Sarah Barber v. Louisiana Municipal Risk Management Agency Group Self-Insured Fund

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-800

SARAH BARBER, ET AL.

VERSUS

LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 251753
HONORABLE GEORGE CLARENCE METOYER JR, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED.

Robert L. Bussey
Lewis O. Lauve, Jr.
Special Assistant Attorneys General
P. O. Drawer 8778
Alexandria, LA 71306-1778
(318) 449-1937
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana

Jeremy C. Cedars
Keiser Law Firm
P. O. Box 12358
Alexandria, LA 71315
(318) 443-6168
COUNSEL FOR DEFENDANT/APPELLEE:
Estate of Larry Jeane, Sr.

Derrick G. Earles
David C. Laborde
Jeff D. Easley
Laborde Earles Law Firm
100 Versailles Blvd, Ste A
Alexandria, LA 71303
(318) 625-6397
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Sarah Barber
Jamie Turner
Racheal Spivey
Sarah Barber, o/b/o Abbigail Turner
Wallace Spivey
Jamie Turner, o/b/o Abbigail Turner
Elizabeth Spivey
Dana Spivey

EZELL, Judge.

The Plaintiffs in this case appeal the grant of summary judgment by the trial

court in favor of the State, finding that it is not vicariously liable for the acts of the

Pineville City Marshal. The Plaintiffs were injured in a car accident involving the

City Marshal. On appeal, the Plaintiffs argue that the trial court should have

granted their cross motion for summary judgment and held the State vicariously

liable for the action of the City Marshal.

FACTS

The accident occurred on July 18, 2014. Sarah Barber was driving her car

southbound on Louisiana Highway 107 in Pineville, Louisiana. Abbigail Turner,

Racheal Spivey, and Dana Spivey were guest passengers in the vehicle. At the

same time, Larry Jeane, who was in the course and scope of his employment as

Marshal with the City of Pineville, was traveling northbound on Highway 107. Mr.

Jeane crossed the centerline and hit the Barber vehicle. Mr. Jeane died because of

the accident, and the occupants of the other vehicle sustained serious injuries.

Suit was filed by and on behalf of the occupants of the Barber vehicle

against the City of Pineville and its insurer, Louisiana Municipal Risk

Management Agency Group Self-Insured Fund. Also named as defendants were

the Estate of Larry Jeane and the uninsured/underinsured carrier for the Spiveys,

Shelter Mutual Insurance Company. A supplemental and amending petition was

filed adding additional defendants: The State of Louisiana; Republic Fire and

Casualty Insurance Company, the insurer of Mr. Jeane; the Rapides Parish Police

Jury; the City of Pineville City Marshal’s Office and its unknown insurer.

The State filed an exception of no cause of action seeking dismissal of the

Plaintiffs’ claims against it. The Rapides Parish Police Jury and the Pineville City

Marshal also filed exceptions of no cause of action. The trial court denied the

exception filed by the State but granted the exceptions filed by the Police Jury and

the City Marshal. The State sought review of the trial court’s ruling in this court.

This court found no error in the trial court’s ruling. The supreme court also denied

the State’s application for supervisory writs. Barber v. La. Mun. Risk Mgmt.

Agency Group Self-Insured Fund, 16-291 (La. 4/8/16), 191 So.3d 586.

The State and the Plaintiffs filed cross motions for summary judgment

regarding the vicarious liability of the State for the actions of Mr. Jeane as City

Marshal. At the time of the hearing on the cross motions for summary judgment,

the State was the only remaining defendant concerning Mr. Jeane’s employer. The

hearing was held on June 12, 2017. The trial court denied the Plaintiffs’ motion

for summary judgment and granted the State’s motion for summary judgment

finding that the State was not the employer of Mr. Jeane as City Marshal and not

liable for his actions in causing the accident. The State was dismissed from the

case by judgment signed on June 12, 2017. The Plaintiffs then filed the present

appeal.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo, using the same

criteria that govern the district court’s consideration of whether summary judgment

is appropriate.” Greemon v. City of Bossier City, 10-2828, 11-39, p. 6 (La. 7/1/11),

65 So.3d 1263, 1267. A summary judgment “shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

material fact and that the mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(A)(3). “The only documents that may be filed in support

of or in opposition to the motion are pleadings, memoranda, affidavits, depositions,

answers to interrogatories, certified medical records, written stipulations, and

admissions.” La.Code Civ.P. art. 966(A)(4). “The burden of proof rests with the
2

mover.” La.Code Civ.P. art. 966(D)(1). If the mover will not bear the burden of

proof at trial on the matter at issue, however, his burden on the motion for

summary judgment “does not require him to negate all essential elements of the

adverse party’s claim, action, or defense, but rather to point out to the court the

absence of factual support for one or more elements essential to the adverse party’s

claim, action, or defense.” Id. Specifically, “[t]he burden is on the adverse party to

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.

DISCUSSION

All parties agree that the facts are not in dispute and that only a question of

law is at issue: Is the State vicariously liable for the accident caused by Mr. Jeane

when he was in the course and scope of his employment as the Pineville City

Marshal? The Plaintiffs claim that the Marshal is commanded by the State

Legislature to enforce the mandates of the Pineville City Court, which is a part of

the judiciary branch of state government. Therefore, the Plaintiffs claim that the

State is vicariously liable for the acts of the Marshal. The State argues that the

Plaintiffs must establish a master/servant relationship between it and the Marshal

under the traditional criteria of control, compensation, and course and scope as

required by La.Civ.Code art. 2320 and La.R.S. 42:1441.4.

