TOMMIE HEBERT, ET UX.
J. ORAN RICHARD, ET AL
[Copyrighted Material Omitted]
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. C20081200. HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE.
James Cleverly Klick, Joseph E. (Jed) Cain, Mikalia M. Kott, Danielle T. Hufft, Herman, Herman & Katz, New Orleans, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS: Tommie Hebert, Melissa Anne Hebert.
Joseph R. Joy, III, Jospeh Joy & Assoc., Lafayette, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS: Melissa Anne Hebert, Tommie Hebert.
Kenneth Hugh Laborde, Brendan P. Doherty, Gieger, Laborde & Laperouse, New Orleans, LA, COUNSEL FOR DEFENDANTS/APPELLEES: J. Oran Richard, Industrial Helicopters, Inc., Allianz Global Risks U.S. InsuranceCompany, Game Management, Inc., Michael David Richard.
Charles R. Sonnier, Attorney at Law, Abbeville, LA, COUNSEL FOR DEFENDANTS/APPELLEES: Game Management, Inc., Allianz, Global Risks U.S. InsuranceCompany, Michael David Richard, Industrial Helicopters, Inc., J. Oran Richard.
Court composed of John D. Saunders, Shannon J. Gremillion, and David Kent Savoie, Judges.
[15-8 La.App. 3');">8 La.App. 3 Cir. 1] JOHN D. SAUNDERS,
Tommie and Melissa Hebert (hereafter collectively " Appellants" ) appeal a judgment rendered in accordance with a jury verdict in favor of defendant, Industrial Helicopters, Inc. (hereafter " Industrial" ), finding that Tommie Hebert (hereafter individually " Hebert" ) was in the course and scope of employment with Industrial at the time of injury. For the following reasons, we reverse in part and render, affirm in part, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY:
On March 3, 2007, Tommie Hebert sustained severe injuries when he fell to the ground from a moving helicopter that was owned by Industrial. Industrial's principal business was aerial herbicide application. Industrial also supplied helicopters for fish and game surveys and captures. It is undisputed that, at the time of his accident, Hebert had been employed by Industrial for nearly thirty years, primarily as a commercial fuel truck driver.
The owner and president of Industrial, defendant, J. Oran Richard (hereafter " J. Oran" ) also owned a company named Game Management, Inc. (hereafter " GMI" ). GMI leased large tracts of land for hunting, fishing, farming, and ranching in Louisiana and Texas. GMI also performed wildlife surveys in Mexico, during which it aerially tracked and captured deer.
Employees of Industrial sometimes worked for other businesses owned by J. Oran, including GMI. J.Oran testified that Hebert did work " across the board," but that he primarily drove a truck for Industrial. Defendant, Michael Richard (hereafter " Richard" ), who was J. Oran's son and an employee of Industrial, asked Hebert to serve as a deer netter in Mexico for the weekend that the accident occurred.
[15-8 La.App. 3');">8 La.App. 3 Cir. 2] Following the accident in Mexico, on February 28, 2008, Appellants filed a petition for damages against J. Oran Richard, Michael Richard, Industrial, GMI, and various other entities owned by J. Oran and Richard, alleging that he was not in the course and scope of his employment with Industrial when he fell from the helicopter and that he was an exclusive employee of Industrial. Several defendants were dismissed. In 2009, the remaining defendants filed a motion for summary judgment, alleging entitlement to workers' compensation immunity. The trial court granted the motion, and found that GMI was Hebert's special employer who had borrowed him from his general employer, Industrial. Under the borrowed servant doctrine and La.R.S. 23:1031(C), the trial court found that Industrial and GMI were solidarily liable for worker's compensation benefits and, therefore, were immune from suit in tort. Appellants appealed. On appeal, a panel of this court found that genuine issues of material fact precluded summary judgment, reversed the trial court's grant of summary judgment, and remanded the case to the trial court for further proceedings, explaining:
GMI is not a borrowing employer. Further, the control by Industrial in this case renders Industrial, but not GMI,
liable for workers' compensation benefits and entitled to tort immunity if Mr.
Hebert was in
the course and scope of his employment with Industrial at the time of his
accident. Industrial states that he was not. Based upon the foregoing, the
trial court erred as a matter of law in finding borrowed servant status in
this case and in granting summary judgment to Defendants on that issue.
