Dustin William Bowdoin v. Whc Maintenance Services, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-150

DUSTIN WILLIAM BOWDOIN

VERSUS

WHC MAINTENANCE SERVICES, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20145420
HONORABLE DAVID M. SMITH, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.

AFFIRMED IN PART, REVERSED IN PART
AND REMANDED.

Robert E. Kerrigan, Jr.
Raymond Lewis
Deutsch, Kerrigan, & Stiles & Stiles
755 Magazine Street
New Orleans, LA 70130
(504) 581-5141
COUNSEL FOR DEFENDANT/APPELLANT:
AIG Specialty Insurance Company

Edwin G. Preis, Jr.
M. Benjamin Alexander
Preis PLC
Post Office Drawer 94-C
Lafayette, LA 70509
(337) 237-6062
COUNSEL FOR DEFENDANTS/APPELLANTS:
Zurich American Insurance Company
WHC Maintenance Services, Inc.
WHC, LLC

Louis C. LaCour, Jr.
Adams and Reese, LLP
4500 One Shell Square
New Orleans, LA 70139
(504) 585-0328
COUNSEL FOR DEFENDANT/APPELLANT:
AIG Specialty Insurance Company

Chad E. Mudd
David P. Bruchhaus
M. Keith Prudhomme
Matthew P. Keating
Mudd & Bruchhaus, LLC
410 E. College Street
Lake Charles, LA 70605
(337) 562-2327
COUNSEL FOR PLAINTIFF/APPELLEE:
Dustin William Bowdoin

SAUNDERS, Judge.

This is a case involving a motor vehicle accident in which Plaintiff sustained

serious injuries. Plaintiff, who resides in Louisiana, was recruited by a pipeline

employee to work with him at a pipeline construction and maintenance company

performing work in Florida. As agreed, the employee picked Plaintiff up in

Louisiana to transport him to the job location in Orlando, Florida. Prior to arriving

in Orlando, the employee’s personal vehicle in which they were traveling, broke

down twice. Plaintiff attempted to assist the employee in towing the inoperable

vehicle by steering it as the employee pulled it with a company vehicle and towing

assembly. Ultimately, the employee accelerated to 55 miles per hour, which

caused Plaintiff to lose control of the inoperable vehicle, and the vehicle flipped.

As a result, Plaintiff sustained severe injuries resulting in paraplegia.

Following the accident, Plaintiff sued the employee’s employer and its

insurers claiming that the employee was in the course and scope of his employment

at the time of the accident which rendered his employer vicariously liable for

Plaintiff’s injuries. The employer and its insurers filed a motion for summary

judgment alleging that employer’s employee was not in the course and scope of

employment at the time of the accident. In response, Plaintiff filed a motion for

summary judgment that the employee was in the couse and scope of his

employment at the time of the accident. The trial court granted Plaintiff’s motion

and denied the employer and its insurers’ motion. The employer and its insurers

have appealed.

FACTS AND PROCEDUREAL HISTORY:

Plaintiff, Dustin William Bowdoin (“Bowdoin”), was recruited by Devin

Badon (“Badon”), an employee of WHC Maintenance Services, Inc. (“WHC”).

WHC is a large pipeline construction and maintenance company based in

Louisiana which performs work on gas pipelines throughout the country. At the

time, WHC was performing projects at multiple locations throughout the state of

Florida (the “Florida projects”), and was experiencing a labor shortage.

While working on the Florida projects, Badon was employed by WHC as a

temporary laborer with an hourly wage. WHC paid crewmembers a per diem for

their travel and lodging expenses, as travel and effectively relocating are critical

components of the work of pipeline construction for workers like Badon, who are

required to move from project to project. The project for which Bowdoin had been

recruited was scheduled to begin on Tuesday, May 27, 2014.

