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Washington v. Gallo Mechanical Contractors, LLC

Court of Appeals of Louisiana, Fourth Circuit

May 17, 2017


         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 16-00143, DISTRICT "EIGHT" Honorable Robert Varnado, Workers' Compensation Judge



          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart

          Daniel L. Dysart Judge

         In this worker's compensation matter, appellant, Steven Frederick Washington, appeals the workers' compensation judgment granting summary judgment in favor of Mr. Washington's employer, Gallo Mechanical Contractors, L.L.C. ("Gallo"). For the reasons that follow, we affirm.


         Mr. Washington initiated this matter by filing a Disputed Claim for Compensation ("Claim") with the Office of Workers' Compensation ("OWC") on January 8, 2016. In his Claim, Mr. Washington alleged that, on December 7, 2015, while driving a shuttle for Gallo for a work-related project, he was assaulted by an employee of Savard Labor and Marine Personnel, [1] which resulted in injuries to Mr. Washington's head, neck, back and shoulders. In response, Gallo and its insurer, Creative Risk Solutions ("CRS")(hereafter, collectively referred to as "defendants") filed an answer, admitting that no wage benefits or costs for medical treatment had been paid. As affirmative defenses, Gallo and CRS alleged:

According to defendant's [sic] investigation, an employee of Gallo Mechanical, Steven Washington, was operating a shuttle at the time of this incident. He serves as the initial aggressor as he called the other person involved a "homosexual, " and then stating "do you know what I could do to you that I learned in the pen?" Thus, Mr. Washington antagonized Mr. Rogers causing this altercation. Furthermore, this fight was not work-related. Because this incident involved fighting that is considered an intentional act and excluded by the Louisiana Workers' Compensation Act, there exists no coverage under the Act for Mr. Washington's aggressive behavior, the altercation, and the resulting injury.

         On February 11, 2016, Defendants filed a Motion for Summary Judgment ("Motion") seeking a dismissal of the Claim on the basis that the injuries claimed by Mr. Washington did not occur "in the course of" and did not "ar[i]se out of" his employment. A hearing was scheduled for March 10, 2016 and Mr. Washington filed his opposition memorandum on March 3, 2016 (the certificate of service reflects that it was served on opposing counsel by mailing it on March 1, 2016). Defendants moved to strike Mr. Washington's opposition memorandum as untimely and the attachment to it (excerpts of a February 11, 2016 hearing on Mr. Washington's Expedited Motion for Medical Authorization[2]) because it is not considered to be competent evidence under La. C.C.P. art. 966.

         At the March 10, 2016 hearing on defendants' Motion, counsel for Mr. Washington sought to file into the record an affidavit from Mr. Washington. After hearing argument of counsel, the OWC judge granted defendants' motion to strike and their Motion. A written judgment was then issued on March 18, 2016 in favor of defendants, striking Mr. Washington's opposition memorandum (and attachments) as untimely, and dismissing Mr. Washington's claims against defendants. Mr. Washington then moved for a new trial which was denied after a hearing and by judgment dated June 29, 2016. Mr. Washington timely filed this devolutive appeal.


         Standard of review; Motions for Summary Judgment

         This Court recently reiterated the well-settled rule that a "summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Vise v. Olivier House Prop. Mgmt., LLC, 16-0741 (La.App. 4 Cir. 4/12/17), ___So.3d___, ___, 2017 WL 1365316 at *2, quoting Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83.

         Louisiana Code of Civil Procedure article 966 A(3) indicates that "a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." This is in keeping with the purpose of the summary judgment procedure, which is "to secure the just, speedy, and inexpensive determination of every action…." La. C.C.P. art. 966 A(2). This "procedure is favored and shall be construed to accomplish these ends." Id.

         Under La. C.C.P. art. 966(D)(1), "if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover'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. C.C.P. art. 966 D(1).

         In the instant matter, defendants do not carry the burden of proof for trial; accordingly, they need only point out an absence of factual support for one or more elements of Mr. Washington's claim. Defendants contend that Mr. Washington cannot meet his burden in proving that the incident resulting in his alleged injuries arose out of his employment, an essential element of any workers' compensation claim under La. R.S. 23:1031.[3] After our de novo review of the record, we agree.

         At the outset, we address Mr. Washington's argument that the trial court erred in refusing to allow the transcript of the February 11, 2016 evidentiary hearing in opposition to defendants' Motion and in failing to take judicial notice of Mr. Washington's sworn testimony from that hearing. We note that, in his reasons for judgment issued on July 25, 2016, the OWC judge found, inter alia, that Mr. Washington's opposition memorandum, served on March 1, 2016 [and filed in the record on March 3, 2016], was ...

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