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Thibodeaux v. Geico Casualty Co.

Court of Appeals of Louisiana, Third Circuit

June 13, 2018

KAREN SUE THIBODEAUX
v.
GEICO CASUALTY COMPANY, ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2015-1253 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE.

          Gregory Carl Weiss Weiss & Eason, L.L.P. Counsel for Defendant/Appellant: Walgreen Louisiana Company, Inc.

          Ann Marie LeBlanc Caraway LeBlanc, L.L.C. Counsel for Defendant/Appellant: Walgreen Louisiana Company, Inc.

          David L. Viviano, Jeffery J. Guidry Counsel for Defendant/Appellee: Vivian Boutte.

          Blake R. David, Robert B. Brahan, Jr. Broussard & David, LLC Counsel for Plaintiff/Appellee: Karen Sue Thibodeaux.

          Court composed of Elizabeth A. Pickett, Billy Howard Ezell, Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

          PHYLLIS M. KEATY JUDGE.

         Defendant, Walgreen Louisiana Company, Inc, (Walgreens), appeals a judgment denying its motion for summary judgment and granting the plaintiff's cross-motion for partial summary judgment based upon its finding that Walgreens is vicariously liable for any injuries or damages sustained by plaintiff as a result of an automobile accident caused by a Walgreens employee. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff, Karen Sue Thibodeaux, was involved in a May 2, 2014 automobile accident in Lafayette, Louisiana, when her vehicle was struck by another vehicle being driven by Vivian Boutte, who was at the time employed by Walgreens. The accident occurred as Ms. Boutte was headed back to her home in Napoleonville after attending a training course recommended by her boss. A police officer who responded to the scene issued a citation to Ms. Boutte for failure to yield. As a result of the injuries she sustained in the accident, Plaintiff filed suit against Ms. Boutte and her automotive liability insurer, GEICO Casualty Company. Plaintiff also named Walgreens as a defendant, alleging that Ms. Boutte was in the course and scope of her employment with Walgreens when the accident occurred, thus making it vicariously liable for the damages caused by Ms. Boutte's actions. Walgreens denied that Ms. Boutte was in the course and scope of her employment at the time of the accident and claimed it had no liability for Ms. Boutte's negligence.

         Walgreens and Plaintiff filed cross-motions for summary judgment on the issue of Walgreen's vicarious liability for Ms. Boutte's actions. In her motion for partial summary judgment, Plaintiff also claimed that Ms. Boutte's negligence was the sole legal cause of the accident.

         Following a hearing, the trial court rendered judgment on June 1, 2017, denying Walgreens' motion for summary judgment and granting Plaintiff's cross-motion for partial summary judgment based upon its findings: "(1) that Vivian Boutte was in the course and scope of her employment with Walgreens at the time of this May 2, 2014 incident; (2) that Walgreens is vicariously liable for any injuries or damages sustained by plaintiff caused by the incident; and (3) that Vivian Boutte was the sole legal cause of this incident." Walgreens appealed and is now before this court asserting the following assignments of error:[1]

1. The trial judge erred in failing to apply the eight Orgeron[2]factors which would have dictated a finding that Ms. Boutte was not in the course and scope of her employment with Walgreens at the time of the incident and resulted in the granting of Walgreens' Motion for Summary Judgment and the denial of Plaintiff's Cross-Motion.
2. The trial judge erred in applying a broad rather than strict construction of the term "course and scope of employment" which would have resulted in the granting of Walgreens' Motion for Summary Judgment, and the denial of Plaintiff's Cross-Motion.
3. Alternatively, the trial judge erred in not finding a genuine issue of material fact as to whether Ms. Boutte was in the course and scope of her employment resulting in the denial of both summary judgment motions.

         Discussion

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action . . . . The procedure is favored and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1). "Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate." Larson v. XYZ Ins. Co., 16-745, p. 6 (La. 5/3/17), 226 So.3d 412, 416. Accordingly, we need not address Walgreens' assignments individually, but rather, we will discuss them as necessary in our discussion of whether either Plaintiff or Walgreens' met the burden of proving their entitlement to summary judgment.

         Louisiana Civil Code Article 2320 provides, in pertinent part, that "Masters and employers are answerable for the damage occasioned by their servants . . ., in the exercise of the functions in which they are employed."

In the application of Article 2320, an employer's vicarious liability for conduct not his own extends only to the employee's tortious conduct which is within the course and scope of employment. . . . Generally speaking, an employee's conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.

Orgeron, 639 So.2d at 226-27 (citations omitted).

         "An employer is generally not liable for acts committed by its employee while the employee is going to or coming from work." Voinche v. Capps, 14-671, p. 5 (La.App. 3 Cir. 12/10/14), 155 So.3d 146, 151. In discussing that general rule, the supreme court noted that "an employee's place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination." Orgeron, 639 So.2d at 227. As this court noted in Voinche, however, application of that general rule "becomes more complicated" when an employer sends its employee to a different location than where that employee normally works. Voinche, 155 So.3d at 151. This court has observed:

As has been stated many times in the jurisprudence and by textbook writers, there is no precise rule or definition by which we can determine in every instance whether the employee driver of a motor vehicle is acting within the scope of his employment. Each case must be decided largely on its own facts, keeping in mind the basic idea that the use of the vehicle at the time must have been in the service of the employer or while about the employer's business.

Rollins v. New York Fire & Marine Underwriters, Inc., 225 So.2d 663, 670 (La.App. 3 Cir. 1969), writ refused, 227 So.2d 595 (La.1969).