On Friday, May 23 2014, Badon, having completed work on a project in

Perry, Florida, left his camper trailer he had previously towed there for the purpose

of staying at campsites near the various WHC job locations, and drove to

Louisiana where he picked up Bowdoin. Badon’s intent was to get back from

Louisiana to the Perry, Florida campsite, retrieve his camper, and relocate it to the

Orlando job location so that he and Bowdoin would be staged and ready to work

on the date the project was scheduled to begin. En route back to Florida, Badon’s

vehicle broke down twice. The first time, Roy O’Quinn (“O’Quinn”), a WHC

labor foreman whose responsibilities included making sure WHC employees made

it to the next job site, came to Badon’s aid in a WHC company vehicle, and, using

a WHC towing assembly, towed Badon’s vehicle to an auto parts store so that he

could have it repaired. When Badon’s efforts to repair the vehicle failed, O’Quinn

towed Badon’s vehicle to the Perry campsite. Badon and Bowdoin then rode back

to Orlando, Florida, with O’Quinn. The following day, Saturday, May 24, 2014,

on which Badon and the entire WHC crew was being paid a per diem, WHC

Foreman Chris Aguillard (“Aguillard”) loaned Badon his WHC company vehicle

and towing assembly for the purpose of retrieving Badon’s vehicle and camper
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from the Perry campsite and relocating it to the Orlando job location. Bowdoin

assisted Badon by attempting to steer Badon’s inoperable vehicle as Badon towed

it. When Badon accelerated to 55 miles per hour, Bowdoin lost control of the

inoperable vehicle, and it flipped. As a result, Bowdoin sustained severe injuries

resulting in paraplegia.

Bowdoin filed suit against WHC, Zurich American Insurance Company, and

AIG Specialty Insurance Company (collectively “Defendants”) alleging, inter alia,

that Badon was in the course and scope of his employment with WHC, and, as

such, WHC was vicariously liable unto him for Badon’s actions. Defendants filed

a motion for summary judgment asserting that Badon was not acting within the

course and scope of his employment with WHC at the time of the accident.

Bowdoin filed an opposition to that motion and a cross motion for summary

judgment asserting that Badon was within the course and scope of his employment

with WHC at the time of the accident.

The trial court denied Defendant’s motion and granted Bowdoin’s motion

finding that Badon was within the course and scope of his employment with WHC

at the time of the accident. Defendants filed this appeal asserting two assignments

of error.

ASSIGNMENTS OF ERROR:

1. The District Court improperly granted summary judgment in Plaintiff’s
favor despite the existence of evidence squarely contradicting the factual
allegations relied upon by Plaintiff in support of his argument that Devin
Badon was within the course and scope of his employment with WHC at
the time of the accident, thereby establishing genuine issues of disputed
fact and precluding the availability of summary judgment in Plaintiff’s
favor.

2. The District Court improperly denied summary judgment in Defendants’
favor when the disputed facts relied on by Plaintiff are immaterial to the
question of course and scope, and the undisputed material facts
established that Devin Badon was outside the course and scope of his
employment with WHC at the time of the accident.
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ASSIGNMENT OF ERROR NUMBER ONE:

Defendants assert that the trial court erred in granting Bowdoin’s motion for

summary judgment, due to existing evidence that contradicts Bowdoin’s alleged

undisputed material facts, precluding the availability of summary judgment in

Bowdoin’s favor. We find merit to this assertion.

Appellate courts review summary judgments de novo, under the same

criteria that govern the trial court’s determination of whether summary judgment is

appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544.

In order to prevail on a motion for summary judgment, the moving party

must show that “there [is] no genuine issues of material fact and that he is entitled

to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3). “A fact is

‘material’ when its existence or nonexistence may be essential to [the] plaintiff's

cause of action.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.

7/5/94), 639 So.2d 730, 751. “A genuine issue of material fact is one as to which

reasonable persons could disagree; if reasonable persons could reach only one

conclusion, there is no need for trial on that issue and summary judgment is

appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12), 94 So.3d

750, 755 (superseded by statute on other grounds).

