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Charles v. Moore Petroleum, Inc.

Court of Appeals of Louisiana, First Circuit

January 23, 2018

RUSSELL CHARLES AND CONSANDRA CHARLES
v.
MOORE PETROLEUM, INC., POWER PETROLEUM, INC., AND MOORE PROPERTIES, LLC

         On Appeal from the Eighteenth Judicial District Court In and for the Parish of Iberville State of Louisiana No. C72659 Honorable Edward J. Gaidry, Judge Pro Tempore Presiding

          Frank Tomeny, III Baton Rouge, Louisiana Counsel for Plaintiffs/ Appellants Russell Charles and Consandra Charles

          Howard L. Murphy New Orleans, Louisiana Counsel for Defendants/ Appellees Moore Petroleum, Inc., Power Petroleum, Inc., and National Fire and Marine Insurance Company

          Brian K. Abels Maryanna B. Haynes Denham Springs, Louisiana Counsel for Intervenors Hallmark Specialty Insurance

          BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ.

          WHIPPLE, C.J.

         Plaintiffs, Russell Charles and Consandra Charles, appeal a judgment of the trial court granting summary judgment in favor of defendants, Moore Petroleum, Inc., Power Petroleum, Inc., and National Fire and Marine Insurance Company, and dismissing with prejudice plaintiffs' claims against these defendants. For the following reasons, we reverse.

         FACTS AND PROCEDURAL HISTORY

         On October 25, 2012, Russell Charles was operating a vehicle and pulling a flatbed trailer on Interstate 10 in Iberville Parish when he was struck from behind by a Dodge Ram pick-up truck operated by Mark Moore and owned by Moore Leasing, LLC, a company owned by Moore and his wife, Paulette Moore, and insured by State Farm Mutual Automobile Insurance Company ("State Farm").

         On May 2, 2013, Moore signed an affidavit stating that he was not in the course and scope of his employment or on a mission for any party at the time of the October 25, 2012 accident and that the State Farm policy was the only available liability insurance policy that would provide coverage to Russell Charles for his injuries sustained in the automobile accident.

         Thereafter, on May 9, 2013, Russell and Consandra Charles signed a release, stating that in consideration of their receipt of fifty-thousand ($50, 000.00) dollars, they released all claims against Moore Leasing, LLC, Mark Moore, Paulette Moore, State Farm, and "all other persons, firms or corporations liable or, who might be claimed liable" for the October 25, 2012 accident.[1]

         On June 6, 2013, the Charleses filed the instant suit, seeking damages for Russell Charles's injuries sustained in the October 25, 2012 accident and Consandra Charles's loss of consortium, naming as defendants three companies owned by Moore and his wife, namely: Moore Petroleum, Inc., Power Petroleum, Inc., and Moore Properties, LLC. The petition alleged that Moore was in the course and scope of his employment with these corporations at the time of the accident, and thus, these corporations were vicariously liable. By amended petition, the Charleses also named as an additional defendant National Fire and Marine Insurance Company ("National Fire"), as the insurer of Moore Petroleum, Power Petroleum, and/or Moore Properties.[2]

         In response to the petition, defendants Moore Petroleum and Power Petroleum raised the affirmative defenses of compromise, settlement, and res judicata, and National Fire pled the affirmative defense of release and discharge on account of compromise and settlement. Thereafter, Moore Petroleum, Power Petroleum, and National Fire filed a motion for summary judgment, seeking a dismissal of the Charleses' claims against them on the grounds that: (1) Mark Moore was not acting in the course and scope of employment for either Moore Petroleum or Power Petroleum at the time of the accident, and (2) the May 9, 2013 release agreement signed by the Charleses precludes any action they had against Moore Petroleum, Power Petroleum, and National Fire as the release was granted in favor of the listed parties and "all other persons, firms or corporations liable or who might be claimed to the liable[.]"

         The Charleses opposed the motion for summary judgment, contending that: (1) the defendants did not submit competent and admissible summary judgment evidence, as the affidavits submitted by the defendants in support of the summary judgment were not signed by the affiants and, although defendants sought to substitute the unsigned affidavits, the substitution was untimely; (2) genuine issues of material fact remained as to whether Moore was legally in the course and scope of his employment with Power Petroleum at the time of the accident, as there was other evidence showing that at the time of the accident, Moore was abruptly returning from Alabama and communicating with others about Power Petroleum's ...


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