observing that “[w]itnesses are weighed and not counted” and that the “fundamental function of the trier of fact, be it judge or jury, is to determine the facts and this is not done by counting noses”
How later courts described this case
- observing that “[w]itnesses are weighed and not counted” and that the “fundamental function of the trier of fact, be it judge or jury, is to determine the facts and this is not done by counting noses”
Written by the judges who cited it.
The opinion
KHIRY COSEY ON BEHALF * NO. 2022-CA-0503
OF HER MINOR CHILDREN,
CORBIN HILLIARD AND *
ALYSSA HILLIARD COURT OF APPEAL
INDIVIDUALLY AND ON *
BEHALF OF THE ESTATE OF FOURTH CIRCUIT
REGINALD HILLIARD, JR., *
ET AL. STATE OF LOUISIANA
*******
VERSUS
FLIGHT ACADEMY OF NEW
ORLEANS, LLC; JAZZ
AVIATION, LLC; QBE
INSURANCE CORPORATION;
CHRISTIANSEN AVIATION,
INC.; ABC INSURANCE
COMPANY; SIGNATURE
FLIGHT SUPPORT
CORPORATION; ALLIANZ
GLOBAL CORPORATE &
SPECIALTY SE; THE ESTATE
OF JAMES BIONDO; AND DEF
INSURANCE COMPANY
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-09317 C\W 2016-11198, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, and
Judge Nakisha Ervin-Knott)
Roderick "Rico" Alvendia
Jeanne K. Demarest
Kurt A. Offner
ALVENDIA, KELLY & DEMAREST, L.L.C.
909 Poydras Street, Suite 1625
New Orleans, LA 70112
Cleo Fields
THE FIELDS LAW FIRM, LLC
2147 Government St.
Baton Rouge, LA 70806
Ike Spears
SPEARS & SPEARS
909 Poydras Street, Suite 1825
New Orleans, LA 70112
COUNSEL FOR PLAINTIFFS/APPELLANTS
Darrell K. Cherry
DEUTSCH KERRIGAN, LLP
755 Magazine Street
New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED
January 18, 2023
RML This is a multi-party, personal injury suit arising out of a tragic, small-
TGC aircraft accident.1 Appellants are the heirs of Reginald Hilliard, Jr., the passenger
NEK
who perished in the accident (“Hilliard Plaintiffs”);2 Appellees are the heirs of
James Biondo, the pilot who perished in the accident (“Biondo’s Estate”). In this
appeal, Hilliard Plaintiffs seek review of the trial court’s February 25, 2022
judgment, granting Biondo’s Estate’s summary judgment motion and dismissing
Hilliard Plaintiffs’ claims against Biondo’s Estate.3 For the reasons that follow, we
reverse and remand.
1 The parties in this case have filed three previous appeals in this Court. See Cosey on Behalf of
Hilliard v. Flight Acad. of New Orleans, LLC, 19-0785 (La. App. 4 Cir. 11/12/20), ___ So.3d
____, 2020 WL 6687515, writ denied, 21-00083 (La. 3/23/21), 312 So.3d 1097; Cosey on Behalf
of Hilliard v. Flight Acad. of New Orleans, LLC, 19-0757, 19-0786, 19-0878 (La. App. 4 Cir.
5/13/20), ___ So.3d ____, 2020 WL 2478462, writs denied, 20-00746 (La. 10/6/20), 302 So.3d
536; 20-01024 (La. 11/4/20), 303 So.3d 651; Cosey on behalf of Hilliard v. Flight Acad. of New
Orleans, LLC, 17-0364 (La. App. 4 Cir. 10/25/17), 316 So.3d 1173.
2 Hilliard Plaintiffs include two groups of family members. The first group is Mr. Hilliard's
minor children—his La. C.C. Art. 2315.2 wrongful death beneficiaries—on whose behalf suit
was filed by their mothers: Corbin Hilliard and Alyssa Hilliard (whose mother is Khiry Cosey),
and Takhiree Hilliard (whose mother is Tiara Liggins). The second group is the “Lejeune
Plaintiffs,” who asserted only LeJeune-bystander claims under La. C.C. art. 2315.6 given they
were excluded from being wrongful death beneficiaries. See Lejeune v. Rayne Branch Hosp., 556
So.2d 559 (La. 1990). The LeJeune Plaintiffs are Mr. Hillard’s mother, Tukeya Jarvis; his
grandmother, Dorothy Jarvis; and his brother, Thomas Hilliard.
