Wade Conner v. Klarc Lemelle

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-843

WADE CONNER

VERSUS

KLARC LEMELLE, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. 93-18
HONORABLE STEVE GUNNELL, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Elizabeth A. Pickett, John E. Conery, and Jonathan W. Perry,
Judges.

AFFIRMED.

Donald Carl Hodge, Jr.
Attorney at Law
4148 Palm Street
Baton Rouge, LA 70808
(337) 794-8873
Counsel for Plaintiff/Appellant:
Wade Conner

Allen J. Mitchell, II
Mitchell & Blanco, LLC
One Lakeshore Drive, Suite 1495
Lake Charles, LA 70629
(337) 436-8686
Counsel for Defendants/Appellants:
Klarc Lemelle and State
Farm Mutual Automobile Ins. Co.

George J. Nalley, Jr.
Andrew J. Miner
Nalley and Dew, PLC
Suite 100
2450 Severn Avenue
Metairie, LA 70001
(504) 838-8188
Counsel for Appellee:
RPM Pizza, LLC

PERRY, Judge.

In this case, we are asked to review de novo the trial court’s dismissal of

plaintiff’s vicarious liability lawsuit against an employer on a motion for summary

judgment. The injured plaintiff as well as the employee and the auto liability insurer

appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 4, 2017, Wade Conner (hereafter “Conner”) and Klarc Lemelle

(hereafter “Lemelle”) were involved in a motorcycle/pickup truck accident on U.S.

Highway 90 (hereafter “Hwy. 90”). Lemelle, driving a pickup truck owned by his

mother Elizabeth Bordelon, was turning left onto Shellie Drive in Jefferson Davis

Parish when he struck Conner, the sole rider on a motorcycle. At the time of the

accident, Lemelle, a pizza delivery driver for RPM Pizza, LLC (hereafter “RPM”),

which marketed Domino’s Pizzas, had clocked out of work, driven approximately

ten miles, and was just blocks away from his home on Shellie Drive when the two

vehicles collided.

Conner sued Lemelle, Lemelle’s mother, their insurer, State Farm Mutual

Automobile Insurance Company (hereafter “State Farm”), and RPM, who it was

asserted was vicariously liable for Lemelle’s actions. RPM moved for summary

judgment, contending Lemelle was not in the course and scope of his employment

at the time of the accident. Conner, Lemelle, and State Farm opposed the motion,

arguing the facts, when viewed in light of well-established jurisprudence, established

the course and scope issue such that summary judgment would have been

inappropriate.

The trial court granted RPM’s motion for summary judgment and dismissed

Conner’s damage claim against it. Conner, Lemelle, and State Farm appealed,

contending that the trial court erred when it found Lemelle was not in the course and

scope of his employment with RPM at the time of the motorcycle/automobile

accident.

DISCUSSION

Summary Judgment

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s consideration 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. Samaha v. Rau, 07-1726 (La.

2/26/08), 977 So.2d 880. On a motion for summary judgment, the mover bears the

burden of proof; however, if the mover will not bear the burden of proof at trial on

the issue before the court on the motion for summary judgment, the mover’s burden

on the motion does not require that all essential elements of the adverse party’s claim,

action, or defense, be negated. Instead, the mover must 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. Thereafter, the adverse party must produce factual

evidence 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. La.Code Civ.P. art.

966(D)(1).

To reverse the trial court’s decision, this court would have to find on de novo

review that the record reveals a genuine issue of material fact which precludes

summary judgment as a matter of law. White v. Louisiana Dep’t of Transp. & Dev.,

18-741 (La.App. 3 Cir. 3/13/19), 269 So.3d 1031, writ denied, 19-0572 (La. 5/28/19),

273 So.3d 311. A fact, for summary judgment purposes, “is material if it potentially

insures or precludes recovery, affects a litigant’s ultimate success, or determines the

outcome of the legal dispute.” Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876

So.2d 764, 765 (per curiam). An issue, for summary judgment purposes, is genuine
2

if “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.” Id. at 765-66.

Despite the legislative mandate that summary judgment procedure is 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 resolved in the

opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049. See

also Independent Fire Ins. Co. v. Sunbeam Corp., 99–2181, 99–2257, p. 17 (La.

2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the

undisputed facts which are most favorable to the party opposing the motion”).

A genuine issue is a triable issue. Brown v. Amar Oil Co., 11-1631 (La.App.

