Julia B. Voinche v. Joseph Beaud Capps

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-671

JULIA B. VOINCHE, ET AL.

VERSUS

JOSEPH BEAUD CAPPS, ET AL.

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2012-7965 – DIVISION B
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

REVERSED, RENDERED, AND REMANDED FOR FURTHER
PROCEEDINGS.

David M. Ellison, Jr.
Ellison & Ellison
336 Louisiana Avenue
Baton Rouge, LA 70802
(225) 387-5119
COUNSEL FOR DEFENDANTS/APPELLANTS:
Beaud & Fontaine, L.L.C.
Beaud & Capps, L.L.C.
Beaud Farms, L.L.C.
Beaud Farms, A Partnership
Charles Beaud, L.L.C.

Stacey Moak
Jonathan D. Mayeux
Christopher W. Stidham
James C. Underhill
Stacy Moak & Associates
Post Office Box 77651
Baton Rouge, LA 70879-7651
(225) 751-6300
COUNSEL FOR DEFENDANT/APPELLANT:
Charles Beaud, Individually

Andrew L. Plauché, Jr.
James K. Ordeneaux
Attie Babin Carville
Plauché, Maselli, Parkerson, LLP
701 Poydras Street, Suite 3800
New Orleans, LA 70139
(504) 582-1142
COUNSEL FOR DEFENDANT/APPELLANT:
Louisiana Farm Bureau Casualty Company

Rodney M. Rabalais
Post Office Box 447
Marksville, LA 71351
(318) 253-4622
COUNSEL FOR PLAINTIFFS/APPELLEES:
Celeste Voinche Gauthier
Samantha K. Voinche
Julia B. Voinche
Christopher G. Voinche

Kenny L. Oliver
David Oliver Way
Oliver & Way
Post Office Box 82447
Lafayette, LA 70598-2447
(337) 988-3500
COUNSEL FOR DEFENDANTS/APPELLEES:
Joseph Beaud Capps
Permanent General Assurance Company

W. Ransom Pipes
Hannah, Colvin, & Pipes, L.L.P.
10626 Timberlake Drive
Baton Rouge, LA 70810
(225) 766-8240
COUNSEL FOR DEFENDANT/APPELLEE:
Travelers Property Casualty Company of America

Donald R. Klotz, Jr.
Casler Bordelon & Lawler
2450 Severn Avenue, Suite 200
Metairie, LA 70001
(504) 434-3101
COUNSEL FOR DEFENDANTS/APPELLEES:
Joseph Beaud Capps
Progressive Security Insurance Co.

Seth Andrew Schmeeckle
Daniel Bernard Centner
Lugenbuhl, Wheaton, Peck, Rankin & Hubbard
601 Poydras Street, Suite 2775
New Orleans, LA 70130
(504) 568-1990
COUNSEL FOR DEFENDANT/APPELLEE:
Travelers Property Casualty Company of America

AMY, Judge.

After Nickie Voinche1 died as a result of a motor vehicle accident allegedly

caused by Joseph Beaud Capps, Mr. Voinche’s heirs brought this wrongful death

and survival action. The instant issue concerns a motion for summary judgment

filed by Mr. Capps and his insurer, seeking a determination that he was in the

course and scope of his employment at the time of the accident. Charles Beaud,

one of Mr. Capps’ purported employers, filed a cross motion for summary

judgment seeking a determination that he was not Mr. Capps’ employer and to be

dismissed from the case. The trial court granted Mr. Capps’ motion for summary

judgment and denied Mr. Beaud’s motion for summary judgment. Mr. Beaud, his

insurer, and Beaud Farms now appeal. For the following reasons, we reverse,

render judgment, and remand for further proceedings.

Factual and Procedural Background

According to the allegations in the record, at approximately six o’clock a.m.

on a Saturday morning in September 2011, Joseph Beaud Capps and Brian Major

were driving northbound and Nickie Voinche was driving southbound on

Louisiana Highway 1 in Pointe Coupee Parish. Mr. Capps was driving a vehicle

he had borrowed from a friend, Joseph Garrett. Mr. Voinche was driving a truck

owned by his employer, Gilchrist Construction Co., LLC. Mr. Major’s vehicle was

in front of Mr. Capps’ vehicle, and, when Mr. Major slowed down to make a right-

hand turn, Mr. Capps struck Mr. Major’s vehicle on the driver’s side rear corner,

went to the center line, and struck Mr. Voinche’s vehicle head-on. Mr. Voinche

was killed as a result of the accident.

