Celeste Reed Obo Ava Cope v. Black Star Energy Services, LLC and Texas Mutual Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-148

CELESTE REED OBO AVA COPE
VERSUS
BLACK STAR ENERGY SERVICES, LLC AND

TEXAS MUTUAL INSURANCE COMPANY

38 so oe oe ab ok ae

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION — Dist. No. 4
PARISH OF LAFAYETTE, NO. 22-03099
ANTHONY P. PALERMO, WORKERS’ COMPENSATION JUDGE

3 ts oe ok oe oR fe

VAN H. KYZAR
JUDGE

ado dk ak

Court composed of D. Kent Savoie, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

AFFIRMED.

Tracy P. Curtis

The Glenn Armentor Law Corp.

300 Stewart Street

Lafayette, LA 70501

(337) 233-1471

COUNSEL FOR PLAINTIFF/APPELLANT:
Celeste Reed obo Ava Cope

Jennifer Sullivan Lambert

Juge, Napolitano, Guilbeau, Ruli & Frieman

3320 West Esplanade Avenue North

Metairie, LA 70002

(504) 831-7270

COUNSEL FOR DEFENDANT/APPELLEE:
Black Star Energy Services, LLC

J. Warren Gardner, Jr.

Christovich & Kearney, LLP

601 Poydras Street, Suite 2300

New Orleans, LA 70130-6078

(504) 561-5700

COUNSEL FOR DEFENDANT/APPELLEE:
Texas Mutual Insurance Company

KYZAR, Judge.

Plaintiff, Celeste Reed, on behalf of Ava Cope, a minor, appeals the
judgement of the workers’ compensation judge granting a motion for summary
judgment in favor of the employer holding that the decedent employee was not in
the course and scope of his employment at the time of his death. For the following
reasons, we affirm.

DISCUSSION OF THE RECORD

This action arises out of a vehicular accident that occurred in the early
morning hours of January 17, 2022, resulting in the death of Jonnie Keith Cope. The
decedent, along with Michael Lowery, Alberto Nevarez, and Corey Kothenbeutel,
were working for Black Star Energy Services, LLC (Black Star) at a jobsite in Roby,
Texas. On January 16, 2022, the four men finished work at around 6:00 p.m. They
then met for dinner at Amores Italian restaurant in Snyder, Texas at approximately
7:00 p.m., where they ate, consumed alcohol, and watched football until
approximately 10:00 p.m. At that time, the group travelled together to a gentlemen’s
club in Lubbock, Texas, where they remained until approximately 2:00 a.m., when
they attempted to drive back to Snyder, Texas. While traveling, the driver, Mr.
Kothenbeutel, fell asleep, losing control of the vehicle. After striking a guardrail,
the vehicle rolled over several times, ejecting the front right passenger and the back
left passenger. Mr. Cope, the front right passenger, was pronounced dead at the
scene of the accident.

A disputed claim for compensation was filed by Ms. Reed on behalf of her
minor child, Ava Cope, who is the minor child of the decedent, Mr. Cope, seeking
death benefits against Black Star and its workers’ compensation insurer, Texas

Mutual Insurance Company (Texas Mutual).

Texas Mutual filed a motion for summary judgment asserting that it only

provided Texas workers’ compensation benefits for Texas employees injured at

Texas work sites and therefore did not provide coverage for Mr. Cope’s death.
Neither Black Star nor Plaintiff opposed Texas Mutual’s motion, and it was
dismissed from the claim.

Black Star also filed a motion for summary judgment, asserting that the
decedent was not in the course and scope of his employment at the time of the
accident. After hearing the argument of counsel] and reviewing the evidence, the
workers’ compensation judge (WCJ) found that at the time of the accident, the
decedent and his party were leaving Lubbock, Texas at around 3:00 a.m. and were
traveling back to their hotel rooms. As the mission they were on was not furthering
the mission for Black Star, it, therefore, fell outside the course and scope of their
employment. Accordingly, judgment was rendered in favor of Black Star,
dismissing the claim against it.”

This appeal followed, wherein Plaintiff makes the following assignments of
error:

1. The workers’ compensation judge summarily dismissed

employer relying entirely on evidence that employer introduced
and ignored claimant’s evidence that contradicts the employees’
destination that is determinative of an exception to the “going
and coming rule.”