Hebert v. Richard, 10-1417, pp. 15-16 (La.App. 3 Cir. 7/6/11), 72 So.3d 892, 903.
Following remand, Appellants filed a motion for partial summary judgment, asserting no genuine issue of material fact existed pertaining to the issue of Industrial's immunity from tort liability under La.R.S. 23:1032, et seq. because Industrial judicially admitted Hebert's injuries did not occur in the course and [15-8 La.App. 3');">8 La.App. 3 Cir. 3] scope of his employment with Industrial. Appellants' motion was denied and they sought a supervisory writ, which was denied on the ground that Appellants failed to show that a remedy through an appeal would be inadequate. Hebert v. Richard, 14-511 (La.App. 3 Cir. 5/21/14)(unpublished opinion).
Jury trial was held on May 27, 2014. At the close of evidence, Appellants moved for a directed verdict on the issue of Hebert's employment status; the motion was denied. The jury found that Hebert was in the course and scope of his employment with Industrial at the time of the accident, that Industrial had a duty to Hebert, that the duty was breached, and that the breach was the actual cause of Hebert's injuries. The jury further found that GMI owed Hebert no legal duty. Hebert was assigned fifty-six percent fault and Industrial forty-four percent. On June 18, 2014, the trial court entered judgment in favor of Industrial based upon the jury's finding that Hebert was in the course and scope of his employment with Industrial. Appellants appealed.
In their appeal, Appellants assert the trial court erred in:
1. denying Appellants' motion for summary judgment and allowing Industrial to assert immunity as Hebert's direct employer because Industrial judicially confessed that Hebert was not in the course and scope of his employment with Industrial at the time of the accident;
2. refusing to admit as evidence Appellants' statement of uncontested facts and Industrial's statement of contested facts in which they admitted Hebert was not in the course and scope of his employment with Industrial at the time of the accident;
3. denying Appellants' motion for directed verdict relative to the issue of his employment status with Industrial at the time of the accident;
4. alternatively, in light of the trial court's errors in instructing the jury and in excluding Appellants' evidence, that the trial court should determine on the record that Industrial did not meet of its burden of proof on the issue of whether Hebert was in the course and scope of his employment with Industrial at the time of the accident; and
[15-8 La.App. 3');">8 La.App. 3 Cir. 4] 5. failing to instruct the jury on the elements of an employer-employee relationship; and
6. failing to instruct the jury to presume certain documents did not exist because they were not produced; and
7. that the jury manifestly erred in its award of special damages when the uncontroverted evidence proves that Hebert's special damages exceeded the amount awarded.
ASSIGNMENT OF ERROR NUMBER ONE:
In its first assignment of error, Hebert asserts that the trial court erred in finding that Industrial had not judicially confessed that Hebert was not in the course and scope of his employment with Industrial at the time of the accident. By this assignment, Appellants ask that we find the trial court erred when it allowed Industrial to make arguments concerning Hebert's employment status when it alleged contrary facts in its pleadings. After review of the record, we find that Industrial judicially confessed that Hebert was not in the course and scope of his employment with Industrial at the time of the accident.
Standard of Review on Summary Judgment
The ruling of the trial court on a motion for summary judgment is reviewed de novo. Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09-69 (La. 3/6/09), 3 So.3d 491. The appellate court applies " the same criteria that govern a trial court's determination of a motion for summary judgment." Breaux v. Cozy Cottages, LLC,
14-486, p. 4 (La.App. 3 Cir. 11/12/14), 151 So.3d 183, 187. " The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. . . . The procedure is favored and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). A motion for summary judgment:
[15-8 La.App. 3');">8 La.App. 3 Cir. 5] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(B)(2).
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion 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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ.P. art. 966(C)(2). An employer seeking to claim immunity from tort pursuant to La.R.S. 23:1032 bears the burden of proving entitlement. Tilley v. Boise Cascade Corp., 09-1072 (La.App. 3 Cir. 3/10/10), 32 So.3d 1130, writ denied, 10-767 (La. 6/9/10), 38 So.3d 310. Thus, Hebert, as the movant, has the initial burden of proof on his motion for summary judgment. However, at trial, Industrial, as the employer, has the burden to prove that it is entitled to workers' compensation immunity. Thus, Industrial ...