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Bowdoin v. WHC Maintenance Services, Inc.

Court of Appeals of Louisiana, Third Circuit

October 25, 2017

DUSTIN WILLIAM BOWDOIN
v.
WHC MAINTENANCE SERVICES, INC., ET AL.

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20145420 HONORABLE DAVID M. SMITH, DISTRICT JUDGE

          Robert E. Kerrigan, Jr. Raymond Lewis Deutsch, Kerrigan, & Stiles & Stiles COUNSEL FOR DEFENDANT/APPELLANT: AIG Specialty Insurance Company

          Edwin G. Preis, Jr. M. Benjamin Alexander Preis PLC COUNSEL FOR DEFENDANTS/APPELLANTS: Zurich American Insurance Company WHC Maintenance Services, Inc. WHC, LLC

          Louis C. LaCour, Jr. Adams and Reese, LLP COUNSEL FOR DEFENDANT/APPELLANT: AIG Specialty Insurance Company

          Chad E. Mudd David P. Bruchhaus M. Keith Prudhomme Matthew P. Keating Mudd & Bruchhaus, LLC COUNSEL FOR PLAINTIFF/APPELLEE: Dustin William Bowdoin

          Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.

          JOHN D. SAUNDERS JUDGE

         This is a case involving a motor vehicle accident in which Plaintiff sustained serious injuries. Plaintiff, who resides in Louisiana, was recruited by a pipeline employee to work with him at a pipeline construction and maintenance company performing work in Florida. As agreed, the employee picked Plaintiff up in Louisiana to transport him to the job location in Orlando, Florida. Prior to arriving in Orlando, the employee's personal vehicle in which they were traveling, broke down twice. Plaintiff attempted to assist the employee in towing the inoperable vehicle by steering it as the employee pulled it with a company vehicle and towing assembly. Ultimately, the employee accelerated to 55 miles per hour, which caused Plaintiff to lose control of the inoperable vehicle, and the vehicle flipped. As a result, Plaintiff sustained severe injuries resulting in paraplegia.

         Following the accident, Plaintiff sued the employee's employer and its insurers claiming that the employee was in the course and scope of his employment at the time of the accident which rendered his employer vicariously liable for Plaintiff's injuries. The employer and its insurers filed a motion for summary judgment alleging that employer's employee was not in the course and scope of employment at the time of the accident. In response, Plaintiff filed a motion for summary judgment that the employee was in the couse and scope of his employment at the time of the accident. The trial court granted Plaintiff's motion and denied the employer and its insurers' motion. The employer and its insurers have appealed. FACTS AND PROCEDUREAL HISTORY:

         Plaintiff, Dustin William Bowdoin ("Bowdoin"), was recruited by Devin Badon ("Badon"), an employee of WHC Maintenance Services, Inc. ("WHC"). WHC is a large pipeline construction and maintenance company based in Louisiana which performs work on gas pipelines throughout the country. At the time, WHC was performing projects at multiple locations throughout the state of Florida (the "Florida projects"), and was experiencing a labor shortage.

         While working on the Florida projects, Badon was employed by WHC as a temporary laborer with an hourly wage. WHC paid crewmembers a per diem for their travel and lodging expenses, as travel and effectively relocating are critical components of the work of pipeline construction for workers like Badon, who are required to move from project to project. The project for which Bowdoin had been recruited was scheduled to begin on Tuesday, May 27, 2014.

         On Friday, May 23 2014, Badon, having completed work on a project in Perry, Florida, left his camper trailer he had previously towed there for the purpose of staying at campsites near the various WHC job locations, and drove to Louisiana where he picked up Bowdoin. Badon's intent was to get back from Louisiana to the Perry, Florida campsite, retrieve his camper, and relocate it to the Orlando job location so that he and Bowdoin would be staged and ready to work on the date the project was scheduled to begin. En route back to Florida, Badon's vehicle broke down twice. The first time, Roy O'Quinn ("O'Quinn"), a WHC labor foreman whose responsibilities included making sure WHC employees made it to the next job site, came to Badon's aid in a WHC company vehicle, and, using a WHC towing assembly, towed Badon's vehicle to an auto parts store so that he could have it repaired. When Badon's efforts to repair the vehicle failed, O'Quinn towed Badon's vehicle to the Perry campsite. Badon and Bowdoin then rode back to Orlando, Florida, with O'Quinn. The following day, Saturday, May 24, 2014, on which Badon and the entire WHC crew was being paid a per diem, WHC Foreman Chris Aguillard ("Aguillard") loaned Badon his WHC company vehicle and towing assembly for the purpose of retrieving Badon's vehicle and camper from the Perry campsite and relocating it to the Orlando job location. Bowdoin assisted Badon by attempting to steer Badon's inoperable vehicle as Badon towed it. When Badon accelerated to 55 miles per hour, Bowdoin lost control of the inoperable vehicle, and it flipped. As a result, Bowdoin sustained severe injuries resulting in paraplegia.

         Bowdoin filed suit against WHC, Zurich American Insurance Company, and AIG Specialty Insurance Company (collectively "Defendants") alleging, inter alia, that Badon was in the course and scope of his employment with WHC, and, as such, WHC was vicariously liable unto him for Badon's actions. Defendants filed a motion for summary judgment asserting that Badon was not acting within the course and scope of his employment with WHC at the time of the accident. Bowdoin filed an opposition to that motion and a cross motion for summary judgment asserting that Badon was within the course and scope of his employment with WHC at the time of the accident.

         The trial court denied Defendant's motion and granted Bowdoin's motion finding that Badon was within the course and scope of his employment with WHC at the time of the accident. ...


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