When considering a motion for summary judgment, the court cannot

“consider the merits, make credibility determinations, evaluate testimony[,] or

weigh evidence.” Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10),

31 So.3d 1012, 1014 (quoting Suire v. Lafayette City–Parish Consol. Gov’t, 04-

1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48). Moreover, although “summary

judgments are now favored, factual inferences reasonably drawn from the evidence

must be construed in favor of the party opposing the motion, and all doubt must be

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resolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La. 12/8/00),

775 So.2d 1049, 1050.

[A]n employer is answerable for the damage occasioned by its
servants in the exercise of the functions in which the servant is
employed. Specifically, an employer is liable for its employee’s torts
committed if, at the time, the employee was acting within the course
and scope of his employment. An employee is acting within the
course and scope of his employment when the employee’s action 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.” An employee may be
within the course and scope of his employment yet step out of that
realm while engaging in a personal mission.

Timmons v. Silman, 99-3264, p. 4 (La. 5/16/00), 761 So.2d 507, 510 (citations

omitted). Courts are to consider four factors when assessing vicarious liability set

forth in LeBrane v. Lewis, 292 So.2d 216 (La.1974), and summarized by the

supreme court in Edmond v. Pathfinder Energy Services, Inc., 11-151 (La.App. 3

Cir. 9/21/11), 73 So.3d 424, writ denied, 11-2234 (La.12/16/11), 76 So.3d 1204.

They are whether the tortious act: (1) was primarily employment rooted; (2) was

reasonably incidental to the performance of the employee’s duties; (3) occurred on

the employer’s premises; and (4) occurred during the hours of employment.

Edmond, 73 So.3d at 426.

It is not necessary that each factor be present in each case, however each

must be weighed on its own merits. Lemaire v. Richard, 13-581 (La.App. 3 Cir.

11/6/13), 125 So.3d 558. The determinative question is whether “the 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 with conduct motivated by purely personal

considerations entirely extraneous to the employer’s interests.” LeBrane, 292

So.2d at 218.

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In the case before us, Defendants aver that Bowdoin’s motion for summary

judgment was improperly granted because it relied upon disputed facts. After

reviewing the record, we find that there is conflicting testimony as to whether

Badon was directed by WHC to travel to Louisiana to retrieve Bowdoin for work

on the next WHC project. Badon testified that he was directed to do so while this

testimony was contradicted by the testimonies of WHC employees, Rusty Smith

and Chris Aguillard. In order to grant a summary judgment, as the trial court did

in this case, one would have to give credence to Badon’s testimony regarding

whether he was directed to retrieve Bowdoin by WHC over that of Smith and

Aguillard. Such a finding requires a credibility determination made to evaluate or

weigh testimony which is impermissible when considering the merits of a motion

for summary judgment.

On its own, an impermissible weighing of evidence does not defeat

summary judgment. The fact impermissibly weighed must be a material fact.

Whether WHC directed Badon to retrieve Bowdoin is material because it shows

the extent of control, if any, WHC was exerting over Badon in his endeavor to

bring Bowdoin to Florida to work for it. This is certainly material as it is a factor

to consider when contemplating whether Badon was in the course and scope of his

employment with WHC when the accident occurred.

Moreover, there is conflicting testimony as to why Badon was being paid on

the day of the accident. According to Badon’s testimony, he was being paid wages

and per diem in pursuit of his mission to deliver Bowdoin to the jobsite. Badon’s

statement taken after the accident contradicts this testimony wherein he stated that

he was getting paid that day despite no construction ongoing in order to correct an

accounting error with the crew’s per diem from previous days of work. Badon’s

previous statement is corroborated by the testimony of other WHC employees who
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also stated that the entire crew was being paid wages and per diem that day in

order to make up for an accounting error in the paychecks the entire crew had been

receiving. Thus, in order to consider it a fact that Badon was being paid on the day

of the accident to specifically retrieve Bowdoin for WHC would require

impermissible weighing of evidence. This fact is also material because it shows

whether Badon’s accident occurred while he was on the clock, which is a factor in

the temporal element present in a course and scope analysis.

