Blanchard v. Travelers Indemnity Co

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

EDWARD F. BREAUX, JR., ET AL CIVIL DOCKET NO. 6:22-CV-05169

(LEAD)

CIVIL DOCKET NO. 6:22-CV-05254

(MEMBER)

VERSUS JUDGE DAVID C. JOSEPH

KEVIN RAY WORRELL, ET AL MAGISTRATE JUDGE DAVID J. AYO

MEMORANDUM RULING

Before the Court are two MOTIONS TO DISMISS OR, ALTERNATIVELY, MOTIONS

FOR SUMMARY JUDGMENT (the “Motions”) [Docs. 49, 51] filed by Defendants, Kevin

Ray Worrell, the City of Wilson, North Carolina, The Travelers Indemnity Company,

and Travelers Property Casualty Company of America (collectively, “Defendants”).1

The Motions are opposed by Plaintiffs Edward and Linda Breaux and Jessie and

Vickie Blanchard. [Docs. 53, 56]. The Court heard oral argument at Plaintiffs’

request on January 19, 2024. [Docs. 53, 57]. After careful consideration of the

pleadings, memoranda, summary judgment evidence, and applicable law, and for the

following reasons, Defendants’ Motions for Summary Judgment are GRANTED.

BACKGROUND

In anticipation of Hurricane Ida, Governor John Bel Edwards declared a State

of Emergency pursuant to the Louisiana Homeland Security and Emergency

Assistance and Disaster Act, La. R.S. 29:721 et seq., from August 26, 2021, to

1 Though Defendants filed their Motion under both Federal Rules of Civil Procedure 12

and 56, the Court will analyze it as a summary judgment motion under Rule 56.

September 27, 2021. [Doc. 49-3, pp. 1-2]. When Hurricane Ida struck the Louisiana

coast on August 29, 2021, the city of Houma suffered significant damage, including

widespread loss of electrical power to its residents.

Terrebonne Parish Consolidated Government (“Terrebonne Parish”), through

its Utilities Department, operates Houma’s electric system and services about 13,000

customers.2 [Doc. 49-5, p. 3]. Due to the scope of the post-hurricane devastation,

Terrebonne Parish requested assistance from Lafayette Utilities Systems (“LUS”) to

help its employees in restoring power. [Doc 49-5, p. 3]. LUS then used its mutual aid

network to request help from the City of Wilson, North Carolina (“City of Wilson”) on

behalf of Terrebonne Parish. [Doc 49-5, p. 3]. Pursuant to this arrangement,

Terrebonne Parish signed a mutual aid agreement provided to it by the City of

Wilson.3 [Doc. 49-6, pp. 98-100]. In response, the City of Wilson dispatched 13

employees to assist in the hurricane recovery effort in Louisiana. [Doc. 49-5, p. 4].

One of these employees was Kevin Ray Worrell (“Worrell”). [Doc. 49-5, p. 28].

LUS arranged for the City of Wilson employees to stay at hotels in Lafayette,

Louisiana, and commute back and forth to Houma every day to perform their duties.

2 Terrebonne Parish Consolidated Government provides complete local government

services, including a Utilities Department, which includes both the generation and

distribution of electrical power to residents of the parish.

See https://tpcg.org/index.php?f=utilities.

3 The City of Wilson also signed LUS’s Request for Mutual Aid Pursuant to APPA

Mutual Aid Agreements and Addendum. [Doc. 49-5, pp. 56-61]. The Parish President of

Terrebonne Parish signed the Louisiana Mutual Aid Agreement. [Doc. 49-6, p. 97].

Additionally, the Utilities Director for Lafayette signed the City of Wilson’s Emergency

Assistance Agreement and Addendum. [Doc. 49-6, pp. 103-113]. The Terrebonne Parish

Utilities Director also signed the City of Wilson’s Emergency Assistance Agreement and

Addendum. [Doc. 49-6, pp. 98-100].

[Doc. 49-5, p. 3]. On September 10, 2021, while driving a 2009 Ford F350 owned by

the City of Wilson back to his hotel in Lafayette from Houma, Worrell collided with

Plaintiffs’ vehicle at the Morgan City exit to Highway US 90. [Doc. 53-3, pp. 4-8].

The responding officer cited Worrell with failure to yield at a stop sign. [Doc. 53-3, p.

5]. Plaintiffs brought two separate negligence actions against Defendants, which

were consolidated by the Court. [Doc. 14].

