Brian Mullen v. State Farm Mutual Auto. Ins Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-341

BRIAN MULLEN

VERSUS

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., ET AL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, 2016-2314
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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SYLVIA R. COOKS
CHIEF JUDGE
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Court composed of Sylvia R. Cooks, Chief Judge, Van H. Kyzar and J. Larry
Vidrine*, Judges.

REVERSED AND REMANDED.

John P. Wolff, II
Collin J. Leblanc
Sydnee D. Menou
Keough, Cox & Wilson, Ltd.
P.O. Box 1151
Baton Rouge, LA 70821
(225) 383-3796
COUNSEL FOR DEFENDANT/APPELLANT:
Scottsdale Insurance Co.

Maryalyce W. Cox
E. Wade Carpenter
Mehaffy Weber, P.C.
500 Dallas, Suite 2800
Houston, TX 77002
(713) 655-1200
COUNSEL FOR DEFENDANTS/APPELLEES:
Lanxess Corp. and Arlanxeo USA, LLC

*Honorable J. Larry Vidrine participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

COOKS, Chief Judge.

Scottsdale Insurance Company, in its position as the subrogated

underinsured/uninsured motorist carrier of Plaintiff, Brian Mullen, appeals the ruling

of the trial court that found the negligent driver, Vincent Roco, not in the course and

scope of his employment with Lanxess Corporation/Arlanxeo U.S.A., LLC. For the

following reasons, we find summary judgment was inappropriate and reverse and

remand for trial on the merits.

On January 26, 2016, Brian Mullen was involved in an automobile accident

with a vehicle driven by Vincent Roco. Mullen alleged he endured significant

injuries as a result of the accident, including a severe brain injury. On June 6, 2016,

Mullen filed a Petition for Damages against State Farm Mutual Automobile

Insurance Company (the automobile liability insurer of Roco), Starr Indemnity and

Liability Company (a UM insurer of Mullen), GEICO Casualty Company (a UM

insurer of Mullen) and Roco, alleging damages resulting from the automobile

accident. Mullen later added Axis Surplus Insurance Company and Scottsdale

Insurance Company as the excess and second-tier excess UM carriers of Mullen in

a First Supplemental and Amending Petition for Damages on December 8, 2016.

On May 9, 2019, Mullen also added Lanxess Corporation and Arlanxeo USA,

LLC (in their capacity as the employer of Roco) to the lawsuit in a Second

Supplemental and Amending Petition. Roco was employed by Lanxess, which later

formed a joint venture becoming Arlanxeo USA, LLC. At the time of the accident,

Roco was traveling to a mandatory meeting at the Lanxess premises in Orange,

Texas.

Pertinent to this appeal, Scottsdale, Axis and State Farm alleged that Roco

was commuting to his place of employment in his personal vehicle when the accident

occurred; and, thus, was in the course and scope of his employment. Both Lanxess

and Arlanxeo filed responsive pleadings, and eventually a Motion for Summary

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Judgment asserting that Roco was not in the course and scope of his employment at

the time of the accident. Scottsdale, Axis and State Farm filed oppositions,

contending, at a minimum, there were numerous genuine issues of material fact as

to the course and scope inquiry which should preclude summary dismissal.

Lanxess/Arlanxeo filed a reply memorandum and the hearing on the motion was set

for June 18, 2020. That hearing was deferred and Lanxess/Arlanxeo filed an

Amended Motion for Summary Judgment, which both Scottsdale and Axis opposed.

The hearing was held on August 20, 2020, after which the trial court granted the

motion for summary judgment in open court. A Judgment was submitted on October

20, 2020, but Notices of Judgment were transmitted on January 22, 2021.

On November 2, 2020, Mullen entered into a “Gasquet Settlement” with

Scottsdale. See Gasquet v. Commercial Union Ins. Co., 391 So.2d 466 (La.App. 4

Cir. 1980). Accordingly, Mullen assigned its rights to pursue Lanxess/Arlanxeo to

Scottsdale. Through this assignment of rights, Scottsdale filed this appeal, and

asserts the trial court erred in granting summary judgment as there were genuine

issues of material fact that precluded summary judgment under the facts of this case.