1
Mr. Voinche’s name is also spelled as “Nicky” in the record. We use the spelling in the
petition.

The plaintiffs, Julia Voinche, Christopher Voinche, Celeste Voinche

Gauthier, and Samantha Voinche, are Mr. Voinche’s wife and children. They filed

the pending wrongful death and survival action against Mr. Capps, Progressive

Security Insurance Company, Permanent General Insurance Company, Louisiana

Farm Bureau Insurance Company, Charles Beaud d/b/a Beaud Farms, Beaud

Farms (a partnership comprised of Charles Beaud, LLC, Beaud & Capps, LLC,

and Beaud & Fontaine, LLC), and Travelers Property Casualty Company of

America. Mr. Capps and Progressive subsequently filed a motion for summary

judgment, alleging that there was no genuine issue of material fact and that they

were entitled to judgment as a matter of law with regard to the issue of whether

Mr. Capps was in the course and scope of his employment at the time of the

accident. Mr. Beaud filed a cross-motion for summary judgment, seeking a

determination that he was not Mr. Capps’ employer.

After a hearing, the trial court granted Mr. Capps’ and Progressive’s motion

for summary judgment and denied Mr. Beaud’s cross-motion for summary

judgment.

Mr. Beaud and the Beaud Farms partnership appeal, asserting as error that:

1. The trial court committed legal error when it granted Joseph Beaud Capps’
and Progressive Security Insurance Company’s motion for partial summary
judgment since disputed issues of material fact exist as to whether Joseph
Beaud Capps was in the course and scope of his employment with Beaud
Farms and/or Charles Beaud, individually[,] at the time of the September 17,
2011 accident.

2. The trial court and this Court committed legal error when the trial court
denied that part of Charles Beaud’s cross-motion for summary judgment
relating to whether Joseph Beaud Capps was in the course and scope of his
employment with Charles Beaud, individually, and also when this Court
denied Charles Beaud’s supervisory writ application on February 21, 2014,
since no genuine issue of material fact exist[s] as to whether Joseph Beaud
Capps was in the course and scope of employment with Charles Beaud,
individually[,] at the time of the September 17, 2011 accident.

2

3. The trial court and this Court committed legal error when the trial court
denied the entirety of Charles Beaud’s cross-motion for summary judgment
relating to whether Joseph Beaud Capps was in the course and scope of any
employment with Beaud Farms and/or Charles Beaud, individually, and also
when this Court denied Charles Beaud’s supervisory writ application on
February 21, 2014, since Joseph Beaud Capps’ testimony concerning his
alleged stop at the shop prior to the accident and his alleged call to Arturo
Navarro about work prior to the accident amounts to nothing more than a
mere denial and not substantiated by any other evidence in the record.

Additionally, Louisiana Farm Bureau, Mr. Beaud’s insurer, appeals, asserting

as error that:

1. The Trial Judge erred in granting the Motion for Summary Judgment
of Joseph Beaud Capps and Progressive Security Insurance Company
(and thereby finding that Joseph Beaud Capps was within the course
and scope of his employment with Beaud Farms when the accident
occurred) by impermissibly weighing voluminous competing
evidence. Where there are genuine material issues of fact as to
whether or not an alleged tortfeasor was in the course and scope of his
employment, summary judgments are improper. (Citation Omitted.)

2. The Trial Judge improperly ignored precise and uncontradicted
evidence from both sides which supported the Cross Motion for
Summary Judgment based upon Joseph Beaud Capps never being
employed by Charles Beaud, individually, and thereby never in the
course and scope of employment of Charles Beaud, individually. The
Charles Beaud Motion for Summary Judgment should have been
granted because Charles Beaud and Joseph Beaud Capps agreed that
Joseph Beaud Capps was not an employee of Charles Beaud
individually. (Citation Omitted.)

Discussion

Summary Judgment

Summary judgment is designed to secure the just, speedy and inexpensive

determination of actions and is now favored in our law. La.Code Civ.P. art.

966(A)(2). The appellate courts review summary judgments de novo, using the

same criteria which the trial court uses to determine if summary judgment is

appropriate. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131. A party is

entitled to summary judgment if “the pleadings, depositions, answers to

3

interrogatories, and admissions, together with the affidavits, if any, admitted for

purposes of the motion for summary judgment, 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)(2). “Facts are material if they determine the outcome

of the legal dispute.” Baggett v. Brumfield, 99-1484, p. 6 (La.App. 3 Cir. 3/1/00),

758 So.2d 332, 336, writ denied, 00-927 (La. 5/12/00), 761 So.2d 1292.

The burden of proof remains with the moving party, although, if the moving

party will not bear the burden of proof at trial, “its burden on the motion does not

require it to negate all essential elements of the adverse party’s action, 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.” Richard, 874 So.2d at 137.