Because of the subject accident’s nexus with hurricane recovery efforts,

Defendants now raise by way of the Motions the affirmative defense of immunity

under the Louisiana Homeland Security and Emergency Assistance and Disaster

Act’s immunity provision, La. R.S. 29:735(A)(1). [Docs. 47, 48]. The Motions are now

ripe for ruling.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when, viewing the evidence in the light

most favorable to the non-movant, the court determines, “that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). When considering a motion for summary judgment, the

court does not weigh the evidence to determine the truth of the matter asserted but

simply determines whether a genuine issue for trial exists, and “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 106 S.

Ct. 2505, 2510 (1986). However, when the relevant facts are undisputed, the court

“need only decide whether those undisputed facts ... entitle the movant to judgment

as a matter of law.” Flowers v. Deutsche Bank Nat'l Tr. Co., 614 F. App'x 214, 215

(5th Cir. 2015).

LAW AND DISCUSSION

This Court’s jurisdiction over this matter is premised on the parties’ diversity

of citizenship and no claims or defenses arise under federal law or the laws of another

jurisdiction. Accordingly, the substantive law of the State of Louisiana applies to the

asserted claims. U.S.C. § 1332; see Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817,

82 L. Ed. 1188 (1938); Nat'l Liab. & Fire Ins. Co. v. R & R Marine, Inc., 756 F.3d 825,

834 (5th Cir. 2014).

The Louisiana Legislature promulgated the Homeland Security and

Emergency Assistance and Disaster Act (the “LHSEADA” or the “Act”) “[b]ecause of

the existing possibility of the occurrence of emergencies and disasters of

unprecedented size and destructiveness resulting from … natural or manmade

causes …” La. R.S. 29:722(A). The LHSEADA created and designated the Governor’s

Office of Homeland Security and Emergency Preparedness (“GOHSEP”) as the

primary agency charged with emergency preparedness and further authorized the

creation of local organizations for emergency preparedness within Louisiana’s

political subdivisions. La. R.S. 29:722(A)(1). The Act governs the state’s response to

these emergencies and authorizes and provides for cooperation among the state’s

many agencies and political subdivisions in preparing for and responding to

emergencies and natural disasters. La. R.S. 29:722(A)(7). Important here, the Act

also houses an immunity provision which reads as follows:

Neither the state nor any political subdivision4 thereof, nor other state

agencies, nor, except in case of willful misconduct, the employees or

representatives of any of them engaged in any homeland security and

emergency preparedness and recovery activities, while complying with

or attempting to comply with this Chapter or any rule or regulation

promulgated pursuant to the provisions of this Chapter shall be liable

for the death of or any injury to persons or damage to property as a result

of such activity.

La. R.S. 29:735(A)(1) (the “Immunity Provision”). The Act defines Emergency

Preparedness as “the mitigation of, preparation for, response to, and the recovery

from emergencies or disasters.” La. R.S. 29:723(6). The Act further defines a

“Disaster” to specifically include hurricanes. La. R.S. 29:723(4).

Claims of immunity under La. R.S. 29:735 are treated as an affirmative

defense under Louisiana law. Banks v. Par. of Jefferson, 08-27 (La. App. 5 Cir.

6/19/08), 990 So. 2d 26, 30, writ denied, 2008-1625 (La. 10/24/08), 992 So. 2d 1043,

(citing Rogers v. State ex rel. Dept. of Public Safety & Corrections, 2007-1060 (La. App.

3 Cir. 1/30/08), 974 So.2d 919, writ denied 08-504 (La. 4/25/08), 978 So. 2d 37). As

such, despite Plaintiffs’ burden at trial to prove Defendants’ liability for the claims

alleged, Defendants bear the burden of proving the applicability of the Immunity

Provision to the Plaintiffs’ claims. Monteville v. Terrebonne Parish Consolidated

Gov’t, 567 So. 2d 1097, 1106 (La. 1990); Abadie v. Markey, 97-684 (La. App. 5 Cir.

4 “[A] political subdivision of a state is a subdivision thereof to which has been delegated

certain functions of local government.” Commander v. Bd. Of Comm’rs of Buras Levee Dist.,

11 So. 2d 605, 607 (La. 1941). Political subdivisions include both parishes and municipalities.

3/11/98), 710 So. 2d 327, 332. As a general rule of construction, immunity statutes

are strictly construed against the claiming party. Monteville, 567 So. 2d at 1101.