Given the above, we cannot say that there is no genuine issue of material

fact as to whether Badon was in the course and scope of his employment with

WHC when the accident occurred that injured Bowdoin. Accordingly, summary

judgment was not proper in this case at this time, and we reverse the trial court’s

grant of Bowdoin’s motion.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendants assert that the trial court incorrectly denied their motion for

summary judgment that Badon was not in the course and scope of his employment

with WHC when the accident occurred because the disputed facts relied on by

Bowdoin to defeat their motion are immaterial to course and scope analysis in this

case. We find no merit to this assertion.

As stated in assignment of error number one,

appellate courts review summary judgments de novo, under the same criteria that

govern the trial court’s determination of whether summary judgment is

appropriate. Duncan, 950 So.2d 544. In order to prevail on a motion

for summary judgment, the moving party must show that “there [is] no genuine

issues of material fact and that he is entitled to judgment as a matter of

law.” La.Code Civ.P. art. 966(A)(3)

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For consideration of this motion for summary judgment, while Defendants

are the movant, they do not have the burden of proof on the issue at trial.

Therefore, they need only establish that Bowdoin lacked support for one or more

elements required to establish his claim. La.Code Civ.P. art. 966(D)(1). If WHC

satisfies its burden on the motion, Bowdoin must “produce factual support

sufficient to establish the existence of a genuine issue of material fact or that the

mover is not entitled to judgment as a matter of law.” Id. Otherwise, Bowdoin’s

opposition fails.

Defendants’ argument is that even if you take all the facts alleged by

Bowdoin as true, Badon was still not within the course and scope of his

employment with WHC when the accident happened. According to Defendants,

Bowdoin’s course and scope claim relies on the purpose of Badon’s mission being

to bring Bowdoin from Louisiana to Florida and Badon had completed that mission

the night before the accident occurred. We do not find this argument convincing.

If we are to take all the facts alleged by Bowdoin as true, a reasonable

person could conclude that Badon was in the course and scope of his employment

with WHC at the time of the accident. Bowdoin alleges that Badon’s mission was

to get him to the jobsite and have him staged and ready for work the next week.

According to Bowdoin, Badon having his camper at the campsite was necessary in

order for Badon to complete that mission.

Moreover, according to Badon, WHC’s supervising employees gave him

permission to use the company’s vehicle and towing equipment to get his camper

from the Perry campsite to the Orlando campsite for WHC’s benefit. Thus, while

there is conflicting evidence on this issue, if we are to take Badon’s testimony as

true, it would be reasonable to find that Badon’s mission to get his camper from

the Perry campsite to the Orlando campsite was within the course and scope of his
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employment given evidence in the record that that use of campers at the campsites

was necessary and their use benefitted WCH. Additionally, given that Bowdoin

had not yet been staged and ready for work at the campsite, it would also be

reasonable to find that Badon had not accomplished his mission allegedly given to

him by WHC. Thus, Defendants’ argument regarding the fact that Bowdoin could

have stayed at a hotel or other lodging and gotten a ride to work on the day work

began does not mean that Badon’s mission to get him to Florida was completed nor

does it mean that they are entitled to summary judgment.

As such, given the status of the record, we find that reasonable minds could

differ as to whether Badon was in the course and scope of his employment with

WHC when the accident occurred. Accordingly, we find no error by the trial court

in denying Defendants’ motion for summary judgment.

CONCLUSION:

WHC Maintenance Services, Inc., Zurich American Insurance Company,

and AIG Specialty Insurance Company raise two assignments of error. We find

merit in the first and reverse the trial court’s judgment granting Dustin William

Bowdoin’s motion for summary judgment based on the factual question of whether

Devin Badon was in the course and scope of his employment with WHC

Maintenance Services, Inc. when the automobile accident in question transpired.

Further, we affirm the trial court’s denial of WHC Maintenance Services, Inc.,

Zurich American Insurance Company, and AIG Specialty Insurance Company’s

motion for summary judgment because whether Devin Badon was not in the course

and scope of his employment with WHC Maintenance Services, Inc. when the

automobile accident in question transpired is a question of material fact.

Accordingly, we remand this matter for further proceedings consistent with this

opinion.
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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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