1 Cir. 11/8/12), 110 So.3d 1089. Because it is the applicable substantive law that

determines materiality, whether a particular fact in dispute is material can be seen

only in light of substantive law applicable to the case. Hall v. Our Lady of the Lake

R.M.C., 06-1425 (La.App. 1 Cir. 6/20/07), 968 So.2d 179. Thus, to determine

whether the trial court’s grant of summary judgment was proper, this court must look

to the applicable substantive law.

Vicarious Liability

Conner, Lemelle, and State Farm (collectively “Appellants”) argue that the

trial court erred when it determined Lemelle was not in the course and scope of his

employment with RPM at the time of the accident. They argue that there is no

precise rule determinative of the course and scope issue and contend that each case

must be determined on its own facts. This, they say, should be a jury function.

In opposition, RPM asserts that Appellants failed to present the trial court with

a list of disputed facts as required by La.Dist.Ct.R. 9.10(b)(1) and have not

challenged any of the facts relied upon in the trial court’s analysis of RPM’s motion
3

for summary judgment.1 To the contrary, RPM contends that Appellants either argue

that the trial court misapplied established Louisiana law to those facts or that as an

appellate court we should expand Louisiana jurisprudence on the issue of the course

and scope of employment. Both these arguments, RPM asserts, present questions of

law and are without merit.

Under Louisiana law, an employer is answerable for the damage occasioned

by its servants in the exercise of the functions in which the servant is employed.

La.Civ.Code art. 2320.2 “Liability is imposed upon the employer without regard to

[its] own negligence or fault; it is a consequence of the employment relationship.”

Sampay v. Morton Salt Co., 395 So.2d 326, 328 (La.1981). 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. Baumeister v. Plunkett,

95–2270 (La. 5/21/96), 673 So.2d 994. Moreover, “responsibility only attaches,

when the masters or employers . . . might have prevented the act which caused the

damage, and have not done it.” La.Civ.Code art. 2320.

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

1
In passing and without elaboration, RPM also points out that Lemelle, his mother, and
State Farm filed answers to Conner’s petition in which they denied that, based on information and
belief, Lemelle was in the course and scope of his employment with RPM at the time of the
accident. The term “on information and belief” is a common legal term often utilized in pleadings.
See, e.g., La.Code Civ.P. art. 1004 (stating that ‘[i]f the defendant is without knowledge or
information sufficient to justify a belief as to the truth of an allegation of fact made in the petition,
he shall so state[.]”). Qualifying words such as “upon information and belief” and “appear” are
the appropriate manner to plead when a plaintiff is drawing reasonable inferences from facts. See
Lewis v. Taylor, No. 1:10-CV-00108, 2010 WL 3785109, at 2-3 (S.D. Ohio Sept. 21, 2010).
Because these parties denied Lemelle was an RPM employee utilizing qualifying words, it cannot
be considered as a judicial confession under La.Civ.Code art. 1853 (stating that a “judicial
confession is a declaration made by a party in a judicial proceeding. That confession constitutes
full proof against the party who made it.”).
2
Louisiana Revised Statutes 9:3921, a statute limiting the employer’s right to seek
contribution from its employee, one that “presupposes a finding that the employee was acting in
the course and scope of his employment[,]”Austin v. Pascarelli, 531 So.2d 550, (La.App. 4 Cir.
1988), also states that “every master or employer is answerable for the damage occasioned by his
servant or employee in the exercise of the functions in which they are employed.”
4

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 (La.

7/5/94), 639 So.2d 224, 226–27; see also Timmons v. Silman, 99-3264 (La. 5/16/00),

761 So.2d 507.

The course of employment refers to time and place. Benoit v. Capitol Mfg.

Co., 617 So.2d 477 (La.1993). The scope of employment test examines the

employment-related risk of injury. Id. For the employer to be vicariously liable, the

tortious conduct of the employee must be “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 instituted by purely personal

considerations entirely extraneous to the employer’s interest.” Barto v. Franchise

Enterprises Inc., 588 So.2d 1353 (La.App. 2 Cir. 1991), writ denied, 591 So.2d 708

(1992), (quoting LeBrane v. Lewis, 292 So.2d 216 (La.1974).

In Hargrave v. Delaughter, 08-1168, p. 6 (La.App. 3 Cir. 3/4/09), 10 So.3d

245, 249–50, this court stated:

The Louisiana Supreme Court, in Blanchard v. Ogima, 253 La. 34, 215
So.2d 902 (1968), notes that the master-servant doctrine requires that a
court inquire into the totality of the master-servant relationship rather
than focusing on either “course” or “scope,” but notes that article 2320
focuses attention primarily on the “scope” element.