3 On February 25, 2022 and March 8, 2022, the trial court rendered two other judgments. Those
other judgments granted the summary judgment motions filed by the defendants, including
1
FACTUAL AND PROCEDURAL BACKGROUND
In August 2016, Briana Davis and her boyfriend, Mr. Hilliard, took the Big
Easy Lights at Night aerial tour of the City of New Orleans (the “Tour”). Flight
Academy of New Orleans, LLC (“FANO”) was the entity that provided the Tour.
FANO’s employee, Mr. Biondo, was the Tour’s pilot. Before taking the Tour, Ms.
Davis signed a passenger contract with FANO.
On the night of the Tour, the small aircraft with three occupants on board—
the pilot, Mr. Biondo; and two passengers, Mr. Hilliard and Ms. Davis—took off
from the New Orleans Lakefront Airport. The Tour, which lasts about forty
minutes, was uneventful; the accident occurred near the completion of the Tour.
When the aircraft was making its return approach to the runway, it disappeared
from the airport’s radar, crashed into Lake Pontchartrain, and sank. Ms. Davis was
the only survivor. This suit followed.4 Among the multiple defendants sued was
Biondo’s Estate.
Following discovery, Biondo’s Estate filed a summary judgment motion.
Biondo’s Estate contended that Mr. Biondo was immune from personal liability
under La. R.S. 12:1320(B),5 based on Mr. Biondo’s status at the time of the
Biondo Estate, and dismissed the LeJeune Plaintiffs from the suit. Those two other judgments are
the subject of a separate appeal, Cosey on Behalf of Hilliard v. Flight Acad. of New Orleans,
LLC, No. 2022-CA-0538. That separate appeal and this appeal were assigned to the same panel,
placed on the same docket, and orally argued together.
4 Ms. Davis also filed a suit for her personal injuries. Her suit was consolidated with the Hilliard
Plaintiffs’ suit. Thereafter, Ms. Davis settled with the defendants and dismissed her suit. Ms.
Davis, thus, is not a party to this appeal.
5 The governing statute, La. R.S. 12:1320, provides:
2
accident as an employee of FANO—a Louisiana limited liability company
(“LLC”)—coupled with the employment-rooted nature of Mr. Biondo’s actions.6
Following a hearing, the trial court granted Biondo Estate’s summary judgment
motion and dismissed Biondo’s Estate as a party to this litigation. This appeal
followed.
DISCUSSION
On appeal, Hilliard Plaintiffs’ sole assignment of error is whether the trial
court erred in granting Biondo’s Estate’s summary judgment motion.
Standard of Review and Governing Legal Principles
An appellate court reviews a trial court’s judgment on a summary judgment
motion de novo. Planchard v. New Hotel Monteleone, LLC, 21-00347, p. 2 (La.
12/10/21), 332 So.3d 623, 625. In so doing, an appellate court applies the same
criteria that govern a trial court’s decision as to whether a summary judgment
A. The liability of members, managers, employees, or agents, as such, of a limited
liability company organized and existing under this Chapter shall at all times be
determined solely and exclusively by the provisions of this Chapter.
B. Except as otherwise specifically set forth in this Chapter, no member, manager,
employee, or agent of a limited liability company is liable in such capacity for a debt,
obligation, or liability of the limited liability company.
C. A member, manager, employee, or agent of a limited liability company is not a proper
party to a proceeding by or against a limited liability company, except when the object is
to enforce such a person's rights against or liability to the limited liability company.
D. Nothing in this Chapter shall be construed as being in derogation of any rights which
any person may by law have against a member, manager, employee, or agent of a limited
liability company because of any fraud practiced upon him, because of any breach of
professional duty or other negligent or wrongful act by such person, or in derogation of
any right which the limited liability company may have against any such person because
of any fraud practiced upon it by him.
6 In the alternative, Biondo’s Estate requested a partial summary judgment adjudging that Mr.
Biondo not to be deprived of the benefit of La. R.S. 12:1320(B)’s protection by La. R.S.
12:1320(D)’s exceptions from immunity.
3
motion should be granted—“whether there is any genuine issue of material fact,
and whether the movant is entitled to judgment as a matter of law.” Planchard, 21-
00347, pp. 2-3, 332 So.3d at 625.
The statutory provision that governs a summary judgment motion states that
such motion “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. C.C.P. art. 966(A)(3). The
burden of proof on a summary judgment motion is governed by La. C.C.P.
art. 966(D)(1), which provides for a shifting burden of proof.