In their Motions, Defendants assert that there is no genuine dispute of

material fact that Worrell and the City of Wilson qualify for immunity from the claims

alleged under the Act’s Immunity Provision. In this regard, they assert that Worrell

and the City of Wilson, in providing services to assist Terrebonne Parish in restoring

power to its citizens, were acting as “representatives” of Terrebonne Parish while

engaged in “emergency preparedness measures” – which specifically encompass

hurricane relief and recovery efforts. They also argue that the only exception to this

immunity, willful misconduct, is not pleaded by Plaintiffs.

Conversely, Plaintiffs assert that immunity does not apply to the Defendants

because Worrell and the City of Wilson were not agents or representatives of

Terrebonne Parish or Louisiana, and at the time of the accident, Worrell was not

engaged in emergency preparedness activities. In support of their first argument,

Plaintiffs point to payroll records which indicate Worrell was a payroll employee of

the City of Wilson at the time of the accident. Secondly, Plaintiffs argue that

Defendants contractually defined the relationship between the parties in the Mutual

Aid Agreement and Addendum, which allegedly characterized the Municipality,

when performing services under the Agreement, as an “independent contractor” and

the Municipality’s personnel as “employees of the Municipality.”5 Because of the

5 The cited provision of the Mutual Aid Agreement states,

Personnel furnished by the Municipality pursuant to this Agreement shall be

conclusively deemed, for all purposes, to remain officials and employees of the

Agreement, Plaintiffs assert that the City of Wilson and Worrell cannot be

characterized as agents or representatives of Louisiana or Terrebonne Parish.

Further, Plaintiffs cite a decision from another district in which that court – in

deciding whether to apply the Immunity Provision – looked to whether a state agency

exercised a direct relationship with the “representative,” whether the agency

provided assignments, and whether the agency maintained operational control. See

Banks v. City of New Orleans, 628 F. Supp. 2d 686, 691 (E.D. La. 2009) (finding

genuine issues of material fact existed as to whether the United States Army Corps

of Engineers was acting as a contractor or a representative of the City of New Orleans

when it demolished a homeowner’s home in the aftermath of Hurricane Katrina).

Seeking to expand upon the rationale used in Banks, Plaintiffs assert that the

operational control factors in that case are analogous to Louisiana’s “borrowed

Municipality and while providing aid hereunder and while traveling to and

from a Beneficiary to provide aid hereunder, such personnel shall retain all

rights, privileges, immunities, and benefits, including without limitation,

coverage under the North Carolina Workmen’s Compensation Act, as they

enjoyed while performing their normal duties for the Municipality.

[Doc. 46-6, p. 94].

The pertinent language of the Mutual Aid Agreement Addendum is as follows:

The Municipality is performing services under this Agreement as an

independent contractor and shall act as such at all times during the term of

this agreement. The Municipality and the Beneficiaries shall not act, or be

deemed to act, as agents or partners of the other, or be acting in any joint

venture under this Agreement. Nothing in this paragraph 14 shall be

construed to require the Municipality to obtain or maintain a contractor’s

license.

[Doc. 49-6, p. 99].

servant” analysis.6 Plaintiffs maintain that because the City of Wilson retained

operational control of Worrell under each factor of the borrowed servant analysis,

Worrell was not a representative of Terrebonne Parish under the LHSEADA

Immunity Provision. Alternatively, they argue that, as in Banks, there is at least a

genuine dispute of material fact as to whether Defendants were acting as

representatives of the Parish.7

Lastly, Plaintiffs argue that the Immunity Provision should not apply because

no Louisiana case discusses emergency immunity as applicable to the private sector,

to an independent contractor, or to an employee of an independent contractor working

at the behest of the state. As an issue of first impression, Plaintiffs urge that genuine

6 The borrowed servant doctrine is the functional rule that places the risk of a worker's

injury on his actual rather than his nominal employer. It permits the injured worker to

recover from the company that was actually directing his work. Baker v. Raymond Int’l, 656

F.2d 173, 178 (5th Cir. 1981) (citing Spinks v. Chevron Oil Co., 507 F.2d 216, 224-26 (5th Cir.

