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Elmuflihi v. Central Oil & Supply Corp.

Court of Appeals of Louisiana, Second Circuit

November 1, 2017

SADEQ ELMUFLIHI Plaintiff-Appellant
v.
CENTRAL OIL & SUPPLY CORP. & NORTHSIDE STORES, LLC Defendants-Appellees

         Appealed from the Office of Workers' Compensation, District 1-E Parish of Ouachita, Louisiana Trial Court No. 14-07455 Brenza Irving Jones Workers' Compensation Judge

          STREET & STREET By: Curtis D. Street Counsel for Appellant

          STAINES & EPPLING By: Thomas J. Eppling Lance E. Harwell Counsel for Appellee, Central Oil & Supply Corporation

          NEAL G. JOHNSON, LLC By: Neal G. Johnson Counsel for Appellee, Northshore Stores, LLC

          Before WILLIAMS, GARRETT, and STONE, JJ.

          WILLIAMS, J.

         In this workers' compensation case, the claimant, Sadeq Elmuflihi, appeals a summary judgment in favor of the defendant, Central Oil & Supply Corporation, and the denial of his motion for partial summary judgment. The claimant also appeals the award of weekly workers' compensation benefits in the amount of $208.33. The defendant, Northside Stores, LLC, has answered the appeal, contesting the finding that the claimant was injured in the course and scope of his employment. For the following reasons, we affirm.

         FACTS

         The claimant, Sadeq Elmuflihi, was employed as a cashier at a convenience store in Monroe, Louisiana. The defendant, Northside Shores, LLC ("Northside"), owned the store;[1] the defendant, Central Oil & Supply Corporation ("Central Oil"), owned the premises and leased them to Northside. Central Oil, which is in the business of distributing and supplying fuel throughout the United States, also supplied oil and gasoline to Northside's convenience store pursuant to a consignment agreement.

         On July 16, 2014, the claimant and another employee, Larry Briggs, closed the convenience store at 11:00 p.m. The claimant provided Briggs with a ride home, as was their usual routine. The claimant locked the door to the store from the outside and he and Briggs entered his vehicle, which was parked in front of the store. As the claimant attempted to drive away from the store, an unknown assailant approached the vehicle and began to fire a gun at the vehicle. The claimant suffered a gunshot wound to the neck and was rendered unconscious; the vehicle came to a stop after it struck a nearby residence.[2] The claimant was severely injured and his medical records indicate that he continues to exhibit marked weakness in his arms and legs.[3] Northside was uninsured at the time of the incident.

         On October 15, 2014, the claimant filed a disputed claim for workers' compensation, naming "Central Oil & Supply Corp., d/b/a Hardy Mart" as his employer.[4] The claimant alleged that he was entitled to "benefits for permanent, total disability due, alternatively TTDs or SEBs, with medical benefits, penalties, attorney fees, legal interest and all costs[.]" Central Oil answered the petition, asserting that it was not the claimant's employer and that the claimant was not injured in the course and scope of his employment.

         On January 12, 2015, the claimant filed a supplemental and amending petition, alleging that Northside was his direct employer and that Northside was "liable, in solido, with the statutory employer." More specifically, the claimant alleged Northside and Central Oil were engaged in a joint venture by virtue of the lease and consignment agreements, and both entities were liable to him for workers' compensation benefits. Northside answered the petition, admitting that the claimant was its employee. However, Northside contended the claimant was not injured in the course and scope of his employment.

         Subsequently, the claimant filed a motion for partial summary judgment, seeking a judgment declaring Central Oil and Northside liable to him for workers' compensation benefits. He argued that his duties as a cashier required him to manage the sales of gasoline for Central Oil, which was engaged in a joint venture with Northside. According to the claimant, since Northside (the direct employer) was uninsured at the time of the incident, Central Oil was liable to him for workers' compensation benefits.

         Thereafter, Central Oil filed a motion for summary judgment, arguing that it was not engaged in a joint venture with Northside. In support of its motion, Central Oil attached the following exhibits: a copy of the lease agreement between it and Northside; a copy of the consignment agreement between it and Northside; the affidavit of its president, Hardeman Cordell, in which Cordell denied the existence of a joint venture; and excerpts from the deposition of Khaled Nagi, Northside's representative, in which Nagi testified that Northside and Central Oil were not involved in a partnership or joint venture.

         The WCJ denied the claimant's motion for partial summary judgment and granted summary judgment in favor of Central Oil. The WCJ stated, "[A]lthough I do find that the consignment agreement is very detailed, I am unable to find that a combination of the contract of lease and the consignment agreement equates to a joint venture." The WCJ dismissed Central Oil from the proceedings.[5]

         The claimant proceeded to trial with Northside as the remaining defendant. Following the trial, the WCJ concluded that the claimant was injured in the course and scope of his employment. The WCJ stated:

At the time immediately preceding the shooting, claimant and his coworker, Mr. Briggs, were in the process of completing a close-out procedure on behalf of defendant. It is reasonable for claimant to be considered "in the act of leaving" during this close-out procedure. Thereafter claimant locked and secured the premises of defendant. It is also reasonable for claimant to be considered "in the act of leaving" during that process. Furthermore, claimant entered his vehicle and was leaving the parking lot of defendant when he was shot. He was both literally and jurisprudentially "in the act of leaving" at the time he sustained injury. Inasmuch as he was in the act of leaving, he's entitled to "a reasonable period" while still on the employer's premises and he must be regarded as being within the course and scope of employment.
Defendants failed to present evidence that the shooting arose out of a dispute with another person over matters unrelated to the employment. According to Detective Kent, the assailant was never apprehended and the motive for the shooting was never discovered.

         The WCJ concluded that the claimant was entitled to the "payment of all medical expenses related to his work related injury, including treatment received in the state of California." Initially, the WCJ awarded temporary total disability benefits in the amount of $312.50 per week from July 14, 2014, to August 4, 2016. The WCJ also awarded supplemental earnings benefits "in the same amount from August 4, 2016 and continuing in accordance with law." Further, the WCJ awarded penalties in the amount of $4, 000 and attorney fees in the amount of $5, 000. Thereafter, the WCJ amended the judgment to reduce the amount of weekly benefits to $208.33.[6]

The claimant appeals. Northside has answered the appeal.

         DISCUSSION

         The claimant contends the WCJ erred in granting summary judgment in favor of Central Oil and denying his motion for partial summary judgment. He argues that the evidence established that Northside and Central Oil were engaged in a joint venture. The claimant also argues that the terms of the consignment agreement reveal that a joint venture existed for the following reasons: Northside's employees were responsible for selling Central Oil's oil and gasoline products; the store operated under the name "Hardy Mart"; Central Oil retained the right to determine the price of the gasoline and the obligation to maintain the gasoline pumps; Northside was required to operate during certain hours; Northside's employees were required to wear certain uniforms; Northside received a share of the profits derived from the sale of gasoline; Northside's employees were required to read the gas meters to determine the amount of gasoline sold and to provide a daily report of the sales; and Northside's employees were responsible for changing the signage to reflect the cost of gasoline when instructed to do so by Central Oil.

         At the time the instant lawsuit was filed, La. C.C.P. art. 966(B)(2) provided, in pertinent part:

[A motion for summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law[.]

         Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Garrison v. State Farm Fire & Cas. Co., 51, 245 (La.App. 2 Cir. 4/5/17), 217 So.3d 586; Argonaut Great Central Ins. Co. v.Hammett, 44, 308 (La.App. 2 ...


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