Thereafter, the adverse party must provide sufficient factual support to show that

they will be able to satisfy their evidentiary burden of proof at trial; otherwise,

there is no genuine issue of material fact. Id. (citing La.Code Civ.P. art.

966(C)(2)). Additionally, pursuant to La.Code Civ.P. art. 967(B):

When a motion for summary judgment is made and supported
as provided above, an adverse party may not rest on the mere
allegations or denials of his pleading, but his response, by affidavits or
as otherwise provided above, must set forth specific facts showing
that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be rendered against him.

Course and Scope of Employment

Mr. Capps’ motion for summary judgment addresses whether or not he was

within the course and scope of his employment at the time of the accident.

Pursuant to La.Civ.Code art. 2320, an employer is “answerable for the damage

occasioned by [its] servants . . . in the exercise of the functions in which they are

employed.” More specifically, an employer will be liable for its employee’s torts

4

if the employee was acting within the course and scope of his employment.

Timmons v. Silman, 99-3264 (La. 5/16/00), 761 So.2d 507.

In Richard, 874 So.2d at 137-38, the supreme court reiterated the basic

principles concerning whether an employee’s conduct was within the course and

scope of his employment, stating:

In determining whether a particular accident may be associated with
the employer’s business enterprise, the court must essentially decide
whether the particular accident is a part of the more or less inevitable
toll of a lawful enterprise. Ermert [v. Hartford Ins. Co., 559 So.2d
467, 476 (La.1990)], citing 5 F. Harper, F. James & O. Gray, The Law
of Torts, § 26.7, at 28 (2d ed.1986). When considering which risks
the employer must bear under vicarious liability, the proper test bears
resemblance to that which limits liability for workers’ compensation,
because the employer should be held to anticipate and allow for risks
to the public that “arise out of and in the course of” his employment of
labor [sic]. Ermert, 559 So.2d at 476, citations omitted. While the
course of employment test refers to time and place, the scope of
employment test examines the employment-related risk of injury.
Russell v. Noullet, 98-0816, p. 4 (La.12/1/98), 721 So.2d 868,
871(reh’g denied 1/15/99). The inquiry requires the trier of fact to
determine whether the employee’s tortious conduct was so closely
connected in time, place and causation to his employment-duties as to
be regarded a risk of harm fairly attributable to the employer’s
business, as compared to conduct motivated by purely personal
considerations entirely extraneous to the employer’s interests. Id.

Phrased another way, an employee’s conduct is considered to be within the

course and scope of his employment if it 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.” Orgeron v.

McDonald, 93-1353, p. 4 (La. 7/5/94), 639 So.2d 224, 226-27. An employer is

generally not liable for acts committed by its employee while the employee is

going to or coming from work. Id. See also Hargrave v. Delaughter, 08-1168

(La.App. 3 Cir. 3/4/09), 10 So.3d 245. However, application of this rule becomes

more complicated in cases where the employee is dispatched to different work

5

locations, especially when the employee is not required to “check-in” at a central

location before being dispatched to the work site for the day. Orgeron, 639 So.2d

224.

In making that determination, the court should consider factors including: 1)

the employer’s payment of wages to the employee; 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 of the employer; 5) the relationship

between the act and the employer’s business; 6) what benefits the employer

received from the employee’s act; 7) the employee’s motivation in performing the

act; and 8) the employer’s reasonable expectation that the employee would perform

the act. Orgeron, 639 So.2d 224. Accidents have been found to be within the

course and scope of employment when the employer provides transportation used

by the employee to go to and from work, pays wages or expenses for the time spent

traveling in the vehicle, or the operation of the vehicle was incidental to the

performance of some employment responsibility. Woolard v. Atkinson, 43,322

(La.App. 2 Cir. 7/16/08), 988 So.2d 836 (citing Vaughan v. Hair, 94-86 (La.App. 3

Cir. 10/5/94), 645 So.2d 1177, writ denied, 95-123 (La. 3/10/95), 650 So.2d 1186).

The third exception has usually been found to be applicable when the employer

retains some control over the employee when the employee is in his personal

vehicle. Baggett, 758 So.2d 332.

Our review of the record reveals that the determination of whether Mr.

