[s]ummary judgment may
not be used as a substitute for trial”).

Id. at 805-06 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27

(La. 7/5/94), 639 So.2d 730, 751).

Pursuant to La.R.S. 23:1032,5 an employee’s exclusive remedy against his

employer or a co-employee for injuries sustained in the course and scope of his

employment are limited to that provided in the Louisiana Workers’ Compensation

Act. The jurisprudence is replete with decisions on the issue of course and scope,

and it is well established that the general rule is that an employee who is traveling

to or from his work is not considered to be within the course and scope of his

employment. See McLin v. Indus. Specialty Contractors, Inc., 02-1539

(La. 7/2/03), 851 So.2d 1135. This rule, which has come to be known as the

“going-and-coming rule,” is subject to several jurisprudentially established

exceptions.6

5
Louisiana Revised Statutes 23:1032 provides as follows:

A. (1)(a) Except for intentional acts provided for in Subsection B, the
rights and remedies herein granted to an employee or his dependent on account of
an injury, or compensable sickness or disease for which he is entitled to
compensation under this Chapter, shall be exclusive of all other rights, remedies,
and claims for damages, including but not limited to punitive or exemplary
damages, unless such rights, remedies, and damages are created by a statute,
whether now existing or created in the future, expressly establishing same as
available to such employee, his personal representatives, dependents, or relations,
as against his employer, or any principal or any officer, director, stockholder,
partner, or employee of such employer or principal, for said injury, or
compensable sickness or disease.

....

C. The immunity from civil liability provided by this Section shall not
extend to:

(1) Any officer, director, stockholder, partner, or employee of such
employer or principal who is not engaged at the time of the injury in the normal
course and scope of his employment[.]
6
The supreme court in McLin, at 1140, n.1, listed the jurisprudentially created exceptions
to the going-and-coming rule as follows:

(1) If the accident happened on the employer’s premises;
6

Mr. Mackmer asserts that the application of the going-and-coming rule in

this case “defeats essential elements of [Lexington’s] affirmative defense of

immunity, as it dictates [Mr. Angelle] was not in the course and scope of his

employment at the time of the wreck.” On the contrary, Lexington maintains that

“the facts of this case fall squarely within the exceptions.

Following a hearing, the trial court concluded that there was “ample

evidence that [Mr. Angelle and Mr. Mackmer] were on their way to work.” In its

reasoning, the trial court took “judicial notice [there is] evidence that the work site

was in DeQuincy[,] and there was also evidence they were staying, while working

in DeQuincy, . . . in Sulphur.” Further, the trial court stated that “DeQuincy is

north of Sulphur where the accident happened while northbound on [Highway] 27

from Sulphur in the direction to DeQuincy.” However, based upon our de novo

(2) If the employee was deemed to be on a specific mission for the employer, such
as making a trip in the interest of his employer’s business or pursuant to his
employer’s order;

(3) If the employer had interested himself in the transportation of the employee as
an incident to the employment agreement either by contractually providing
transportation or reimbursing the employee for his travel expenses;

(4) If the employee was doing work for his employer under the circumstances
where the employer’s consent could be fairly implied;

(5) If the employee was hurt while traveling to and from one work site to another;

(6) If the employee was injured in an area immediately adjacent to his place of
employment and that area contained a distinct travel risk to the employee (the
“threshold doctrine”); and

(7) If the operation of a motor vehicle was the performance of one of the duties of
the employment of the employee.

See Yates v. Naylor Indus. Services, 569 So.2d 616 (La.App. 2 Cir.1990), writ
denied, 572 So.2d 92 (La.1991) (citing Michaleski v. Western Preferred Casualty
Company, 472 So.2d 18, 20 (La.1985)); Hughes v. Gearhart Industries, Inc., 552
So.2d 717, 719 (La.App. 1 Cir.1989), writ denied, 556 So.2d 1280 (La.1990);
Justice v. Sylvester, 499 So.2d 590, 592-93 (La.App. 5 Cir.1986), writ denied, 503
So.2d 491 (La.1987); Smith v. A.I.U. Insurance Company, 457 So.2d 868, 869
(La.App. 3 Cir.1984).

7

review of the evidence, although the trial court’s conclusion that “they were on

their way to work” may have been logical, it was not established by the evidence.

The facts that were established by the evidence are that the four men who

were riding in the vehicle on the morning of the accident, Mr. Mackmer,

Mr. Angelle, and Timothy and Dustin Bass, were all employed by Moncla.

Mr. Mackmer was the supervisor of the Moncla crew, which was working on a job

called the “Aminex job” in DeQuincy, Louisiana. Because of the duration of the

job, the crew was provided rooms by Moncla at a hotel in Sulphur, Louisiana,

where they returned after each work day. These facts are undisputed.