The summary judgment procedure is favored and “designed to secure the
just, speedy, and inexpensive determination of every action.” La. C.C.P.
art. 966(A)(2). The purpose of the procedure is to pierce the pleadings and to
assess the evidence to determine if there are any genuine issues of material fact
requiring a trial. Cutrone v. English Turn Prop. Owners Ass’n, Inc., 19-0896, p. 7
(La. App. 4 Cir. 3/4/20), 293 So.3d 1209, 1214. As this court has observed, “[t]he
determination of whether a fact is material turns on the applicable substantive
law.” Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir. 5/10/17),
219 So.3d 1265, 1270; Citron v. Gentilly Carnival Club, Inc., 14-1096, p. 13 (La.
App. 4 Cir. 4/15/15), 165 So.3d 304, 313.
The applicable substantive law here is the LLC immunity statute, La.
R.S. 12:1320. The Louisiana Supreme Court construed this statute in Ogea v.
Merritt, 13-1085 (La. 12/10/13), 130 So.3d 888, as creating a presumption—
4
general rule—of non-liability. This presumption, the Supreme Court observed, can
be rebutted by establishing one of three statutory exceptions. The trio of exceptions
are for causes of action for (i) fraud; (ii) breach of any professional duty; and
(iii) other negligent or wrongful acts. Ogea, 13-1085, p. 10, 130 So.3d at 897.
As to the exception for negligent or wrongful acts, the Supreme Court
rejected the argument that it was limited to torts. To limit the parameters of the
exception, the Supreme Court fashioned the following four-factor balancing test to
be applied to determine whether it applies:
• whether a member’s conduct could be fairly characterized as a traditionally
recognized tort (“Tort Factor”);
• whether a member’s conduct could be fairly characterized as a crime, for
which a natural person, not a juridical person, could be held culpable
(“Criminal Conduct Factor”) ;
• whether the conduct at issue was required by, or was in furtherance of, a
contract between the claimant and the LLC (“Contract Factor”); and
• whether the conduct at issue was done outside the member’s capacity as a
member (“Acting Outside the LLC Factor”) .
Ogea, 13-1085, p. 16, 130 So.3d at 900-01.
As a court has observed, “[t]he common thread in these factors is that they
each concern the member’s conduct.” Hewitt v. 3G Energy Servs., LLC, CV 18-
955, 2019 WL 2402963, *4 (W.D. La. June 4, 2019) (unpub.). Indeed, this court
recently observed that “the purpose of a statutory provision such as La. R.S.
12:1320(D) is to codify the principle that the members of a limited liability
company are not shielded from personal liability from their own personal
conduct.” Mathes Brierre Architects v. Karlton/ISG Enterprises, LLC, 19-0357,
p. 12, n. 7 (La. App. 4 Cir. 12/3/20), 311 So.3d 532, 541, writ denied, 21-0029 (La.
5
3/16/21), 312 So.3d 1090 (citing Robert B. Thompson, The Limits of Liability in
the New Limited Liability Entities, 32 WAKE FOREST L. REV. 1, 11 (1997)
(observing that “[i]ndividuals who act for the corporations are held personally
liable . . . if their action on behalf of the entity is tortious, criminal, or otherwise
wrongful” and that this form of liability for direct actions is a distinct from the
equitable doctrine of piercing the veil)).
Parties’ Arguments
As noted at the outset, the basis of Biondo’s Estate’s summary judgment
motion is its contention that Mr. Biondo—given his status as an LLC employee
coupled with the employment-rooted nature of his actions—is immune from
personal liability under La. R.S. 12:1320(B) and that none of the exceptions in La.
R.S. 12:1320(D) apply. Hilliard Plaintiffs do not allege fraud; hence, only two of
the exceptions are at issue here—the professional act and the negligent or wrongful
act exceptions.
In support of its motion, Biondo’s Estate enumerated the following
contextual facts that it contended were undisputed:
• FANO, at the time of the accident, was a valid Louisiana LLC, as
established by FANO’s articles of organization;
• FANO’s ongoing business included selling and conducting aerial tours,
which was authorized by a certificate the Federal Aviation Administration
(“FAA”) issued to FANO as the certificated operator;
• Mr. Biondo was FANO’s employee, as established by the employment
contract between Mr. Biondo and FANO dated February 2016; Mr. Biondo’s
job was to participate, as directed by FANO, in the flying of the aerial tours;
• The Tour that ended up crashing in August 2016 was the subject of a
passenger contract between FANO and Ms. Davis; Ms. Davis purchased the
Tour from FANO and paid the fee (which was set by FANO) to FANO
before the Tour;
6
• The Tour itinerary and the manner of conducting the Tour were chosen and
specified by FANO’s managers and set forth in FANO’s procedures and
specifications, which Mr. Biondo was mandated to follow;
• The aircraft FANO provided to Mr. Biondo for conducting the Tour was
leased by FANO; the aircraft was provided to Mr. Biondo only to use for
FANO’s aerial tours; and
• Mr. Biondo was acting, on the date of the accident, to accomplish the
contracted-for the Tour as part of FANO’s regular business and was not
engaged in a personal endeavor.
