Patrick Terrill Randall v. Xceptional Flooring, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-626

PATRICK TERRILL RANDALL

VERSUS

XCEPTIONAL FLOORING, INC.

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 12-06687
SHARON MORROW, WORKERS COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

James Christian Lewis
The Glenn Armentor Firm
300 Stewart Street
Lafayette, LA 70501
(337) 233-1471
COUNSEL FOR PLAINTIFF/APPELLEE:
Patrick Terrill Randall

Matthew Robert Richards
Attorney at Law
2237 S. Acadian Thruway
Baton Rouge, LA 70808
(225) 231-0521
COUNSEL FOR DEFENDANTS/APPELLANTS:
Xceptional Flooring, Inc.
Louisiana Workers’ Compensation Corporation

SAUNDERS, Judge.

This is a workers’ compensation case in which a floor installer was injured

in a car accident while driving to pick up materials for a floor installation job. The

floor installer filed a workers’ compensation claim against his employer,

Xceptional Flooring Inc., and its workers’ compensation insurer, Louisiana

Workers’ Compensation Corporation (hereinafter “LWCC”). He filed a motion for

partial summary judgment on the issue of whether he was in the course and scope

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

Defendants appeal. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

The undisputed facts are as follows. Plaintiff, Patrick Randall (hereinafter

“Randall”) was a subcontractor whom Xceptional Flooring, Inc. (hereinafter

“Xceptional”), a floor installation business, contracted to perform work in new

residential homes. Xceptional allowed Randall seven days to install the flooring

for each job, but did not set hours or supervise Randall’s daily work.

Steve Melancon (hereinafter “Melancon”), president and owner of

Xceptional, testified at his deposition that on June 22, 2012, he sent Randall a text

message instructing Randall to install tile at “Summerfield lot 12.” Xceptional

required Randall to pick up floor installation materials for his jobs at SouthPark

Flooring (hereinafter “SouthPark”) in Lafayette. Randall left his home that same

morning to pick up the flooring materials.

Randall stopped at his brother’s house, then continued on his way to

SouthPark. During this second leg of his drive, he was involved in a collision

between three vehicles. The collision involved a driver who was fleeing the police.

The driver ran a stop sign, striking another vehicle which then struck Randall’s car

in a head-on collision. Randall suffered serious injuries.

Melancon testified during his deposition as follows:

Q: And it’s your understanding that, at the time of his accident,
[Randall] was driving to SouthPark to pick up materials for
Exceptional’s [sic] job, correct?

A: Yes.

After the accident, Melancon spoke with LWCC claims adjuster Lisa Huffty

(hereinafter “Huffty”). Melancon testified at his deposition as follows:

Q: Did [Huffty] ask you whether or not Mr. Randall was doing a
duty or a task for Exceptional [sic] Flooring?

A: Yes.

Q: And what did you tell her?

A: Yes.

In a letter dated September 27, 2012, Huffty opined that Randall was not in

the course and scope of employment at the time of his injury and stated that LWCC

would authorize no further treatment for him. Huffty testified at her deposition:

Q: What was the basis at the time to refuse Mr.Randall's benefits?

A: In most instances travel is not in the scope of employment. He
wasn't being re-emburesed [sic] for his travel expenses and as an
independent contractor his duty was to lay the floor.

Randall filed a disputed claim for compensation, alleging that he was

entitled to medical and indemnity benefits because he was in the course and scope

of employment at the time of the accident. Randall filed a motion for partial

summary judgment on the issue of course and scope. The trial court granted the

motion in favor of Randall, finding that at the time of the accident he “was in the

course of performing duties for Xceptional Flooring and that the accident arose out

of the performance of those duties.” The trial court recognized the general rule

that commuting to and from work is excluded from the course and scope of

employment. According to the oral reasons for ruling, the trial court based its

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finding on the “special mission” exception to the general rule, as well as the

exceptions of employer consent and a duty that benefits the employer. Defendants

appeal the partial summary judgment.

ASSIGNMENT OF ERROR

On appeal, Defendants assert that it was legal error for the trial court to find

that the Plaintiff was injured in the course and scope of his employment at the time

of the motor vehicle accident that occurred at 8:17 a.m. on June 22, 2012.