Capps was within the course and scope of his employment is rife with genuine

issues of material fact and, accordingly, summary judgment is inappropriate with

regard to this matter. The uncontested facts in the record indicate that, although

their operations are spread out over multiple tracts in three separate parishes,

6

Beaud Farms 2 maintains a farm shop at Sugarland Plantation in Pointe Coupee

Parish. Beaud Farms provides housing at that location to several of its employees,

including Mr. Capps. On the date of the accident, operations were to be conducted

at Belleview Farm in Lettsworth. Mr. Capps had not spent the night at the housing

provided by Beaud Farms, but instead spent the night in New Roads. The record

indicates that Mr. Capps was expected to begin work at 5:30 a.m. Although the

record does not establish exactly what time Mr. Capps left New Roads, it indicates

that, approximately between 5:00 a.m. and 5:30 a.m., Mr. Capps left New Roads to

travel to work. The accident occurred shortly after 6:00 a.m.

However, there is conflicting evidence concerning both Mr. Capps’ actions

between the time he left New Roads and the accident and whether Beaud Farms

took an interest in Mr. Capps’ transportion. With regard to Mr. Capps’ actions

between the time he left New Roads and the accident, Mr. Capps contends that he

stopped at Sugarland and picked up a box of cutter blades and filled his personal

water cooler before continuing on his way to Belleview. However, one of Beaud

Farms’ other employees, Arturo Navarro, testified in his deposition that he was at

Sugarland that morning and that he left the shop at approximately 5:15 a.m. to go

to Belleview. Mr. Navarro testified that he did not see Mr. Capps at the shop

before he left. According to Mr. Navarro, there was no reason for Mr. Capps to

stop and pick up the cutter blades because Mr. Navarro’s truck contained

everything needed to maintain the cutters. Further, Mr. Navarro testified that he

performed maintenance on the cutters every evening and that Mr. Capps had not
2
We note that Mr. Beaud’s cross-motion for summary judgment addresses whether Mr.
Capps was an employee of Mr. Beaud, individually, or Beaud Farms, a partnership. For
convenience, in addressing whether the trial court erred in granting the motion for summary
judgment with regard to whether Mr. Capps was within the course and scope of his employment,
we refer to his employer as “Beaud Farms” without addressing whether that employment was
with Mr. Beaud, individually, or the Beaud Farms partnership.

7

informed him that the cutter needed new blades. In addition to this testimony,

there was deposition testimony that shortly after the accident Mr. Capps said that

he was going “straight” to Belleview and that he did not say that he stopped

anywhere on the way there. Further, the third driver involved in the accident, Mr.

Major, testified that he did not recall seeing a water cooler in the back of Mr.

Capps’ truck after the accident, and Mr. Beaud testified that there were no cutter

blades in the truck.

Another dispute concerns whether a phone call made by Mr. Capps to Mr.

Navarro at approximately 5:50 a.m., i.e., some few minutes before the accident,

was for personal or business purposes. It is undisputed that Mr. Capps was an

hourly employee and that, as a supervisor, he conducted business for Beaud Farms

on his cell phone. According to Mr. Beaud, Mr. Capps’ time would start

“whenever he started working for me.” Mr. Capps testified in his deposition that

he called Mr. Navarro to determine whether the other employees had all of the

equipment they needed, including coolers and that his timekeeping would have

started when he called Mr. Navarro. However, Mr. Navarro testified that Mr.

Capps only called to instruct Mr. Navarro to find an oil cap for Mr. Capps’

personal vehicle.

The record indicates that Beaud Farms’ laborers started getting paid for their

time when they left the shop at Sugarland. Thus, whether Mr. Capps stopped at

Sugarland is material to the determination of whether he was in the course and

scope of his employment at the time of the accident. Further, whether Beaud

Farms took an interest in providing repairs for Mr. Capps’ personal vehicle is in

dispute. Thus, whether the content of Mr. Capps’ phone call was of a business or

8

personal nature is material to whether his commute transitioned to one in the

course and scope of his employment at that point.

It is not the function of a trial court to weigh conflicting evidence in

deciding a motion for summary judgment. Edwards v. Larose Scrap & Salvage,

Inc., 10-596 (La.App. 3 Cir. 12/8/10), 52 So.3d 1009. Given the conflicts in the

evidence about whether Mr. Capps stopped at Sugarland before continuing to

Belleview and whether his phone call to Mr. Navarro was of a business or personal

nature, we find that there is a genuine issue of material fact with regard to these

determinations.

We must also consider whether Beaud Farms took an interest in Mr. Capps’

transportation such that he would be in the course and scope of his employment at

the time of the accident. It is undisputed that Beaud Farms previously provided

Mr. Capps with a company truck. However, Mr. Capps was involved in another

car accident that destroyed the company truck approximately two weeks before the

accident at issue herein. According to Mr. Beaud, he refused to provide Mr. Capps

with another company truck, and he told Mr. Capps that he was not allowed to

drive any vehicle owned by Beaud Farms and that he needed to obtain rides from

other Beaud Farms employees. Mr. Beaud also testified that he was aware that Mr.