1975)). A court analyzes the following factors in determining whether an employee is a

borrowed servant: (1) who has the right of control over the employee beyond the mere

suggestion of details or cooperation; (2) who selected the employee; (3) who paid the

employee’s wages; (4) who had the right to fire the employee; (5) who furnished the tools and

the place to perform the work; (6) was the new employment over a considerable length of

time; (7) whose work was being done at the time of the accident; (8) was there an agreement

between the borrowing and lending employers; (9) did the employee acquiesce in the new

work situation; and (10) did the original employer terminate his relationship with or

relinquish his control over the employee. Bourque v. Tony Chachere's Creole Foods of

Opelousas, Inc., 2020-371 (La. App. 3 Cir. 10/28/20), 305 So. 3d 949, 952–53, writ denied,

2020-01372 (La. 1/26/21), 309 So. 3d 347 (citing Green v. Popeye's Inc., 619 So. 2d 69 (La. App.

3 Cir.1993)).

7 The Blanchard Plaintiffs also cite to this borrowed servant analysis, albeit for

different reasons. They claim that because Defendants made an argument contrary to the

express terms of the Mutual Aid Agreement and Addendum in characterizing Worrell as an

employee of Terrebonne Parish, perhaps Defendants meant to assert that Worrell was an

employee under the “borrowed servant” analysis. After analyzing each factor, they claim that

no factor of the analysis is met, and thus, Worrell was not even a borrowed employee of

Terrebonne Parish.

disputes of material fact exist as to whether Defendants Worrell and the City of

Wilson were acting as representatives of the State of Louisiana or one of its political

subdivisions under the Act.

Next, Plaintiffs argue that Worrell was not specifically engaged in power

restoration at the time of the accident. Plaintiffs contend that when the City of

Wilson’s crew ended its workday, the crew’s engagement in any type of emergency

service ended as well. Thus, according to Plaintiffs, Worrell was on “personal time”

when he was driving back to his lodging in Lafayette after a full day of restoration

work in Houma.

Although the application of this Immunity Provision is broadly recognized in

Louisiana jurisprudence, Plaintiffs are correct that this case presents issues of first

impression. Because no Louisiana Supreme Court decision has decided a directly

analogous case, this Court must proffer an Erie guess as to how the Louisiana

Supreme Court would rule. SMI Owen Steel Co., Inc. v. Marsh USA, Inc., 520 F.3d

432, 436 (5th Cir. 2008). In doing so, the Court's “task is to attempt to predict state

law, not to create or modify it.” Id. at 442 (quoting Herrmann Holdings, Ltd. v. Lucent

Techs., Inc., 302 F.3d 552, 558 (5th Cir. 2002)). Courts may look to and draw from

the decisions of intermediate appellate state courts for guidance. Howe ex rel. Howe

v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000). Importantly, when making

an Erie guess regarding Louisiana law, federal courts must abide by Louisiana’s

civilian tradition. In this fashion, federal courts must first examine the primary

sources of law: the constitution, codes, and statutes; jurisprudence serves only as a

secondary source. In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.

2007).

Under La. R.S. 29:735(A)(1), any individual who is: (1) a representative of a

political subdivision of the State of Louisiana, (2) engaged in emergency preparedness

activities, and (3) is acting in compliance with the LHSEADA is covered by the

Immunity Provision. Cwik v. Murray, No. CV 22-2844, 2023 WL 4156817 at *3 (E.D.

La. June 23, 2023); Lumpkin v. Lanfair, No. CIV.A. 09-6248, 2010 WL 3825427 at *3

(E.D. La. Sept. 23, 2010). As for the first prong and as applicable to this case, the

statute only requires that an individual be a “representative” of the state or a political

subdivision.8 However, the Act does not define this term nor does the term’s usage

in other provisions of Louisiana law provide much assistance to the Court.9

The question before this Court is one of statutory interpretation, which is a

question of law. Carollo v. Dep't of Transportation & Dev., 2021-01670 (La. 9/1/22),

346 So. 3d 751, 759 (citing Red Stick Studio Development, L.L.C. v. State ex rel Dept.

8 In two cases, federal courts have imputed the term “agent” into the Act in place of

“representative.” See Martin v. United States, No. CV 07-663-FJP-CN, 2008 WL 11417740

(M.D. La. Sept. 24, 2008). See also Lemoine v. United States, No. CIV.A. 07-8478, 2009 WL

2496561 (E.D. La. Aug. 13, 2009). Other Courts have retained the term “representative” as

provided in the text of the Act. See Lumpkin v. Lanfair, No. CIV.A. 09-6248, 2010 WL

3825427 (E.D. La. Sept. 23, 2010); see also Cwik v. Murray, No. CV 22-2844, 2023 WL

4156817 (E.D. La. June 23, 2023). Here, the Court will only endeavor to determine whether

the City of Wilson and Worrell were acting as “representatives” of Terrebonne Parish at the

time of the accident.