2. The workers’ compensation judge acknowledged claimant’s
contradictory evidence but nevertheless made a credibility
determination in granting summary judgment because it found “.

.. that the evidence points to the fact that the travel at the time of

the accident was outside of the course and scope of
employment.”

Although the accident occurred in Texas, it was not disputed that the decedent was
domiciled in Lafayette, Louisiana.

* The original judgment of the WCJ was dated January 13, 2023, but did not contain the
necessary decretal language. The WCJ filed with this court an amended judgement dated October
27, 2023, containing the decretal language dismissing the claims against Black Star with prejudice.

2

3. Alternatively, it is unclear whether the workers’ compensation
judge considered appellant’s affidavit even after allowing it into
evidence.

DISCUSSION
Plaintiff first asserts that the WCJ summarily dismissed Black Star relying
entirely on evidence that it introduced and ignoring her evidence, which contradicted
the employees’ destination on the morning of the accident that is determinative of
an exception to the “going and coming rule.” She next asserts that the WCJ made
an improper credibility determination in deciding to grant summary judgment when
it made the statement in its reasons for judgment “that the evidence points to the fact

that the travel at the time of the accident was outside of the course and scope of

employment.” Finally, Plaintiff asserts that it is unclear whether the WCJ considered

her affidavit even after allowing it into evidence. As all of the assignments of error
relate to the propriety of the granting of the motion for summary Judgment, we
address them together.

Appellate courts review summary judgments de novo under the same criteria
that governed the trial court’s consideration of whether or not summary judgment
was appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342
(La.1991). Summary judgment is proper if the motion, memorandum, and
supporting documents show that there is no genuine issue of 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).

Louisiana Code of Civil Procedure Article 966 charges the moving party with

the burden of proving that summary judgment is appropriate. In doing so, the

While not couched as a true assignment of error, we will consider the argument to assert
that the WCJ did not adequately consider Plaintiffs affidavit in deciding that no issues of material
fact were indeed in dispute.

moving party’s supporting documentation must be sufficient to establish that no
genuine issue of material fact remains at stake. Townley v. City of lowa, 97-493 (La.
App. 3 Cir. 10/29/97), 702 So.2d 323. Once the mover makes a prima facie showing
that there is no genuine issue as to a material fact and that summary judgment should
be granted, the burden shifts to the non-mover. /d.

The threshold question in reviewing a trial court’s grant of summary judgment
is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App.
3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La. 3/13/98), 712 So.2d 882. We
must then determine whether reasonable minds could conclude, based on the facts
presented, that the mover is entitled to judgment. /d. Thus, summary judgment is
appropriate when all relevant facts are brought before the court, the relevant facts
are undisputed, and the sole issue remaining is the conclusion to be drawn from the
relevant facts. /d. If the mover’s supporting documentation is sufficient to establish
that no genuine issue of material fact exists, the burden of proving the existence of
a genuine issue of material fact shifts to the nonmoving party. To satisfy her burden
of proof, the nonmoving party must not rely on the mere allegations or denials of her
pleadings, but her response must set forth specific facts showing that there is a
genuine issue for trial. La.Code Civ.P. art. 967.

The evidence presented by Black Star, to support the proposition that the
decedent was not in the course and scope of his employment at the time of the

accident, consisted of the affidavits of Mr. Lowery and Mr. Nevarez, an email from

Mr. Kothenbeutel to Black Star, and the Texas Peace Officer’s crash report.
Both affidavits indicated that the decedent, Mr. Nevarez, Mr. Lowery, and Mr.

Kothenbeutel were all working for Black Star on January 16, 2022, at the same

The trial court admitted all of the exhibits, and no issue was raised thereto in this appeal.

jobsite in Roby, Texas. The four ended their shift at approximately 6:00 p.m., then
went to dinner at Amores Italian restaurant in Synder, Texas at approximately 7:00

p.m. They ate dinner and watched football until approximately 10 p.m., at which

time they decided to travel to a gentleman’s club located in Lubbock, Texas.” While
traveling back to their hotel in Snyder, Texas, they were involved in a motor vehicle
accident that resulted in the death of Mr. Cope. Both men indicated they were not

on any mission for Black Star at the time of the accident.