ANALYSIS

I. Standing.

Initially, we will address Lanxess/Arlanxeo’s contention that Scottsdale has no

standing to bring this appeal. They base this argument on an alleged concession

made by Mullen’s attorney relating to the issue of course and scope. During

arguments on the motion, Mullen’s attorney expressed that past jurisprudence from

this court made it unlikely that Roco was acting in the course and scope of his

employment at the time of the accident. This verbal expression did not constitute a

legal waiver of any claims premised on the existence of such action. Clearly, counsel

for Scottsdale has a different opinion on this legal question.

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We find the Assignment of Rights by Mullen to Scottsdale gives it standing to

bring this appeal. That agreement provides, in pertinent part:

As part of the Agreement, plaintiff has assigned and transferred any and
all claims, rights, and actions he has against Lanxess Corporation,
Arlanxeo USA, LLC and Vincent Roco (to the extent he was in the
course and scope of his employment at the time of the accident), such
assignment and transfer includes the right to recover the first dollars
against such persons or entities to the fullest extent as authorized by
law.

Accordingly, we find no merit to Lanxess/Arlanxeo’s contention that Scottsdale has

no standing to bring this appeal.

II. Summary Judgment.

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. “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). As a result, 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. 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.” Orgeron v. McDonald,

93-1353 (La. 7/5/94), 639 So.2d 224, 226-27.

The Louisiana Supreme Court in Reed v. House of Decor, 468 So.2d 1159

(La.1985), discussed the main principles 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

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falls, and the responsibility for preventing the risk is solely upon the
tortfeasor who created the risk while performing the act.

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.” Hargrave v. Delaughter, 08-1168, p. 5 (La.App. 3 Cir. 3/4/09), 10 So.3d

245, 250.

Judgments granting or denying a motion for summary judgment are reviewed

de novo. C & C Energy, L.L.C. v. Cody Invs., L.L.C., 09-2160 (La. 7/6/10), 41 So.3d

1134. Thus, the appellate court must use the same criteria as the trial court in

determining whether summary judgment is appropriate; “whether there is any

genuine issue of material fact, and whether the mover is entitled to judgment as a

matter of law.” Id. at 1137. Similarly, the judge’s role in ruling on a motion for

summary judgment is not to weigh evidence or determine the truth of the matter, but

to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-

806 (La. 6/25/04), 876 So.2d 764. “All doubts should be resolved in the non-moving

party’s favor.” Id. at 765. Genuine issues are those as to which reasonable persons

could disagree. Id. Further, facts are material if they potentially insure or preclude

recovery, affect a litigant’s ultimate success, or determine the outcome of the legal

dispute. Id.

A motion for summary judgment should be granted only if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

affidavits, show that there is no genuine issue of material fact and that the mover is

entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The initial

burden of proof is with the mover to show that no genuine issue of material fact

exists. La.Code Civ.P. art. 966(C)(2). If the moving party will not bear the burden

of proof at trial, the moving party must only point out that there is an absence of

factual support for one or more elements essential to the adverse party’s claim,

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action, or defense. Id. The non-moving party must then produce factual support

sufficient to establish that he will be able to satisfy his evidentiary burden of proof

at trial. Id. If the non-moving party fails to do so, there is no genuine issue of

material fact and summary judgment should be granted. Id. Whether a particular

fact is material can be seen only in light of the substantive law applicable to the case.

Jackson v. City of New Orleans, 12-2742, 12-2743 (La. 1/28/14), 144 So.3d 876,

cert. denied, 574 U.S. 869, 135 S.Ct. 197 (2014).

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;

Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226.