Pursuant to La.Civ.Code art. 2320, “[m]asters and employers are answerable

for the damage occasioned by their servants and overseers, in the exercise of the

functions in which they are employed.” Louisiana Revised Statutes 42:1441

providing for the limitation of the vicarious liability of the State of Louisiana stated

at the time of this accident1:

1
Louisiana Revised Statutes 42:1441 was amended by Acts 2017, No. 414, § 1, regarding
the liability and indemnification of a district attorney.
3

A. The state of Louisiana shall not be liable for any damage
caused by a district attorney, a coroner, assessor, sheriff, clerk of court,
or public officer of a political subdivision within the course and scope
of his official duties, or damage caused by an employee of a district
attorney, a coroner, assessor, sheriff, clerk of court, or public officer
of a political subdivision.

B. The provisions of Subsection A of this Section are not
intended to and shall not be construed to affect any personal liability
which may arise from damage caused by any public officer of a
political subdivision, or by a district attorney, coroner, assessor,
sheriff, clerk of court, or the employee of any such public officer, nor
shall the provisions of said Subsection A be construed to amend or
repeal R.S. 13:5108.1.

C. For the purposes of this Section, “political subdivision”
means a parish, municipality, and any other unit of local government,
including a school board and a special district, authorized by law to
perform governmental functions.

In La.R.S. 42:1441.4, the legislature set forth the following findings and

purposes regarding governmental liability for employee offenses and quasi

offenses:

With respect to the nonliability situations set forth in this
Chapter as well as the master-servant tort liability provisions
contained in this Chapter, the legislature finds and states that:

(1) The intent of the Civil Code Article 2320 and other laws
imposing liability on a master for the offenses and quasi offenses of
his servant can be found implied in the traditional interpretation and
application thereof, in much the same manner as explained in
Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), the same with
respect to the relationships between governmental bodies politic and
their respective officers and employees as it is with respect to
relationships among private individuals.

(2) Such cases as Foster v. Hampton, 352 So.2d 197 (La.1977)
and 381 So.2d 789 (La.1980); Mullins v. State, 387 So.2d 1151
(La.1980), and Hryhorchuk v. Smith, 390 So.2d 497 (La.1980),
represent misinterpretations and misapplications of Civil Code Article
2320 and other laws imposing liability on a master for the offenses
and quasi offenses of his servant.

(3) The intent and purpose of the provisions contained in this
Chapter relative thereto are to restore to the legislatively created Civil
Code Article 2320 and other laws imposing such master-servant
liability the true legislatively intended meaning, interpretation, and
application deviated from in such relationships, circumstances, and
4

cases as reported in Foster v. Hampton, Mullins v. State, and
Hryhorchuk v. Smith, supra.

(4) The intent, purpose, and effect of such provisions in this
Chapter are not to attempt a reestablishment of any governmental
immunity based on the status of sovereignty of any government, but
rather to correct the legislatively created substantive law, in much the
same manner as such provisions were correctly interpreted and upheld
in Martinez v. Reynolds, 398 So.2d 156 (La.App. 3rd Cir.1981), and
Sullivan v. Quick, 406 So.2d 284 (La.App. 3rd Cir.1981).

(5) The liability of government should be no greater than that of
private individuals.

(6) That those legislatively created substantive laws which are
misinterpreted and misapplied to result in such greater governmental
liability can and should be corrected to the same extent and for the
same relationships wherein they were erroneously interpreted and
applied.

In Martinez v. Reynolds, 398 So.2d 156 (La.App. 3 Cir. 1981), this court

concluded that La.R.S. 42:1441 destroys any cause of action against the State for

the vicarious liability of certain governmental employees. Later, applying these

statutes, this court held that the State could not be held vicariously liable for a tort

committed by a parish constable during the course and scope of his employment as

a local official. Hebert v. Angelle, 600 So.2d 832 (La.App. 3 Cir.), writ denied,

604 So.2d 997 (La.1992).

In Morgan v. Laurent, 06-467 (La.App. 5 Cir. 12/27/06), 948 So.2d 282,

writ denied, 07-178 (La. 3/16/07), 952 So.2d 701, the fifth circuit found that the

State could not be held liable for an accident involving a law clerk of a parish

district court. This is because La.R.S. 42:1441.1 provides that the State is not

liable for the offenses and quasi offenses of any person who is not an employee of

the State entitled to indemnification under La.R.S. 13:5108.2. The court held that

the law clerk was not one of the covered individuals of the judicial branch for

whom vicarious liability extends under La.R.S. 13:5108.1(E). As noted by the

5

court in Morgan, 948 So.2d 282, La.R.S. 13:5108.2 was repealed by Acts 2000, 1st

Ex.Sess., No. 65, § 2, and the substance is now found in La.R.S. 13:5108.1.

While La.R.S. 42:1441(A) does not specifically list a marshal as one of the

governmental employees that the State is not liable for, it does list a “public officer

of a political subdivision.” A political subdivision is defined as a “municipality . . .

authorized by law to perform governmental functions.” La.R.S. 1441(C).

Furthermore, La.R.S. 13:5108.1(E)(3)(b) specifically provides that a “covered

individual” for indemnification purposes does not include marshals, so that La.R.S.

42:1441.1 destroys any cause of action against the State for the offenses of a city

marshal. Therefore, the State is not liable for the accident caused by Mr. Jeane as

Pineville City Marshal as the legislature has deemed it immune for the actions of a

city marshal.

For the reasons set forth in this opinion, the judgment of the trial court

granting summary judgment in favor of the State of Louisiana is affirmed. Costs

of this appeal are assessed against the Plaintiffs/Appellants.

AFFIRMED.

6