The email’ from Mr. Kothenbeutel to Black Star dated March 15, 2022, stated
the following:

We all got off work around 6pm[.] Went to shower at the hotel[.] Then

went eat [sic] at Amores restaurant around 8pm[.] [W]e left their [sic]

around 12am an [sic] went to Jaguars strip club[.] We left the strip club

around 3am heading too [sic] the hotel[.] **ALL TIMES ARE

ESTIMATES**

The crash report established that the accident occurred at approximately 4:00
a.m. on U.S. Hwy. 84. Mr. Kothenbeutel was driving a 2016 Dodge Ram Truck and
carrying as passengers the decedent, Mr. Nevarez, and Mr. Lowery. As a result of
this accident, Mr. Cope died.

In opposition to Black Star’s motion, Plaintiff submitted her own affidavit, in
which she asserts that she and the decedent lived together and that she is the mother
of their minor child. She also asserted that Mr. Kothenbeutel, who in addition to

being the decedent’s co-employee, was also a family friend, died in October 2022,

from causes unrelated to the accident. She states that prior to his death, Mr.

> Mr. Lowery indicated in his affidavit that due to intoxication, he did not know where they
went after leaving the restaurant, but his Life 360 tracking application on his smart phone indicated
he had gone to a gentlemen’s club in Lubbock, Texas. While Plaintiff initially objected to this
portion of the affidavit, the WCJ ultimately admitted it in total. No issue was raised thereto in this
appeal.

° This email was admitted by the WCJ, and no error was raised as to the ruling herein.

Kothenbeutel admitted to her that he was driving decedent’s vehicle at the time of
the accident because he was the least intoxicated of the four men. Further, her
affidavit provides that Mr. Kothenbeutel admitted:

Because of the early moming hour that the four men left the late-night
business establishment, which was about a half-hour prior to the Crash
that occurred about 4:00 AM, because of the time that the four men had
to report to work, and because the other two men were assigned to work
at job-site different from the job-site that Decedent and Kothenbeutel
were assigned to, Kothenbeutel intended to drive the other two men
directly to their Black Star job-site, and after that he and Decedent
intended to drive directly to their Black Star job-site.[7]

The WC]J’s oral ruling in favor of Black Star on the motion provided the
following:

With regards to the Motion for Summary Judgment on behalf of
Black Star Energy, the issue in the Motion for Summary Judgment was
whether the claimant was in the course and scope of employment at the
time of the accident. After a review of the evidence, it is fairly clear
that Jonnie Keith Cope was not in the course and scope of employment
at the time of the accident.

It is undisputed in this matter that the accident occurred in the
state of Texas at the time of injury, while Jonnie Keith Cope was a
resident of the State of Louisiana.

At the time of the accident, he was working for Black Star Energy
Services in Midland, Texas. However, the evidence shows at the time
of the accident, Mr. Cope was returning from an outing that was not
within the course and scope of employment.

Mr. Cope was leaving Lubbock, Texas around 3:00 a.m. after
eating dinner and proceeding to a gentleman’s club with some of his
co-workers. At the time of the accident, the parties were traveling in a
vehicle back to their hotel room.

The mission that they were on at the time was not in the course
and scope of employment. It was not furthering the mission for Black
Star Energy Services, Incorporated; and therefore, falls outside of the
course and scope of employment.

” While Black Star initially objected to this portion of the affidavit, the WCJ admitted it in
full. Black Star did not answer the appeal raising any error as to this ruling.

Therefore, there is no issue of material fact in this case, and Black
Star Energy is entitled to a granting of the Motion for Summary
Judgment as a matter of law.

Plaintiff's first assignment of error asserts that although the decedent was
traveling back to the job site from his out-of-town outing at the time of the accident,
he was, nevertheless, in the course and scope of his employment because the
evidence established an exception to the “going and coming rule.”

The Louisiana Workers’ Compensation Act provides a remedy for employees
injured in accidents while in the course and scope of employment. Course of
employment refers to time and place, and scope of employment examines
employment related risk of injury. La.R.S. 23:1032; Hill v. West Am. Ins. Co., 93-
915 (La.App. 3 Cir. 3/2/94), 635 So.2d 1165, writ denied, 94-1630 (La. 9/30/94),
642 So.2d 881. In Theriot v. Full Service Systems Corp., 14-1199, p. 3 (La.App. 3
Cir. 5/27/15), 166 So.3d 1190, 1193-94, writ denied, 15-1603 (La. 11/20/15), 181
So.3d 700, this court discussed the “going-and-coming rule” and its exceptions as
follows:

Generally, injuries sustained by an employee while traveling to
and from work are not considered to have occurred within the course of
employment and, therefore, are not compensable under the Workers’
Compensation Act. This rule, often referred to as the “going-and-
coming rule,” is premised on the theory that, ordinarily, the
employment relationship is suspended from the time the employee
leaves his work to go home until he resumes his work.

