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Smith v. Moreau

Court of Appeals of Louisiana, First Circuit

June 2, 2017

KRISTOPHER SMITH
v.
RICKY E. MOREAU, MOREAU'S MATERIAL YARD, L.L.C., AND CANAL INDEMNITY COMPANY

         On Appeal from The 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. C641147 The Honorable R. Michael Caldwell, Judge Presiding

          Bryan D. Fisher Chris J. Day Baton Rouge, Louisiana Attorneys for Plaintiff/Appellant, Kristopher Smith

          Shannon Howard-Eldridge Geoffrey C. Hingle Jr. Covington, Louisiana Attorneys for Defendant/Appellee, Canal Indemnity Company

          Patrick D. DeRouen Laurie L. DeArmond New Orleans, Louisiana and Jenny Donaghey Beckham Marksville, Louisiana Attorneys for Defendants/Appellees, Ricky E. Moreau and Moreau's Material Yard, LLC

          BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

          CRAIN, J.

         The plaintiff, Kristopher Smith, appeals a summary judgment dismissing his claims against Canal Indemnity Company. We reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         Smith alleges he was injured while working at Moreau's Material Yard, LLC. He sued Moreau's and its owner, Ricky Moreau, as well as their commercial general liability insurer, Canal, alleging the accident was caused by the negligence of Moreau's and Ricky. At the time of the accident, Smith had worked at Moreau's for about two weeks. The nature of his employment is the central issue in this appeal.

         Canal filed a motion for summary judgment contending Smith's claims were not covered under its policy because of two exclusions: a "workers' compensation" exclusion, applicable to any claim covered by the workers' compensation act; and an "employee-injury" exclusion, applicable to injuries suffered by an employee of the insured in the course of his employment. In support of its motion, Canal introduced several exhibits, including an affidavit signed by Ricky Moreau attesting Smith was hired by Moreau's to perform manual labor, which included sandblasting and re-painting a truck scale. According to the affidavit, Smith was paid by the hour, and his work was directed and controlled by Ricky, who had the authority to dismiss Smith.

         In opposition to the motion, Smith argued his claim did not fall within either exclusion because he was an independent contractor. Smith testified in his deposition, which was submitted with his opposition, that he was hired during the summer to sandblast, paint, and weld the truck scale. His work was confined to refurbishing the scale, except on one occasion when he cut the grass around the scale. Smith controlled his schedule, was not supervised, and was paid $100 cash for each day he worked. He originally intended to work until school started in the fall, but the job was cut short by the accident about two weeks after he started.

         Smith also introduced Ricky's deposition. Contrary to Smith's testimony, Ricky described Smith's job more as a general laborer, stating Smith swept, cleaned, and generally assisted other employees in addition to working on the scale. When Smith worked on the scale, according to Ricky, he and Smith worked together, essentially side by side, alternating turns handling the equipment.

         Shortly before the hearing on the motion, Canal filed a reply memorandum asserting that if Smith was an independent contractor, coverage was barred by another exclusion in the policy applicable to independent contractors. This was the first mention of the independent contractor exclusion; it was not ...


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