The preeminent master-servant case is Reed v. House of Decor,
468 So.2d 1159 (La.1985), wherein, the court articulated the
overarching principle governing master-servant liability:

Determination of the course and scope of employment is
largely based on policy. The risks which are generated by
an employee’s activities while serving his employer’s
interests are properly allocated to the employer as a cost
of engaging in the enterprise. However, when the party
(the alleged employer) upon whom vicarious liability is
sought to be imposed had only a marginal relationship
with the act which generated the risk and did not benefit
by it, the purpose of the policy falls, and the responsibility
for preventing the risk is solely upon the tortfeasor who
created the risk while performing the act.
5

Id. at 1162. Each case, then, requires a factual analysis
individual in nature, and prior cases serve merely as illustrations
of analogous situations and not as hard-and-fast rules.

However, appellate courts follow some generally accepted jurisprudential

principles. One such rule courts have consistently held is that going to and from

work is not an employment function for which the employer should be held liable.

Vaughan v. Hair, 94–86 (La.App. 3 Cir. 10/5/94), 645 So.2d 1177, writ denied, 95–

0123 (La. 3/10/95), 650 So.2d 1186; Alford v. State Farm Auto. Ins. Co., 31,763

(La.App. 2 Cir. 5/5/99), 734 So.2d 1253, writs denied, 99–1435, 99–1595 (La.

9/3/99), 747 So.2d 544, 548.

In the present case, Appellants argue that RPM exercised control over the

transportation that delivery drivers utilized. In that regard, they point out that RPM

required each delivery driver to have his own vehicle; that each vehicle was subject

to inspection and RPM mandated that the employee carry a minimum amount of

liability insurance; and that each employee was required to place a Domino’s car

top-sign on the vehicle which identified them and further served as mobile

advertisement for RPM.

In furtherance of their argument, Appellants contend that the vehicle Lemelle

drove, one over which they contend RPM exercised control, was a tool of the trade.

They rely on Willis v. Cloud, 151 So.2d 379 (La.App. 3 Cir. 1963), a workers’

compensation case, and Watson v. Ben, 459 So.2d 230 (La.App. 3 Cir. 1984), a tort

case.

From the outset, we observe that although the tort concept of “course and

scope of employment,” which imposes vicarious liability under La.Civ.Code art.

2320, is closely related to the statutory workers’ compensation standard of “arising

out of and in the course of employment,” those two concepts should not be confused.

See Malone & Johnson, Workers’ Compensation (13 La.Civ.Law Treatise), § 144
6

(5th ed.); Mitchell v. AT & T, 27,290 (La. App. 2 Cir. 8/28/95), 660 So.2d 204, 209,

writ denied, 95-2474 (La. 12/15/95), 664 So.2d 456. See, e.g., Stacy v. Minit Oil

Change, Inc., 874 So.2d 384 (La. Ct. App. 2d Cir. 2004) (citing 13 La.Civ.Law

Treatise, Workers’ Compensation Law and Practice § 144 (4th Ed.)). Stacy was a

case in which there was a workplace scuffle for which the injured employee received

workers’ compensation benefits. In a subsequent tort suit Stacy brought against his

employer, the appellate court declined to permit the finding of entitlement to workers’

compensation benefits to dictate a conclusion that the dispute was primarily

“employment-rooted” for purposes of the employer’s vicarious liability for

intentional conduct. The court then observed that the compensation standard is

“different from, and broader than, the vicarious liability test.” Stacy, 874 So.2d at

389. Moreover, this court in Senac v. State Farm Mut. Auto. Ins. Co., 09–320, p. 4

(La.App. 3 Cir. 10/7/09), 22 So.3d 1124, 1127, stated: “Contrary to workmen’s

compensation cases, courts strictly construe [the phrase, course and scope of

employment,] in cases involving damage claims for personal injuries.”3 See also,

White v. Canonge, 01–1227 (La.App. 5 Cir. 3/26/02), 811 So.2d 1286; Winzer v.

