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Berard v. Lemoine Co., LLC

Court of Appeal of Louisiana, Third Circuit

July 8, 2015

TONY BERARD, ET UX.
v.
THE LEMOINE COMPANY, LLC, ET AL

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. C-20130922. HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE.

AFFIRMED.

C. Roan Evans, The Glenn Armentor Law Firm, FOR PLAINTIFFS/APPELLANTS: Tony Berard, Mona Berard.

Foster P. Nash, III, Travis L. Bourgeois, Degan, Blanchard & Nash, New Orleans, LA, FOR DEFENDANT/APPELLANT: Schilling Acqusitions, Inc.

William H. Parker, III, Allen & Gooch, Lafayette, LA, FOR DEFENDANT/APPELLEE: The Lemoine Company, LLC.

Court composed of Jimmie C. Peters, John E. Conery, and David Kent Savoie, Judges.

OPINION

Page 840

[15-152 La.App. 3 Cir. 1] PETERS, J.

The plaintiffs, Tony Berard and Mona Berard, brought a personal injury lawsuit against a number of defendants to recover the damages they suffered as a result of an industrial accident involving Mr. Berard. The Berards and one of the defendants, Schilling Acquisitions, Inc., appeal the trial court's grant of summary judgment dismissing one of the other defendants, The Lemoine Company, LLC, as a party defendant. For the following reasons, we affirm the trial court's grant of summary judgment dismissing the plaintiffs' claims against The Lemoine Company LLC.

DISCUSSION OF THE RECORD

The plaintiffs are husband and wife, and on January 5, 2012, Mr. Berard sustained severe personal injuries when he fell through a skylight while working on a building in Youngsville, Louisiana, which was owned by Schilling Acquisitions, Inc. (Schilling). On February 20, 2013, Mr. Berard brought a suit for damages against Schilling and The Lemoine Company, LLC (Lemoine), a Lafayette, Louisiana limited liability company with whom Schilling had contracted for the repair and renovation of the building. On March 8, 2013, an amendment to the original petition added Mrs. Berard as a party plaintiff.

Both defendants timely filed responsive pleadings,[1] and the issue now before us arises because Lemoine filed a motion for summary judgment on April 21, 2014, seeking dismissal from the litigation based on the argument that it was Mr. Berard's statutory employer; thus, its sole responsibility to him is under the Louisiana Workers' Compensation Act. After an October 20, 2014 hearing, the [15-152 La.App. 3 Cir. 2] trial court agreed with this argument and granted summary judgment dismissing Lemoine as a party defendant. The trial court executed a judgment to that effect on November 3, 2014, and both the Berards and Schilling have appealed.

OPINION

It is well settled that Louisiana appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smitko

Page 841

v. Gulf S. Shrimp, Inc., 11-2566 (La. 7/2/12), 94 So.3d 750. Although amended multiple times in the last three years, summary judgment proceedings are still favored and are " designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La.Code Civ.P. art. 966(A)(2). With regard to the evidentiary requirements of a summary judgment action, La.Code Civ.P. art. 966(B)(2) provides, in pertinent part, that:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for 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.

With regard to the burden of proof applicable to a summary judgment proceeding, La.Code ...


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