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Schmit v. Tjitandi

Court of Appeals of Louisiana, First Circuit

June 2, 2017

BRUCE SCHMIT, JR., INDIVIDUALLY AND ON BEHALF OF HIS MINOR DAUGHTERS, SAMANTHA M. SCHMIT AND BAILEY A. SCHMIT
v.
SETRIED TJITANDI, QUALIFIED CABLE CONTRACTOR, LLC AND PROGRESSIVE INSURANCE COMPANY

         Appealed 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

          Jack 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.

          David J. Schexnaydre Mandeville, Louisiana Counsel for Defendants/ Appellees Progressive Insurance Group, Qualified Cable Contractor, LLC, and Setfried Tjitandi.

          BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         The 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, [1] 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.

         FACTS AND PROCEDURAL HISTORY

         On 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 him.

         On 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."

         On 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.

         On 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.

         On June 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 appeals.

         ASSIGNMENTS OF ERROR

         Mr. 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 ...


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