Capps was using a truck that he borrowed from Mr. Garrett, but that Mr. Capps

was not supposed to put gas in the truck from the farm tank and that he “wanted no

part of that truck.”

Mr. Capps contends that Beaud Farms provided him with gas and repairs for

the borrowed truck. He testified in his deposition that he got gas from the farm

tank and that he charged the Beaud Farms account for repairs for the borrowed

truck’s lug nuts. However, he conceded that he did not ask Mr. Beaud for

9

permission to charge the repairs. Further, although Mr. Capps contends that Beaud

Farms paid him for his transportation time and that he was “on call” at all times, he

testified in his deposition that his timekeeping would have started when he called

Mr. Navarro. Additionally, Amy Beaud testified in her deposition that the

laborers’ timekeeping started when they left Sugarland to go to Belleview.

Given this evidence, we find that there are genuine issues of material fact

with regard to whether Mr. Capps was commuting to work in his personal vehicle,

without being paid for that time or compensated for any expenses for the vehicle,

or whether Beaud Farms took an interest in Mr. Capps’ transportation sufficient to

find that his commute was within the course and scope of his employment.

Thus, having found that genuine issues of material fact remain with regard to

whether Mr. Capps was within the course and scope of his employment, we find

that the trial court erred in granting Mr. Capps and Progressive’s motion for

summary judgment.

Employment by Mr. Beaud or Beaud Farms

Mr. Beaud, Farm Bureau, and the Beaud Farms partnership contend that the

trial court erred in denying his motion for summary judgment with regard to

whether Mr. Capps was employed by Mr. Beaud, individually, as opposed to the

Beaud Farms partnership. Mr. Beaud requests that he be dismissed from the case.

Having reviewed the record, we observe that the sole testimony in the record

concerning this issue is Mr. Beaud’s deposition testimony. That testimony was

that Mr. Beaud did not farm under any other name than “Beaud Farms” which was

a partnership comprised of three limited liability companies, Charles Beaud, LLC,

Beaud & Capps, LLC, and Beaud & Fontaine, LLC. Mr. Beaud also testified that

Mr. Capps was paid from the Beaud Farms account and that Beaud Farms

10

contracted for the houses where the laborers stayed. The opposing parties

presented no evidence indicating that Mr. Capps was employed by Mr. Beaud

personally, and we note that the plaintiffs concede in their brief that “Mr. Capps

was working for Beaud Farms[.]”

Pursuant to La.Code Civ.P. art. 966(C)(2), the burden of proof with regard to

this issue initially lay with Mr. Beaud, the moving party. However, he has

successfully pointed out an absence of factual support for this issue, and the

nonmoving parties have failed to provide sufficient factual support to show that

they will be able to satisfy their evidentiary burden of proof at trial. Accordingly,

there is no genuine issue of material fact with regard to this issue. Richard, 874

So.2d 131.

Accordingly, the trial court erred in denying Mr. Beaud’s motion for

summary judgment with regard to whether Mr. Beaud, individually, was Mr.

Capps’ employer. Thus, we enter judgment on this sole issue below. However, we

observe that, subsequent to Mr. Beaud’s cross-motion for summary judgment

seeking dismissal from this matter, the plaintiffs filed a supplemental and

amending petition asserting claims against Mr. Beaud in his individual capacity for

negligent entrustment, negligent hiring, and negligent supervision. Therefore,

although we find that Mr. Beaud is entitled to summary judgment on the sole issue

of whether Mr. Beaud, individually, is Mr. Capps’ employer, because the record

before us indicates that these new claims are still pending, we find that it is

inappropriate to dismiss Mr. Beaud from this litigation at this time and deny his

request for dismissal.

11

DECREE

For the foregoing reasons, the trial court’s judgment granting the motion for

summary judgment filed by Joseph Beaud Capps and Progressive Security

Insurance Company is reversed and remanded for further proceedings. The trial

court’s judgment denying the cross-motion for summary judgment filed by Charles

Beaud is reversed. Finding that there is no genuine issue of material fact with

regard to Charles Beaud, individually, not being the employer of Joseph Beaud

Capps, and that Mr. Beaud is entitled to judgment as a matter of law, we render

judgment granting Mr. Beaud’s cross-motion for summary judgment as to this sole

issue. Costs of this appeal are assessed to the appellees, Joseph Beaud Capps and

Progressive Security Insurance Company.

REVERSED, RENDERED, AND REMANDED FOR FURTHER
PROCEEDINGS.

12