3
In Blanchard, 215 So.2d at 904 (emphasis added), the supreme court, tracing the origin
of La.Civ.Code art. 2320 and embracing its strict interpretation, stated:

These provisions of our Code have their source in the Code Napoleon
(1804), Articles 1382-1384. Article 1384 of that Code provides in part:

‘* * * masters and trustees (are responsible), for the injury
caused by their servants and managers in the functions in which
they have employed them * * *.’ (Barrister of the Inner Temple
tr.)

Planiol says of this article of the Code Napoleon:

‘There is nevertheless something exceptional in Art. 1384, and
that is the presumption of fault it establishes against the persons
it enumerates. As a consequence, this text should receive a
strict interpretation, as should all those which control legal
presumptions.’ 2 Pt. 1 Planiol, Treatise on the Civil Law (La.
State Law Inst. tr. 1959), sec. 909A, p. 508.

7

Richards, 50,330 (La.App. 2 Cir. 1/13/16), 185 So.3d 876; and Woolard v. Atkinson,

43,322 (La.App. 2 Cir. 7/16/08), 988 So.2d 836.

Against that backdrop, we turn to Appellants’ reliance on Willis, 151 So2d

379, a workers’ compensation case, as support for their contention that Lemelle was

in the course and scope of his employment with RPM because the vehicle he used

was a “tool of the trade.” Initially, we note that we have exhaustively researched the

jurisprudence and have failed to find any case that has applied a “tool of the trade”

exception in the analysis of vicarious liability under La.Civ.Code art. 2320.4 We

further find that Willis was applied at a time prior to the enactment of La.R.S.

23:1020.1, a period during which the judiciary consistently ruled that the state’s

workers’ compensation laws were liberally interpreted in favor of the injured worker.

See, Prim v. City of Shreveport, 297 So.2d 421 (La.1974). To the contrary, as

reflected in Blanchard, 215 So.2d 902, and Senac, 22 So.3d 1124, and other like

cases, we find that the phrase “course and scope of employment” is strictly construed

under the provisions of La.Civ.Code art. 2320. Accordingly, we find Appellants’

reliance on Willis in this vicarious liability setting is misplaced.

We also find Watson, 459 So.2d 230, factually distinguishable. In Jack v.

McFarland, 15-405, p. 7 (La.App. 3 Cir. 10/7/15), 175 So.3d 1169, 1174 (citations

omitted), this court summarized the pertinent facts in Watson as follows:

In Watson, the defendant, a salaried employee, had clocked out of work
and was on his way home from his place of employment. However, the
defendant remained on call for a six day period, 24 hours each day.
During that time, the defendant was required to report to the workplace
or job site when he got a call for work. Furthermore, the defendant’s
employer furnished him with credit cards for gas for his personal
vehicle, oil and filters, required a minimum level of insurance, and
required his vehicle undergo routine inspections and maintenance. The
court found that these circumstances placed the defendant within the
course and scope of employment at the time of the accident.

4
We further note that, as counsel for RPM has pointed out, no case after 1963 has applied
the exception recognized in Willis to even another workers’ compensation case.
8

Though there are similarities between the present case and Watson—both

reported to the workplace for work; both were required to have minimum levels of

vehicle liability insurance; and their vehicles were subject to inspection—there are

crucial facts that make the current case distinguishable. The employee in Watson

was salaried, he remained on call for a six-day period, twenty-four hours each day,

and he was provided credit cards for gas, oil and filters. Lemelle, on the other hand,

was paid an hourly wage only for the work he performed at the workplace or when

he delivered individual pizzas; he may have been on call but his comings and goings

were not restricted and he could decline to come into work; and he was only

reimbursed for the mileage he tolled for each pizza delivery.

Courts have stated that in vicarious liability cases the specific inquiry should

be whether the act “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 interest.” LeBrane v. Lewis,

292 So.2d 216, 218 (La.1974). In Winzer, 185 So.3d at 881 (citations omitted), the

second circuit succinctly stated:

An employer controls the movements of employees when they are
performing duties for the employer and only when this right to control
exists may vicarious liability be imposed. When employees are
performing functions of their employment, it is as though the employer
acts through the employee. The employer receives the benefit of those
acts and so he must shoulder the liability for any wrongs committed
during the performance of the acts.

Factors useful in determining whether the employee’s act was employment-related

include the payment of wages by the employer; the employer's power of control; the

employee’s duty to perform the act in question; the time, place and purpose of the

act in relation to the employment; the relationship between the employee’s act and

the employer’s business; the benefits received by the employer from the act; the
9

employee’s motivation for performing the act; and the employer’s reasonable

expectation that the employee would perform the act. Orgeron, 639 So.2d 224.