Opposing the motion, Hilliard Plaintiffs presented no evidence to dispute
Biondo’s Estate’s contextual facts.7 Nonetheless, they argued that Biondo’s Estate
was not entitled to summary judgment for the following three independent reasons:
• The standards for personal and professional liability of commercial aviation
pilots are governed exclusively by the FAA such that La. R.S. 12:1320
should not govern (“Preemption Argument”);
• Assuming La. R.S. 12:1320 governs, Mr. Biondo breached his professional
duty as a professional commercial aviation pilot (“Professional Duty
Argument”); and
• Assuming La. R.S. 12:1320 governs and Mr. Biondo was not a professional,
Mr. Biondo committed various negligent or wrongful acts or both that are
considered to be traditional, recognizable torts (“Negligent Act Argument”).
As noted, the trial court granted Biondo’s Estate’s summary judgment
motion. On appeal, Hilliard Plaintiffs repeat these same three arguments. We
separately address each of these arguments.
7 Instead, Hilliard Plaintiffs attached to their opposition two expert reports addressing the issue
of Mr. Biondo’s negligence in causing the accident. Biondo’s Estate objected to these expert
reports in its reply memorandum filed in the trial court, as well as in its appellee brief filed in this
court, as improper summary judgment evidence. But, at the summary judgment hearing, Hilliard
Plaintiffs’ counsel did not move to introduce the expert reports into evidence; thus, the trial court
did not rule on the objection. For that reason, we find those reports were not made part of the
record and are not properly before us. See Med. Review Panel for Bush, 21-00954, p. 7 (La.
5/13/22), 339 So.3d 1118, 1124) (citing Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La.
5/21/08), 983 So.2d 84, 88, and observing that “evidence not properly offered cannot be
considered even if it were physically placed in the record”); see also Burandt v. Pendleton Mem’l
Methodist Hosp., 2013-0049, p. 2 (La. App. 4 Cir. 8/7/13); 123 So.3d 236, 238 (observing that
“[e]vidence that is not properly and officially offered and introduced cannot be considered on
appeal, even if the evidence is physically placed in the record”). We, thus, pretermit addressing
the objection.
7
Preemption Argument
Hilliard Plaintiffs first contend that the FAA preempts La. R.S. 23:1320.
Simply put, they argue that the FAA exclusively sets the standards for personal and
professional liability of commercial aviation pilots, like Mr. Biondo. Biondo’s
Estate counters that La. R.S. 12:1320 does not set any standard of conduct for
aviation pilots. Indeed, it is not a standard-of-care statute at all; it is a corporate
financial end-responsibility statute. Thus, it cannot conflict with the FAA. We
agree. Hilliard Plaintiffs’ preemption argument is unpersuasive.
Professional Duty Argument
Hilliard Plaintiffs next argue that assuming La. R.S, 12:1320 governs, the
exception for a breach of professional duty, codified in La. R.S. 12:1320(D),
applies. They contend that Mr. Biondo was a professional—a commercial aviation
pilot—and that he breached his professional duty. In support of their
characterization of a commercial aviation pilot as a professional, they cite
jurisprudence holding riverboat and steamboat pilots, albeit for other purposes, are
professionals.8
Biondo’s Estate counters that a commercial aviation pilot is not included in
the list of learned professions for whom professional corporations were created in
Title 12 of the Revised Statutes.9 Biondo’s Estate contends that a commercial
aviation pilot is more akin to a commercial bus or truck driver and is not a
professional as that term is used in the statute. Agreeing with Biondo’s Estate’s
8 See Coleman v. New Orleans & Baton Rouge S.S. Pilots’ Ass’n, 437 F.3d 471 (5th Cir. 2006).
9 See Nunez v. Pinnacle Homes, L.L.C., 15-0087, pp. 9-10 (La. 10/14/15), 180 So.3d 285, 292
(observing that “a ‘profession’ is different from other occupations and trades,” that
“[c]ontracting is not included among the professional corporations listed in Title 12 of the
Revised Statutes,” and that “there is no indication the legislature intended for licensed
contractors to owe a separate, non-contractual duty to their customers as may members of the
enumerated professions”).