         In its discussion of the course and scope issue in Orgeron, the supreme court reiterated its prior pronouncement that "[a]n employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer's business." Orgeron, 639 So.2d at 227 (citing LeBrane v. Lewis, 292 So.2d 216 (La.1974)). Thereafter, the Orgeron court provided a non-exclusive list of eight factors courts should assess "in determining whether the employee's conduct is employment-rooted":

[T]he payment of wages by the employer, the employer's power of control, the employee's duty to perform the particular act, the time place and purpose of the act in relation to service of the employer, the relationship between the employee's act and the employer's business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act.

Id. Unlike the liberal construction courts are to give the phrase "'within the course and scope' of [] employment duties" in workers' compensation cases, a strict interpretation of the phrase is called for where a tort victim seeks to have an employer held vicariously liable for the conduct of its employee. Senac v. State Farm Mut. Auto. Ins. Co., 09-320, p. 4 (La.App. 3 Cir. 10/7/09), 22 So.3d 1124, 1127.

         Ms. Boutte's deposition was the primary evidence entered both in support of and in opposition to the cross-motions for summary judgment.[3] Ms. Boutte, a licensed pharmacist, stated that, on the date of the accident, she worked for Walgreens as a salaried employee in its Morgan City location. She explained that her pharmacy manager asked her to attend a training class on how to perform cholesterol testing, a service that Walgreens wanted to offer its customers for a fee. The class was being taught at the Walgreens headquarters in Lafayette, the Walgreens' "scheduler, " Rene Nuss, told her that she "needed to come in and get that additional training, " and Ms. Nuss made the arrangements for Ms. Boutte to attend that particular training session. She drove her personal vehicle to the training and submitted her mileage for reimbursement. Ms. Boutte confirmed that the Morgan City store where she worked had the equipment needed to do the cholesterol testing that she was being trained to perform. On the day of the accident, Ms. Boutte worked at the Morgan City store until about 1:00 p.m. before driving to attend the training in Lafayette. A Walgreens' employee provided the training, which began at 3:00 p.m. and lasted between thirty and forty-five minutes. Ms. Boutte recalled speaking with a Walgreens' manager for about twenty minutes before leaving for her home in Napoleonville, which was approximately ninety miles from Lafayette. She stated that she was driving cautiously because she "didn't know anything" about Lafayette.

         In its brief to this court, Walgreens admits that there are no reported Louisiana cases involving the exact factual situation presented in this appeal. Walgreens argues that application of the Orgeron factors should lead this court to reverse the trial court judgment finding that Ms. Boutte was in the course and scope of her employment when the accident occurred. It points out that Ms. Boutte's shift at its Morgan City store had ended approximately three and one-half hours before the accident occurred and that she was not paid wages during her attendance at the training nor for her travel time to and from the training. It admits, however, that Ms. Boutte was reimbursed for her mileage. Walgreens suggests that the training was optional, that Ms. Boutte was not required to attend the training to keep her job, that the training "does not show up in her personnel file, " and that the "motivation of Ms. Boutte was entirely personal and specifically to enhance her overall performance as a pharmacist, not to benefit Walgreens." It points out that the 'training was not conducted by either [Ms. Boutte's] pharmacy or district manager, but [by] a Walgreens' employee she did not know" and that testing "equipment used during the training was outdated, so the trainees could not check the results." Finally, Walgreens states that "[n]o cholesterol testing was performed at the store where Ms. Boutte worked through the time she left Walgreens' employment almost two years later, and Walgreens was actually backing off of actually performing these tests in general because it was rarely done at most of its stores."

         We find little merit to Walgreens' arguments. When an employee is told by a supervisor that he or she needs a certain type of training, that employee can hardly be expected to disregard the suggestion or to inquire whether their job depends upon completion of that training. And while there is often an element of personal enhancement when an employee attends a training class, Walgreens' suggestion that Ms. Boutte attended the class for "entirely personal" reasons borders on the absurd. Even more ridiculous is Walgreens' suggestion that Ms. Boutte's training should have been conducted by a Walgreens' employee that she personally knew. Walgreens puts much emphasis on the fact that no cholesterol testing was ever performed at the Morgan City location where Ms. Boutte worked. We find this logic to be disingenuous, as that information was gained in hindsight, and the fact remains that Ms. Boutte's supervisor asked her to attend the training, which the Walgreens' scheduler set up for May 2, 2014. Moreover, Walgreens could not have offered the testing to its customers if it had not trained its pharmacists in how to conduct such testing, and the fact that it apparently made a business decision to discontinue cholesterol testing, when it never really embraced that endeavor in the first place, can certainly not factor into our course and scope of employment analysis. Similarly, the fact the equipment on hand at its training facility was outdated when Walgreens conducted the cholesterol training of its employees reflects poorly on Walgreens. Finally, because Walgreens controlled what was placed in its employee's records, we attach little significance to the fact that any information regarding Ms. Boutte having completed the cholesterol training was not in her personnel file.

         On the other hand, our assessment of the Orgeron factors to the facts before us convince us that Plaintiff met her burden of proving the absence of genuine issues of material fact and that she was entitled to judgment as a matter of law finding that Ms. Boutte was in the course and scope of her employment with Walgreens when the accident occurred. The cholesterol training class which was held at Walgreens' headquarters in Lafayette was obviously "related to the service" of Walgreens in "time place and purpose;" Ms. Boutte's act of attending the training bore a strong "relationship" with Walgreens' business; Ms. Boutte's motivation for completing the training was to follow her supervisor's directions; and it is more than reasonable for Walgreens to expect that Ms. Boutte's would "perform the act" of completing the training her supervisor requested that she take. Orgeron, 639 So.2d at 227. We note ...


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