However, the well-established “going-and-coming rule” is
subject to the following exceptions recognized by the jurisprudence: (1)
if 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 (7) if the

operation of a motor vehicle was the performance of one of the duties

of the employment of the employee. Whether an exception applies is a

question of fact.

Plaintiff asserts that the second and fifth exceptions to the “going and coming”
rule apply in this case. She argues that her affidavit citing Mr. Kothenbeutel’s
statement established that because of the time the four men left the gentleman’s club
and were supposed to report to work, and because the other two men were assigned
to a different job site from that which the decedent and Mr. Kothenbeutel were
assigned, Mr. Kothenbeutel intended to drive the other two men directly to their
Black Star job site. After that, he and the decedent intended to drive directly to their

Black Star job site. Plaintiff argues that the fact the men were diving directly to their

work sites from the gentleman’s club rather than to their hotel provides the basis for

the two exceptions to the “going and coming rule.”” Plaintiff asserts that Mr.
Kothenbeutel’s statement that one of the men was a supervisor, though that man was
not identified, and the fact the men were being driven to work would satisfy the
second exception, that the employee was deemed to be on a specific mission for the
employer. /d. Additionally, if the men were being driven to the work site, or at least
some of them to one of two sites, then the fifth exception would apply, that the
employee was injured while traveling to and from different work sites. /d.

In Gomez v. Sundowner Offshore Services, Inc., 99-521 (La.App. 3 Cir.
10/6/99), 745 So.2d 104, the plaintiffs worked on an oil rig for the defendant.
Following the completion of a seven-day shift, they car-pooled home with their
supervisor, in his personal vehicle. On the way, they stopped at a bar and consumed

substantial amounts of alcohol. Upon leaving the bar, the supervisor frontally

This statement is in contrast to the affidavits of Mr. Lowery and Mr. Nevarez and the
email from Mr. Kothenbeutel, which state that they were driving to the hotel at the time of the
crash.

collided with a vehicle and was then rear-ended by another vehicle, causing injuries
to the plaintiffs. After the plaintiffs filed separate workers’ compensation claims
against the defendant/employer, it filed a motion for summary judgement asserting
that the workers’ compensation claims should be dismissed as neither employee was
in the course and scope of their employment at the time of the wreck. The WCJ
granted the defendant’s motion, dismissing the case.

On appeal, the plaintiffs asserted the judgment was improperly granted
because there was a genuine issue of material fact as to whether they were within
the course and scope of their employment, since they remained under the
supervisor’s supervision, direction, and control from the time they left the drilling
rig until they arrived home. They also asserted that the supervisor was still on a
mission for the defendant at the time of the accident because he was required to drop
off payroll records at the defendant’s office and that this fact alone created a material
issue of fact as to whether they were in the course and scope of their employment.
This court, in rejecting the plaintiffs’ position, noted there was no evidence that the
employees were under the supervision, direction and control of the supervisor. To
the contrary, the evidence established this was simply a carpool arrangement because
the supervisor lived in the same neighborhood as the plaintiffs. Whether the
supervisor was on a mission for the employer, if true, had no bearing on whether the
two plaintiffs were on a mission for the defendant, and thus, in the course and scope
of their employment. Accordingly, the judgment of the WC] that the plaintiffs were
not in the course and scope of their employment at the time of the accident was
affirmed.