9 See e.g., LA. CIV. CODE art. 2985 et seq. (pertaining to the authority to represent

another person in legal relations), LA. CODE CIV. PROC. art. 5251 (defining succession

representative and legal representative), LA. CODE EVID. art. 510(A)(7) (defining

representative of a health care provider), LA. CODE EVID. art. 506 (defining representative of

a client and representative of a lawyer), LA. CIV. CODE art. 881 (explaining representation in

the successions context), LA. CODE CIV. PROC. art. 612 (defining representation for the

purpose of class and derivative actions), La. R.S. 51:441 (defining a sales representative).

of Economic Development, 10-0193, p. 9 (La. 1/19/11), 56 So. 3d 181, 187). In

Louisiana, “the rules of statutory construction are designed to ascertain and enforce

the intent of the legislature in enacting the statute.” SWAT 24 Shreveport Bossier,

Inc. v. Bond, 2000-1695 (La. 6/29/01), 808 So. 2d 294, 302 (citing Succession of Boyter,

99–0761, p. 9 (La.1/7/00), 756 So. 2d 1122, 1128). Examining the language of the

statute itself serves as the starting point of statutory interpretation. M.J. Farms,

Ltd. V. Exxon Mobil Corp., 07-2371, p. 13 (La. 7/1/08), 998 So. 2d 16, 26-27.

When a law is clear and unambiguous and its application does not lead to

absurd consequences, it shall be applied as written, with no further interpretation

made in search of the legislative intent. La. Civ. Code art. 9; La. R.S. 1:4. However,

when a law is susceptible of different meanings, “it must be interpreted as having the

meaning that best conforms to the purpose of the law.” La. Civ. Code art. 10. The

Civil Code also provides, “The words of the law must be given their generally

prevailing meaning” while “[w]ords of art and technical terms must be given their

technical meaning when the law involves a technical matter.” La. Civ. Code art. 11;

See also La. R.S. 1:3. Further, undefined words in a statute must be given their plain

meaning. See Oubre v. Louisiana Citizens Fair Plan, 79 So. 3d 987, 997 (La. 2011);

See also La. R.S. 1:3 (“Words and phrases … shall be construed according to the

common and approved usage of the language”). In order to garner the plain meaning

and common usage of undefined words in a statute, dictionaries serve as a valuable

resource. Turner v. East Baton Rouge Parish School Board, 17-1769 (La. App. 1 Cir.

6/14/18), 252 So. 3d 990, 994., (citing Gregor v. Argenot Great Cent. Ins. Co., 02-1138

(La. 5/20/03), 851 So. 2d 959, 964). See also Hopkins v. Howard, 05-0732 (La. App. 4

Cir. 4/5/06), 930 So. 2d 999, 1005, writ denied, 06-1047 (La. 6/23/06), 930 So. 2d 984.

Black’s Law Dictionary defines a representative as “someone who stands for

or acts on behalf of another.” Black’s Law Dictionary (11th ed. 2019). Here, the City

of Wilson and Worrell, through the mutual aid agreement with Terrebonne Parish,

acted as force multipliers to Terrebonne Parish’s employees in restoring electrical

power to Louisiana citizens. The work they performed was at the request of

Terrebonne Parish and was functionally the same work then being performed by

Terrebonne Parish employees. Because the City of Wilson and Worrell were

indisputably standing in for Terrebonne Parish employees and acting on behalf of the

parish in its hurricane recovery efforts, they were acting as Terrebonne Parish’s

“representatives” for the limited purpose of its disaster recovery efforts.

Other pertinent provisions of the Act support this interpretation. When

construing the meaning of a term in a statute, courts must look to the context in

which it is used. See La. R.S. 1:3 (“Words and phrases shall be read with their context

…”). Further, when interpreting a statute, the court should give it the meaning the

legislature intended. Arshad v. City of Kenner, 2011-1579 (La. 1/24/12), 95 So. 3d

477, 484, opinion after grant of writ, 2011-1579 (La. 10/12/11), 74 So. 3d 712, and

opinion after grant of writ, 2011-1814 (La. 10/12/11), 74 So. 3d 712 (citing ABL Mgmt.,

Inc. v. Bd. of Sup'rs of S. Univ., 2000-0798 (La. 11/28/00), 773 So. 2d 131, 135). Here,

one of the Act’s primary purposes is to ensure “that all … emergency preparedness

functions of the state be coordinated to the maximum extent possible with the

comparable functions of the federal government, other states, and localities…” La.