Also undisputed is that on the day of the accident, the four men left the hotel

in Sulphur, in a vehicle owned by Moncla, and provided to Mr. Mackmer for his

use. When the men left the hotel, Mr. Angelle was driving the vehicle, but the

evidence fails to establish why he was the driver. Mr. Angelle traveled northbound

on Highway 27, and the accident happened on this route, between Sulphur and

DeQuincy.

In brief, Mr. Mackmer argues that “[t]he missing evidence of where the crew

members were headed at the time of the accident is critical, as [Moncla’s] crew

members stated they often stopped to eat or to perform personal errands with the

truck and were not compensated for that time.” He argues that there is nothing “in

evidence establishing the purpose and destination of the trip[,]” and that there was

no evidence “that the men were on their way to work at the time of the wreck.”

The only persons who could potentially confirm where the crew was headed

when the accident occurred were the four occupants of the vehicle. Mr. Angelle

died on the day of the collision. Mr. Mackmer sustained severe injuries and

testified that he has no memory of the day the wreck occurred. Lastly, Dustin and

Timothy Bass supplied affidavits; however, their affidavits do not confirm, deny,
8

or establish where they were going or what they were doing when the accident

happened. According to their affidavits, the “crew on many occasions would stop

on the way to the job site to eat breakfast, to shop for personal items, or to run

other personal errands.” Both affiants aver that on the day of the accident “[a]fter

the crew left the hotel, they eventually proceeded to Highway 27 and headed

northbound when the accident at issue occurred.” Consequently, we agree with

Mr. Mackmer that this is a “threshold fact” that is not established by either party.

This is a disputed question of material fact.

Finally, in brief, both parties discussed at length whether Moncla paid

Mr. Angelle’s travel expenses and a per diem allowance. Such evidence is

discussed for the purpose of establishing whether the facts trigger a jurisprudential

exception to the going-and-coming rule. Mr. Mackmer argues that the payroll

records indicate that on the day of the wreck, Mr. Angelle was paid “travel time.”

However, according to the deposition of Cain Moncla, he personally wrote that

notation in the payroll records after Mr. Angelle’s death for the purpose of

financially assisting the Angelle family. Mr. Mackmer argues that this payment

“was a gift to provide financial assistance to [Mr.] Angelle’s family in light of [his]

death[,]” and, therefore, Moncla’s payment of Mr. Angelle’s “‘travel pay’ was not

connected to travel.” On the other hand, Lexington contends that Mr. Angelle was

“driving a company vehicle and being paid for his travel time.” This is a disputed

question of material fact.

Mr. Mackmer also argues that according to the testimony of Leon Moncla,

Moncla’s payment of a per diem amount to Mr. Angelle was not based upon the

location or distance of the job. Rather, Leon Moncla stated that Moncla paid a per

diem amount for certain work requiring “a job ticket.” He explained that a

“ticketed” job was one in which a Moncla employee performed work for an
9

operator of another company, wherein the operator would provide a work-order

ticket. He further stated that the job in DeQuincy was not a “ticketed” job.

Lexington counters, stating that on the day of the accident, transportation for the

crew was provided by Moncla, the crew was “being paid travel that started the

moment they left their hotel, and [that they] were entitled to a per diem.” This is a

disputed question of material fact.

Based upon the evidence, Mr. Mackmer contends that he has established that

the going-and-coming rule applies in this case and that Lexington has failed to

establish the applicability of an exception to the rule. For the reasons set forth

above, we find that there are genuine issues of material fact relative to the purpose

of travel and destination of the crew when the accident happened. Additionally,

we find that genuine issues of material fact remain as to whether Moncla was

compensating Mr. Angelle by paying his travel expenses and a per diem.

Therefore, given the factual disputes that remain, it has neither been established

that the going-and-coming rule applies in this case, nor has it been established that

an exception to the rule applies in this case.

Considering the record before us in the instant matter, we find that there

remain disputed issues of material fact that are germane to the issue of whether or

not Mr. Angelle was in the course and scope of his employment with Moncla when

the accident occurred. Since these facts are critical to Lexington’s affirmative

defense of tort immunity and Mr. Mackmer’s entitlement, vel non, to recovery,

they are “material” facts which preclude the grant of summary judgment. For the

same reasons, Mr. Mackmer is likewise not entitled to summary judgment in his

favor on the issue of liability.

10

DECREE

For the foregoing reasons, we reverse the trial court’s grant of summary

judgment in favor of Defendants, National Union Fire Insurance Company of

Pittsburgh, Pennsylvania, and Lexington Insurance Company; we affirm the trial

court’s denial of Keith William Mackmer’s motion for partial summary judgment;

and, we remand the matter to the trial court for further proceedings consistent with

this opinion. Costs of this appeal are assessed equally between the parties.

REVERSED IN PART;
AFFIRMED IN PART;
AND REMANDED.

11