Louisiana jurisprudence has noted that the determination of whether an

employee’s acts fall within the course and scope of his employment is normally fact

intensive and not suitable for summary judgment. Orgeron, on Behalf of Orgeron

v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d 224; Soileau v. D & J Tire, Inc., 97-

318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La. 1/16/98),

706 So.2d 979; Ligeikis v. State Farm Fire and Casualty Company, 31,954 (La.App.

2 Cir. 10/27/99), 745 So.2d 806.

The record established Roco lived in Lake Charles, Louisiana. He was

employed by Lanxess/Arlanxeo as a project engineer, with his fixed place of

employment in Orange, Texas. Roco’s workplace unit was tasked with the

manufacture of the Therban product.1 Roco was the only process engineer in his

unit. The manufacturing of the Therban product is done twenty-four hours a day,

seven days a week. A specific “recipe” must be followed in the manufacturing

1
Therban is a partially or completely hydrogenated nitrile butadiene rubber, which exhibits
specific characteristics such as strength, heat resistance and oil resistance even in the most
extreme environments.
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process, as any slight deviation can render the product useless for its intended

purpose. Scottsdale contended that to ensure product integrity, Roco was required

to be available at all times to receive calls and address any issues that might arise.

Roco testified that “when there is process trouble, I have to – they’ll call me, and I

have to help them solve the issues, so I may have to log in to my laptop to assist with

the situation.” Roco is able to interface and manipulate through his company laptop

the “recipe” used to manufacture the Therber product.

Scottsdale maintained that as part of his work duties, Roco was required to be

available and respond to issues within his workplace unit twenty-four hours a day,

seven days a week. He was required to carry his company issued cell phone at all

times and was required to take his company issued laptop to and from work in the

event issues arose.

Scottsdale also notes that, at the time of the accident, Roco was en route to a

mandatory work meeting. Roco also acknowledged in his testimony that, when the

accident occurred, his cell phone was next to him “in case [he] needed to check a

call.”

It was also testified that, although Roco is a salaried employee, his

compensation and bonuses are evaluated, at least in part, on his availability off

premises and off hours.

Lanxess/Arlanxeo argued that Roco was traveling from his home in Lake

Charles to his fixed place of employment in Orange, Texas when the accident

occurred. Lanxess/Arlanxeo noted it did not provide his means of transport (he was

driving his mother’s vehicle at the time) or pay any expenses or wages for his travel

to work. It also maintained Roco’s operation of the vehicle was not incidental to, or

the actual performance of his job duties, as he was simply driving to work.

Lanxess/Arlanxeo contended simply traveling from one’s home to a fixed place of

employment under these circumstances does not equate to being in the course and

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scope of employment under the jurisprudence. They cite the Louisiana Supreme

Court’s discussion of the “coming and going rule” in Orgeron, 639 So.2d 224, as

controlling in this case. In Orgeron, the court stated:

The present case involves the application of the principle that an
employee who is traveling from home to work or returning from work
to home is generally not within the course and scope of his employment.
Because an employee usually does not begin work until he reaches his
employer’s premises, his going to and coming from work is generally
considered outside the course of his employment unless he has a duty
to perform en route. Moreover, an employee's place of residence is a
personal decision not directly controlled by the employer, and treating
commuting time as part of the determination of course and scope of
employment would remove manageable boundaries from the
determination.

The going and coming rule applies nicely when the employee has
a fixed place of work, so that his traveling back and forth between his
home and his fixed place of work is almost never in the course of
employment.

Id. at 227.

The Orgeron court did specifically note there can be “’shades of gray’ in the

otherwise ‘black and white’ application of the going and coming rule.” Id. at 227.

The court in Orgeron eventually concluded “the high degree of employer control

and employer benefit in the specially ordered trip” brought the trip within the course

and scope of employment under the particular circumstances of that case. Id. at 228.

Lanxess/Arlanxeo also maintain this court’s opinion in Jack v. McFarland,

15-405 (La.App. 3 Cir. 10/7/15), 175 So.3d 1169, supports a finding that summary

judgment was appropriately granted in this case. In that case, McFarland (the

employee) was traveling home after leaving a client’s workplace when he rear-ended

a vehicle operated by Jack. Thereafter, Jack filed a personal injury suit against

McFarland and his employer (Coca-Cola), alleging at the time of the accident

McFarland was in the course and scope of his employment with Coca-Cola.