LAW AND ANALYSIS

Motion to Supplement Record

Randall filed a motion to supplement the appeal record, seeking to introduce

a copy of LWCC’s petition. Defendants oppose supplementing the record. This

matter was referred for consideration with the merits of the appeal. It is well-

settled that “[t]his court is not vested with the authority to receive new evidence

and cannot consider evidence which was not part of the record before the trial

court.” Brown v. State, 06-709, p. 3 (La.App. 3 Cir. 11/2/06), 942 So.2d 721, 723

(citing White v. W. Carroll Hosp., Inc., 613 So.2d 150 (La.1992)). Randall

presents no reason why this rule should not apply to his case, and we find no such

reason exists. Accordingly, the motion to supplement the record on appeal is

denied.

Course and Scope

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

determination of every action.” La.Code Civ.P. art. 966(A)(2). This court reviews

summary judgments de novo, using the same criteria that govern the trial court's

consideration of whether summary judgment is appropriate. Richard v. Hall, 03-

1488 (La. 4/23/04), 874 So.2d 131; Goins v. Wal-Mart Stores, Inc., 01-1136 (La.

11/28/01), 800 So.2d 783. “In a case where there are no contested issues of fact[ ]
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and the only issue is the application of the law to the undisputed facts, . . . the

proper standard of review is whether or not there has been legal error.” Tyson v.

King, 09–963, p. 2 (La.App. 3 Cir. 2/3/10), 29 So.3d 719, 720 (quoting Bailey v.

City of Lafayette, 05–29, p. 2 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 923, writs

denied, 05–1689, 05–1690, 05–1691, and 05–1692 (La.1/9/06), 918 So.2d 1054).

Because the parties set forth no disputed facts in the instant case, the standard of

review is whether the trial court's grant of Randall’s motion for partial summary

judgment constituted legal error. See Daigle v. Merrill Lynch, 12-1016 (La.App. 3

Cir. 2/6/13), 107 So.3d 901.

Workers’ compensation law is to be interpreted liberally in favor of the

worker “in order to effectuate its beneficent purpose of relieving workmen of the

economic burden of work-connected injuries by diffusing the cost in the channels

of commerce.” Lester v. Southern Cas. Ins., 466 So.2d 25, 28 (La.1985); see

also Coats v. American Tel. & Tel. Co., 95-2670 (La.10/25/96), 681 So.2d 1243;

Harold v. La Belle Maison Apartments, 94-889 (La.10/17/94), 643 So.2d

752. Nonetheless, the burden of proof is on the worker to prove his claim by a

preponderance of the evidence. McLin v. Indus. Specialty Contractors, Inc., 02-

1539 (La. 7/2/03), 851 So.2d 1135.

In general, “an employee going to and from his place of employment is not

considered as acting within the course and scope of his employment.” White v.

Frenkel, 615 So.2d 535, 540 (La.App. 3 Cir. 1993). This court explained the

application of this rule in Johnson v. Templeton, 99-1274, pp. 7-8 (La. App. 3 Cir.

3/29/00), 768 So.2d 65, 70-71 writ denied sub nom. Schaefer v. Templeton, 00-

1235 (La. 8/31/00), 766 So.2d 1276 and writ denied, 00-1912 (La. 8/31/00), 766

So.2d 1285 and writ denied, 00-1930 (La. 8/31/00), 766 So.2d 1286 (quoting

Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226-27) as follows:
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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. Not all employees, however, work on the employer's
premises or have a fixed place of work. The dispatching of employees
to different work locations gives rise to many “shades of gray” in the
otherwise “black and white” applications of the going and coming rule.
When an employee is required to check in at a certain place and is
then dispatched to the work site for that day, he is generally in the
course of employment in the travel between the check in place and the
work site, but not between home and the check in place. See generally
Arthur Larson, Law of Workman's Compensation § 16 (1993).
However, when an employee is instructed to report to different work
sites which change periodically, without first reporting to a check in
place, there are more variations in the determination of course and
scope of employment.

In Castille v. Sibille, 342 So.2d 279 (La.App. 3 Cir.1977), this court set forth

three specific exceptions to the general rule:

The courts have held employees entitled to workmen's compensation
in those cases in which the employer had concerned himself with the
transportation of his employees---he has furnished transportation;
and/or the employee is furnished travel expenses or is paid wages for
time spent in traveling---and in those cases in which the operation of
the motor vehicle was the performance of one of the duties of the
employment of plaintiff.

Id. at 281 (internal citations omitted). In addition, this court embraced second

circuit jurisprudence to recognize the following exceptions to the general “going-

and-coming rule” in Williams v. Pilgrim's Pride Corp., 11-59, p.4 (La.App. 3 Cir.