This court in Rattliff v. Regional Extended Home Care Personal Services.,
L.L.C., 13-1175 (La.App. 3 Cir. 3/5/14), 134 So.3d 129, dealt with the workers’

compensation claim of a home health nurse who was involved in an automobile

accident while driving her personal vehicle from her home to the home of her
employer’s elderly client. In response to the compensation claim filed by the
plaintiff, the employer filed a motion for summary judgment asserting the claimant
was not in the course and scope of her employment at the time of the accident. The
motion for summary judgment was granted and the plaintiff appealed, asserting that
her case squarely fit within the “special mission for the employer” and the “traveling
between worksite” exceptions to the going-and-coming rule. This court, in rejecting
the plaintiff's contention that she was on a special mission for the employer, noted
that at the time of the accident, the plaintiff was following her normal routine, which
consisted of traveling from her home to the client’s home. She, therefore, was
clearly not on a special mission for the employer. Her assertion that she was
traveling from one work site, her own home, to another was also rejected, as there
was no evidence she did work for her employer at home. The court noted that the
plaintiff was required to travel to work just as every other employee travels to his or
her place of employment and that her employment relationship did not start until she
arrived at her client’s home. We find that the same rationale applies here, as the
decedent was clearly travelling either to his hotel room or to his jobsite at the time
of the accident. Under either scenario, he was not in the course and scope of his
employment.

In Orgeron on Behalf of Orgeron v. McDonald, 93-1353, pp. 5—6 (La. 7/5/94),
639 So.2d 224, 227, the Louisiana Supreme Court, in discussing the traveling
between worksites exception to the “going and coming rule,” stated:

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.

10

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.

This court in Bergeron v. Mar-Con, Inc., 97-263, p. 2 (La.App. 3 Cir.
11/26/97), 705 So.2d 232, 232-33 (emphasis added), writ denied, 98-806 (La.
5/8/98), 719 So.2d 52, in addressing the travel of employees between job sites stated:

It is well established in our law that generally an employee who
is involved in an accident while traveling to and from work is not within

the course and scope of his employment and is therefore not entitled to
worker’s compensation benefits. Kennedy v. Martin Gas

Transportation Co., Inc., 96-100 (La.App. 3 Cir. 8/21/96); 680 So.2d

1195, 1197, writ denied[,] 96-2838 (La. 1/24/97); 686 So.2d 860. When

an employee is required to check in at a certain place and is then

dispatched to the work site, 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. Orgeron on Behalf of Orgeron

v. McDonald, 93-1353 (La.7/5/94); 639 So.2d 224, 227.

In the present case, there are no material facts in dispute. The men were on
their own time eating and drinking into the early hours of the morning, then were
either returning to their hotel room, as set forth in Black Star’s submissions, or
travelling to work prior to the crash, if consideration is given to the hearsay
statements of Mr. Kothenbeutel within Plaintiff's affidavit. As stated above, the
outcome is the same under both scenarios. The men were either going to the hotel
or were travelling to work after being on their personal time eating, drinking, and
engaging in leisure activities, both of which are outside of the exceptions to the rule.
As mover, Black Star established the lack of support for at least one element of
Plaintiff's claim, and the burden shifted to her 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. La.Code Civ.P. art. 966(D)(1). Plaintiff

1]

failed to do so. There was no evidence that the men were under the supervision of
any supervisor, nor were they on a mission for Black Star. Plaintiff's argument that
the “going-and-coming rule” should not apply in this case fails because there is no
material fact in dispute that the men had not made it to any jobsite when the accident
occurred, nor were they between jobsites. Plaintiff states in her own affidavit, as
having lived with the decedent for many years, that his work hours for Black Star
were typically from 6:00 a.m. to 6:00 p.m. She further admits in her affidavit that
the men had actually gotten off of work the previous evening at 6:00 p.m. and that
the crash occurred around 4:00 a.m. Accordingly, we find that no exception to the
“going and coming rule” is applicable here, and that the decedent was not in the
course and scope of his employment at the time of the crash.

Having determined that there is no issue of material fact that decedent was
outside the course and scope of his employment, the remaining allegations of error
are moot. No credibility determination was necessary in the decision to grant the
summary judgment, and even considering Plaintiff's affidavit, no material issue of
fact is raised concerning the issue of course and scope at the time of the accident.

Accordingly, Black Star is entitled to judgment as a matter of law, as the
decedent was not within the course and scope of his employment at the time of the
accident.

DECREE

For the forgoing reasons, the judgment of the workers’ compensation court
granting the motion for summary judgment in favor of Black Star Energy Services,
LLC, dismissing this action with prejudice, is affirmed. Costs of this appeal are
assessed to Celeste Reed.

AFFIRMED.

12