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

employee for Coca-Cola and was visiting customers that day of the accident. Jack

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noted that McFarland did not have a set work schedule, and was issued a cell phone

and laptop by Coca-Cola that he kept to answer work-related calls and e-mails. He

also noted Coca-Cola contacted McFarland on that cell phone following the

accident. He claimed that, under the circumstances, Coca-Cola had control over

McFarland, and therefore he was in the course and scope of his employment when

the accident occurred.

In response to plaintiff's suit, Coca-Cola filed a motion for summary judgment

on the issue of vicarious liability, countering that, although McFarland was a salaried

employee and received compensation for his mileage, McFarland had completed his

work for the day and was simply returning home. McFarland did not and was not

planning to conduct any business on behalf of Coca-Cola following his last meeting

that day. Furthermore, Coca-Cola maintained that McFarland typically went home

for the day after calling on customers; and he was not an on-call employee.

In affirming the trial court’s grant of summary judgment that McFarland was

not in the course and scope of his employment at the time of his accident, this court

concluded “Coca-Cola did not have control over McFarland once he started his

journey home as in a situation where an employer has control over a 24-hour on-call

employee subject to being recalled to work. . . On this particular day, however,

McFarland was finished with his work and meetings and was traveling home. He

conducted no further work once he left his last client.” Id. at 1175.

As Scottsdale noted, the facts in Jack are distinguishable in certain

circumstances. Of particular relevance is the fact that Roco was on-call twenty-four

hours a day, seven days a week to answer and remedy any problems that arose at

work. Further, in Jack it was undisputed that the employee was finished for work

and was simply heading home for the day, whereas Roco in this case was driving to

work for a mandatory meeting. The trial court noted this discrepancy during the

hearing on the motion for summary judgment, stating:

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THE COURT: You don’t see that Jack is different though because in
that case I guess McFarland was going home, and in this case Roco was
going to work?

...

THE COURT: So, you don’t think that’s distinguishable, the fact that
he was on his mission to do his preliminary preparation for his safety -
-

Although noting this discrepancy, the trial court apparently proceeded to

resolve this factual discrepancy in Lanxess/Arlanxeo’s favor and grant summary

judgment. As is well-established, 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, 775 So.2d 1049; Independent Fire

Ins. Co., 755 So.2d 226. That was not done here.

Moreover, there was a genuine issue of material fact as to whether Roco was

on call twenty-four hours a day. The trial court noted this in his oral reasons for

judgment, stating:

A review of [Roco’s] deposition shows at times he is on call and
available for his employer, but he seems to have discretion to make
those decisions internally based on his responses. More often than not
he does respond to whatever his employer needs any time of day or
night. He appears to have the option of not being able to do so . . .

The trial court’s use of the words “seems” and “appears” clearly indicate the factual

uncertainty around this issue, one which the trial court could only resolve by

weighing the evidence and making credibility determinations. That, as set forth

above, is not appropriate in a summary judgment proceeding. This court’s opinion

in Jack, which the trial court relied upon in reaching the decision to grant summary

judgment, specifically found the fact that the employee there was not a in a situation

where “an employer has control over a 24-hour on-call employee subject to being

recalled to work” as key in its finding that the employee there was not in the course

and scope. Therefore, the on-call status of the employee is clearly material, and the

trial court inappropriately resolved this disputed issue on summary judgment. This

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was improper and requires that we reverse the trial court’s grant of summary

judgment and remand back to the trial court for a full trial on the issue of course and

scope.

DECREE

Based on the information found in the record, we find there are genuine issues

of material fact that warrant trial on the merits, and dismissal of this case at the

summary judgment stage was inappropriate. As noted, it is not the trial court's

function on a motion for summary judgment to determine or even inquire into the

merits of disputed factual issues that require credibility determinations. Therefore,

we reverse the grant of summary judgment and remand the case for trial on the

merits. All costs of this appeal are assessed to defendants-appellees, Lanxess

Corporation and Arlanxeo USA, LLC.

REVERSED AND REMANDED.

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