BRUCE SCHMIT, JR., INDIVIDUALLY AND ON BEHALF OF HIS MINOR DAUGHTERS, SAMANTHA M. SCHMIT AND BAILEY A. SCHMIT
SETRIED TJITANDI, QUALIFIED CABLE CONTRACTOR, LLC AND PROGRESSIVE INSURANCE COMPANY
from the 21st Judicial District Court In and for the Parish
of Tangipahoa State of Louisiana Case No. 2015-0000358 The
Honorable Charlotte H. Foster, Judge Presiding
E. Truitt Pamela S. Chehardy Croft Amher L. Mitchell PeterM.
Gahagan Covington, Louisiana Counsel for Plaintiff/Appellant
Bruce Schmit, Jr., individually and on behalf of his minor
daughters, Samantha M. Schmit and Bailey A. Schmit.
J. Schexnaydre Mandeville, Louisiana Counsel for Defendants/
Appellees Progressive Insurance Group, Qualified Cable
Contractor, LLC, and Setfried Tjitandi.
BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
plaintiff-appellant, Bruce Schmit, Jr., individually and on
behalf of his minor daughters, Samantha M. Schmit and Bailey
A. Schmit, appeals the trial court's ruling on opposing
motions for summary judgment rendered in favor of the
defendants-appellees, Setfried Tjitandi,  Qualified Cable
Contractor, LLC ("Qualified"), and Progressive
Insurance Company ("Progressive"). For the
following reasons, we reverse in part, affirm in part, and
remand for further proceedings.
AND PROCEDURAL HISTORY
August 20, 2014, Mr. Schmit was involved in an automobile
accident that occurred during the course and scope of his
employment with Cable Marketing Installations, Inc.
("CMI"). Mr. Schmit sustained significant bodily
injuries after being struck by a 2005 Chevrolet Express van
that was owned by Qualified, insured by Progressive, and
driven by Mr. Tjitandi. Thereafter, on February 9, 2015, Mr.
Schmit filed a tort action seeking damages against the
defendants. Mr. Schmit claimed that the accident was caused
by the negligence of Mr. Tjitandi, whom he alleged failed to
follow the proper procedure of circling the van to ensure
there were no equipment or other hazards outside of his line
of site. Mr. Schmit further asserted that Mr. Tjitandi was an
employee of Qualified acting within the course and scope of
his employment with Qualified at the time of the accident;
Mr. Schmit therefore claimed that Qualified and its liability
insurer, Progressive, should be held vicariously liable to
April 27, 2015, the defendants answered Mr. Schmit's
petition for damages and raised several affirmative defenses
thereto, including, in pertinent part, the affirmative
defense of "injury by fellow servant."
January 27, 2016, following certain pre-trial matters not at
issue on appeal, Mr. Schmit filed a motion for partial
summary judgment against the defendants. Mr. Schmit claimed
that there were no genuine issues of material fact and that
he was entitled to judgment as a matter of law with respect
to the issue of the defendants' affirmative defense of
injury by fellow servant, which Mr. Schmit styled as the
"borrowed employee" defense. In support of his
motion for partial summary judgment, Mr. Schmit argued that
Mr. Tjitandi was employed by Qualified at the time of the
accident and was not an employee or borrowed employee of CMI.
March 14, 2016, the defendants filed a cross-motion for
summary judgment and opposition to Mr. Schmit's motion
for partial summary judgment, seeking a judgment declaring
the Louisiana Workers' Compensation Act
("LWCA"), La. R.S. 23:1020.1, et seq., to
be the exclusive remedy available to Mr. Schmit. In their
memorandum in support of their motion for summary judgment,
the defendants specifically stressed that they had not
claimed, and were not claiming, that Mr. Tjitandi was a
borrowed employee of CMI. Rather, the defendants submitted
that Mr. Tjitandi was a "full on employee" of CMI
operating within the course and scope of his employment at
the time of accident in accordance with the factors set forth
in Hickman v. Southern Pacific Transport Co., 262
La. 102, 262 So.2d 385 (1972). Mr. Schmit opposed the
defendants' cross-motion for summary judgment.
20, 2016, the opposing motions for summary judgment came
before the trial court for a hearing. In open court, the
trial court orally denied Mr. Schmit's motion for partial
summary judgment and granted the defendants' cross-motion
for summary judgment. Thereafter, on July 25, 2016, the trial
court signed a final judgment denying Mr. Schmit's motion
for partial summary judgment, granting the defendants'
cross-motion for summary judgment, and ordering the dismissal
of all of Mr. Schmit's claims with prejudice. Mr. Schmit
Schmit does not present numbered assignments of error in
brief, but nevertheless specifies, in paragraph form, the
following issues for our appellate review: 1) the trial court
erred in denying his motion for partial summary judgment as
to the affirmative defense of injury by a fellow servant
being inapplicable and irrelevant; 2) the trial court erred
in granting the defendants' motion for summary judgment
dismissing his claims in light of the deposition testimony
and affidavits demonstrating that Mr. Tjitandi was an
employee of Qualified and not CMI; and 3) in the alternative,
the trial court erred in granting the defendants' motion
for summary ...