6/1/11), 68 So.3d 616, 620, writ denied, 11-1793 (La. 10/21/11), 73 So.3d 384 and

writ denied, 11-1794 (La. 10/21/11), 73 So.3d 384:

(1) [I]f the accident occurred on the employer's premises; (2) if the
employee was deemed to be on a specific mission for the
employer; (3) if the employer had interested himself in the
transportation of the employee as an incident to the employment
agreement either by contractually providing transportation or
reimbursing the employee for his travel expenses; (4) if the
employee was doing work for his employer under circumstances
where the employer's consent could be fairly implied; (5) if the
employee was injured while traveling to and from one work site to
another; (6) if the employee was injured in an area immediately
adjacent to his place of employment and that area contained a
distinct travel risk to the employee (“the threshold doctrine”); or

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(7) if the operation of a motor vehicle was the performance of one
of the duties of the employment of the employee. L.J. Earnest
Const. v. Cox, 30,506 (La.App.2d Cir.5/13/98), 714 So.2d 150;
Yates v. Naylor Indus. Services, Inc., 569 So.2d 616 (La.App. 2d
Cir.1990), writ denied, 572 So.2d 92 (La.1991).”

Xceptional argues that because Randall “had no normal work site and had no

normal work hours,” the special mission exception does not apply. It argues that

this exception applies only to derogations from normal work sites and normal work

hours. Were such an argument to succeed, no workers with various job sites and

autonomous schedules would be eligible for the special mission exception---a

result contrary to law. In fact, this court has previously stated that the absence of a

normal work site and normal work hours gives rise to “shades of gray” in the

application of the general “coming-and-going rule,” rather than extinguishing the

exceptions to the going and coming rule. Johnson, 768 So.2d at 70.

When the worker has a greater degree of flexibility, as here, we must look to

the facts on a case-by-case basis. In the instant case, Randall was driving to pick

up materials for a specific floor installation job pursuant to Melancon’s instructions.

We agree with the trial court that such a trip is a “specific mission” as

contemplated by the rule setting forth exceptions in Williams above.

Furthermore, since Randall was instructed to pick up the materials for the

floor installation job himself at that particular site, the “employer's consent could

be fairly implied” and “the operation of a motor vehicle was the performance of

one of the duties of the employment of the employee.” Williams, 68 So.3d at 620.

We find that each of these three well-established exceptions to the general coming-

and-going rule applies such that Randall was in the course and scope of

employment during his drive to SouthPark.

Xceptional argues the instant case is similar to Mundy v. Dep't of Health &

Human Res., 593 So.2d 346 (La.1992), wherein the supreme court found a nurse to
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be outside the course and scope of employment when she was stabbed at her

workplace. The court found that she was outside the course and scope because she

had not yet checked in to the nurse’s station to begin her work duties at the time of

her injury. Mundy is readily distinguishable from the instant case because the act

of picking up floor installation materials was part of Randall’s duties. Randall was

not merely traveling toward the point at which his workday would begin. Unlike

the nurse walking to check in at her station and then begin work, an integral part of

Randall’s work was the very act of driving to pick up the materials.

The instant case is far more analogous to White v. Frenkel, 615 So.2d 535,

537 (La.Ap.. 3 Circ. 1993), in which a worker was involved in an automobile

accident while driving on tour as a professional wrestler. White dealt with the

issue of course and scope of employment in the context of respondeat

superior liability rather than workers’ compensation. However, in an analysis

appropriate to the instant case, this court found that the worker in White was in the

course and scope of his employment at the time of the accident because, even

though he was not actually wrestling at the time of his injury, his employer “could

not accomplish its goal without the entertainer/wrestlers travelling extensively.” Id.

at 541. Likewise, although Randall was not actually installing flooring at the time

of his accident, like the employer in White, Xceptional could not accomplish its

goal of a finished product made of the materials available at SouthPark without

Randall driving to SouthPark to pick them up for his installation job. It is clear

that Randall was in the course and scope of employment at the time of his injury.

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CONCLUSION

Defendants, Xceptional Flooring Inc. and LWCC, allege that the trial court

erred in granting Plaintiff Patrick Terrill Randall’s motion for partial summary

judgment on the issue of course and scope of employment. We find that Plaintiff

was in the course of scope of his employment at the time of his injury. The trial

court properly granted the motion. Therefore, we affirm the trial court’s ruling

granting partial summary judgment on this issue. All costs of this appeal are

assessed to Defendants, Xceptional Flooring Inc. and LWCC.

AFFIRMED.

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