After examining LeBrane and the Orgeron factors, we find the present case

most similar to this court’s decision in Jack, 175 So.3d 1169. In that case, Ralph

McFarland (hereafter “McFarland”) was traveling home at approximately four

o’clock after leaving a client’s workplace when he rear-ended a vehicle operated by

Darius Jack (hereafter “Jack”). Jack filed suit for personal injuries against

McFarland and Coca–Cola, alleging McFarland was in the course and scope of

employment with Coca–Cola at the time.

Jack asserted that at the time of the accident, McFarland was a salesman for

Coca–Cola and was in a Coca–Cola polo shirt. He further contended McFarland is

a salaried employee of Coca–Cola, was visiting customers on the day of the accident,

was compensated for his mileage, and was required to maintain a minimum amount

of insurance on his personal vehicle used for work. Jack maintained that McFarland

did not have a set work schedule, had a cell phone and laptop paid for by Coca–Cola

that he kept to answer work-related calls and e-mails, and that Coca–Cola contacted

McFarland on that cell phone following the accident. He claimed that, under the

circumstances, Coca–Cola had control over McFarland, thereby implicating the

principle of vicarious liability.

In response to plaintiff’s suit, Coca–Cola filed a motion for summary

judgment on the issue of vicarious liability stating that, although McFarland was a

salaried employee and received compensation for his mileage, McFarland had

finished work for the day and was returning home. McFarland did not conduct any

business on behalf of Coca–Cola following his last meeting with a client.

Furthermore, Coca–Cola asserted that McFarland did not have a set work schedule

and typically went home for the day after calling on customers; he was not an on-
10

call employee. In support of their motion, Coca–Cola attached the affidavit of

McFarland corroborating their assertions that McFarland owned and maintained his

vehicle and insurance as well as the assertion that McFarland was traveling home

and was finished exercising any employment duties for Coca–Cola.

In finding McFarland was not in the course and scope of his employment at

the time of his accident, this court found the following: (1) at the time of the accident

he was on his way home for the evening and did not record that mileage for

repayment; (2) he was conducting no activity on behalf of his employer after his last

customer call; (3) his employer did not have control over him such as it would over

a twenty-four hour on-call employee; (4) although the possibility existed that he

might have been called back to the office before it closed, that seldom occurred; and,

(5) even though McFarland owned his own vehicle and his employer required a

minimum level of insurance coverage, he paid for the vehicle’s maintenance and

auto insurance, purchased the insurance policy himself, and determined which

insurance company to use.

In the present case, we find the following facts decisive: (1) Lemelle was an

hourly employee and he was no longer being paid for his time and mileage after he

clocked out and was making his ten-mile trip back home; (2) although there may

have been a time or two when he was called back to work after having clocked-out,

he did not expect to return to work after he clocked out on the day of the accident

and there were times when he declined to return to work; (3) his vehicle was owned

by his mother, who maintained the vehicle, selected the insurance carrier for the

vehicle, and paid the insurance premiums; and (4) after he had clocked out from

work and he was on his way home, his actions neither furthered his employer’s

business nor contributed to it. Moreover, even if Lemelle may have been wearing

his work uniform, just as the Coca–Cola polo shirt McFarland wore in Jack, and the
11

Domino’s car-top sign was atop his vehicle in contravention to RPM’s policy that

such sign was not to be taken home, there was no evidence such items were any

indicia that they furthered RPM’s business at the time of the accident. Consequently,

we find the trial court did not err in granting RPM’s motion for summary judgment.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. 5

Summary Judgment was correctly granted to RPM Pizza, LLC, and all claims

against them were properly dismissed. Costs of this appeal are assessed to Wade

Conner, Klarc Lemelle, and State Farm Mutual Automobile Insurance Company.

AFFIRMED.

5
Although Conner also alleged in his pleadings that RPM negligently hired Lemelle,
negligently supervised him, and negligently maintained polices to ensure driver safety, these issues
were not asserted at the trial court level and have not been raised here. Moreover, these issues are
no longer relevant after our resolution, adverse to Appellants, of whether Lemelle was in the course
and scope of his employment at the time of the incident. Clearly, RPM could not have had a duty
to train its employees regarding acts that are outside the course and scope of their employment.
See Powell v. Gramercy Ins. Co., 13-928 (La.App. 5 Cir. 4/23/14), 140 So.3d 324.

12