R.S. 29:722(B).10 Louisiana courts have also cited, as instructive, a Louisiana

Attorney General Opinion regarding the broad purpose of the Act, which states, “The

immunity provisions contained in R.S. 29:735 are afforded to anyone engaged in any

homeland security and emergency preparedness activity after a public health

emergency is declared, except in the case of willful misconduct.” Op. Atty. Gen., No.

10-0124 (July 23, 2010), 2010 WL 32009552; See also Koonce v. St. Paul Fire and

Marine Ins. Co., 172 So. 3d 1101 (La. App. 3d. Cir. 2015), writ denied 184 So. 3d 36

(La. 2015).

It is undisputed that Worrell was sent to Louisiana at the request of LUS on

behalf of Terrebonne Parish to assist Terrebonne Parish in its Hurricane Ida recovery

efforts during a declared state of emergency.11 As part of his duties, Worrell attended

daily meetings with the Director of the Terrebonne Parish Utilities Department along

with the department’s employees and other crews in order to discuss safety measures

10 Other relevant purposes listed within the LHSEADA include: “to provide a setting

conducive to the rapid and orderly start of restoration and rehabilitation of persons and

property affected by emergencies or disasters,” “to authorize and provide for cooperation in

emergency or disaster … response and recovery,” and “to authorize and provide for

management systems embodied by coordination of activities relating to emergency or disaster

…. response and recovery by agencies and officers of this state, and similar state-local,

interstate, and foreign activities in which the state and its political subdivisions may

participate.” La. R.S. 29:722(6), (7), & (8).

11 See generally Robin v. United States, No. 04-2230, 2006 WL 2038169, *2 (E.D. La. July

17, 2006) (finding defendant was a representative because he was working at the behest of a

state agency and was “acting pursuant to the Governor’s declaration of a state of emergency

pursuant to La. R.S. 29:723.”). See also Lumpkin v. Lanfair, No. CIV.A. 09-6248, 2010 WL

3825427 (E.D. La. Sept. 23, 2010) (finding a Tennessee National Guardsman a representative

of the state because he traveled to Louisiana at the behest of the state and was operating at

a time and under circumstances dictated by the state.)

and log where each crew would be working each day. [Doc. 49-11, p. 8]. During his

deployment to Louisiana, Worrell was performing the same work and for the same

purpose as employees of the Terrebonne Parish Utilities Department – namely, fixing

the electrical infrastructure damaged by the storm. Though Worrell remained on the

City of Wilson’s payroll throughout his time in Louisiana, Terrebonne Parish

reimbursed the City of Wilson for all relevant expenses including labor, equipment,

lodging, meals, and other miscellaneous travel costs. [See Doc. 49-6, pp. 66-69, 101-

102].

Ultimately, the Court finds that the plain meaning of the word

“representative” applies and best conforms with the purpose of the Act. At bottom,

because: (i) Worrell was working in Terrebonne Parish at the request of a political

subdivision of the State of Louisiana, and (ii) performing a governmental function

normally assigned to Terrebonne Parish employees, the Court finds that Worrell and

the City of Wilson fall squarely into the broad class of “representatives” the

legislature intended the LHSEADA Immunity Provision to cover.12 The first element

of the Immunity Provision is therefore satisfied.

12 Plaintiffs’ briefing also raises that the Mutual Aid Agreement and Addendum

explicitly waives any agency relationship between Terrebonne Parish and the City of Wilson

and provides that the Municipality under the Agreement would be working as an

independent contractor. Additionally, they point to another provision which provides that

personnel of the City of Wilson would be considered employees of the City of Wilson

throughout their work in accordance with the Mutual Aid Agreement. Because of this,

Plaintiffs assert that Worrell and the City of Wilson cannot be considered representatives of

Terrebonne Parish. However, regardless of whether the City of Wilson was an independent

contractor and Worrell its employee, the plain meaning of the term “representative,” coupled

with the clear purpose and legislative intent of the Act, demonstrates that Worrell and

Wilson were acting as representatives of Terrebonne Parish when the subject accident

occurred.

The second element of the Immunity Provision requires that the covered

person or entity be engaged in emergency preparedness activities. The LHSEADA’s

definition of emergency preparedness includes the “response to, and the recovery

from emergencies or disasters.” La. R.S. 29:723(6). Applicable here, Louisiana courts

have consistently held that an individual can be engaged in emergency preparedness

activity when traveling to an emergency preparedness destination. In Rabee v.

Louisiana Dep't of Pub. Safety & Corr., 23-384 (La. App. 5 Cir. 11/2/23), reh'g denied

(Nov. 17, 2023), the Louisiana Fifth Circuit Court of Appeal found that the act of a

Department of Public Safety and Corrections (“DPSC”) employee driving a DPSC

vehicle to a hotel in order to assist with and provide security for hurricane evacuees

during a state of emergency constituted an emergency preparedness activity.13

Likewise, in Benton v. State through Dep't of Child. & Fam. Servs., 2020-1214

(La. App. 1 Cir. 8/13/21), writ denied sub nom. Benton v. State, 2021-01815 (La.

1/26/22), 332 So. 3d 82, the Louisiana First Circuit Court of Appeal found that a

Department of Child and Family Services (“DCFS”) employee driving outside of

normal work hours to an alternate work location to distribute Disaster Supplemental

13 In Rabee, the Department of Public Safety and Corrections employee was driving to

the Hilton Riverside Hotel in New Orleans to assist with securing Hurricane Laura evacuees

from Lake Charles. Rabee v. Louisiana Dep't of Pub. Safety & Corr., 23-384 (La. App. 5 Cir.

11/2/23) at *1, reh'g denied (Nov. 17, 2023). The affidavit introduced indicated the employee

was compensated for his time traveling to and from the Hilton Riverside hotel in the DPSC

vehicle during the assignment and that his use of the vehicle was related to the performance

of his duties as a DPSC employee. Id.

Nutritional Assistance Program (“DSNAP”) cards to flood victims during a declared

state of emergency was engaged in an emergency preparedness activity.14

Here, the mission given to the City of Wilson and its employees by Terrebonne

Parish required that the crew travel between Houma, where the crew aided with

power restoration, and Lafayette, where lodging was provided. Thus, for crew

members such as Worrell, his return to Lafayette each day after work was a necessary

part of the “emergency preparedness activities” and therefore covered by the

Immunity Provision. Thus, there is no genuine dispute of material fact as to the

second prong of the Immunity Provision.

The third requirement of the Immunity Provision requires that an individual

act in compliance with the LHSEADA. Here, this third element is not in dispute.

The LHSEADA provides immunity for representatives of the state who are “engaged

in any emergency preparedness activities, except in the case of willful misconduct.”

La. R.S. 29:735. As to this last prong, Plaintiffs did not allege willful misconduct;

rather Plaintiffs brought only negligence actions against Defendants. See Cwik v.

Murray, No. CV 22-2844, 2023 WL 4156817, at *3 (E.D. La. June 23, 2023).

Given the facts and circumstances of this case, the Court must conclude that

Worrell was acting within the purview of the LHSEADA’s Immunity Provision at the

time of the subject automobile accident. Because all elements of the Immunity

14 Notably, the accident occurred more than forty miles away from the disaster relief

site, and the defendant employee was driving her boyfriend’s vehicle at the time of the

accident. Benton v. State through Dep't of Child. & Fam. Servs., 2020-1214 at *2 (La. App. 1

Cir. 8/13/21), writ denied sub nom. Benton v. State, 2021-01815 (La. 1/26/22), 332 So. 3d 82.

Provision are met, both Worrell and the City of Wilson have statutory immunity

under La. R.S. 29:735(A)(1).

CONCLUSION

For the reasons stated herein, this Court concludes that there is no genuine

dispute of material fact and Defendants are entitled to judgment as a matter of law.

Fed. R. Civ. P. 56.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ MOTIONS FOR SUMMARY

JUDGMENT [Docs. 49, 51] are GRANTED and all Plaintiffs’ claims are DISMISSED

WITH PREJUDICE.

THUS, DONE AND SIGNED in Chambers on this 24“ day of January 2024.

Choral C foo

DAVID C. JOSEPH

UNITED STATES DISTRICT JUDGE

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