8
argument, the trial court judge, at the summary judgment hearing, posed the
question of whether bus drivers and taxicab drivers likewise would be
characterized as professionals under La. R.S. 12:1320(D). Answering that question
in the negative, the trial court judge observed that she was compelled to grant
summary judgment given she did not believe this was the legislature’s intent when
it used the word professional in the statute.10
On appeal, the parties make the same arguments they made before the trial
court on the issue of whether a commercial aviation pilot fits the definition of a
professional under La. R.S. 12:1320(D). While we note the issue, we find it
unnecessary to decide it. Instead, we find there are genuine issues of material facts
regarding the negligent and wrongful act exception, discussed next, that preclude
granting summary judgment in this case.
Negligent Act Argument
Hilliard Plaintiffs’ final argument is, assuming that La. R.S. 12:1320(D)
applies and that a commercial aviation pilot is not a professional under the statute,
Mr. Biondo committed various negligent acts that are considered to be traditionally
recognized torts, satisfying factor 1 of the Ogea multi-factor test (Tort Factor).
They quote the reasoning in Ogea that “if a traditional tort has been committed
against any cognizable victim(s), that situation weighs in favor of the ‘negligent or
wrongful act’ exception and in favor of allowing the victim(s) to recover against
the individual tortfeasor(s).” Ogea, 13-1085, p. 17, 130 So.3d at 901 (citing H.B.
“Buster” Hughes, Inc. v. Bernard, 318 So.2d 9, 12 (La. 1975)).
10 The trial court judge, however, was silent on the issue of the negligent or wrongful act
exception, discussed elsewhere in this opinion.
9
Hillard Plaintiffs also emphasize the language in Ogea that if a defendant’s
actions breach a duty he personally owed to a plaintiff and thereby cause injury,
the defendant is not immune from liability merely because he acted as a member or
manager of an LLC. They contend that such is the case here given the FAA
imposes professional and personal duties on a commercial aviation pilot, such as
Mr. Biondo, to his passengers. They contend that this is true regardless of Mr.
Biondo’s status as an LLC’s employee or of any instructions that the LLC provided
to him. Given the evidence developed to date, Hilliard Plaintiffs contend that they
have put forth a sufficient basis to establish that Mr. Biondo not only owed, but
also breached, his professional and personal duties to the passengers. Finally,
Hilliard Plaintiffs contend that no case stands for the extreme position advocated
by Biondo’s Estate that Mr. Biondo is entitled to personal immunity given the
breach of his professional and personal duties to the passengers.
Biondo’s Estate counters the issue of Mr. Biondo’s fault is not relevant to
this dispute; rather, it contends that this dispute presents purely a legal issue of
whether—applying the Ogea multi-factor analysis to the undisputed contextual
facts—the negligent or wrongful act exception applies here. According to Biondo’s
Estate, the legal issue is weighted in favor of immunity by Ogea factors 3
(Contract Factor) and 4 (Acting Outside the LLC Factor). In support, Biondo’s
Estate cites a trio of cases for the proposition that when, as here, fault is from acts
“in furtherance of the contract,” such fault, as a matter of technical interpretation,
10
does not trigger Ogea factor 1 (Tort Factor); instead, factors 3 (Contract Factor)
and 4 (Acting Outside the LLC Factor) are dominant.11
Biondo’s Estate’s position is consistent with the following hypothetical,
posed by a commentator, regarding the application of the Ogea multi-factor test:
Under certain circumstances, a court may find no personal
liability for a member under Ogea when that member normally would
become liable under traditional legal theories. For example, consider a
situation where a member making a delivery for his LLC strikes a
pedestrian with his automobile. The member owes a personal duty to
the pedestrian not to hit her. If the pedestrian can prove the remaining
elements of a tort, then under traditional limited liability law, the
member will be personally liable to the pedestrian for the damages he
causes in the accident, regardless of his ownership interest. Limited
liability under Revised Statutes section 12:1320(B) is not implicated
because the liability is personal and not a liability of the business.
But, under the Ogea analysis, a court would have to determine
whether an “exception” to limited liability was met. Analyzing the
“negligent or wrongful act” exception, the “tort” factor would be
present. The member, however, did not commit any crime, was acting
in furtherance of the LLC’s contract to deliver the package, and was
acting in his capacity as member and employee of the LLC. Three
factors would weigh against holding the member personally liable,
and one factor would weigh in favor of liability. Because, as the Court
stated, no single factor is automatically dispositive, a court could
easily find no personal liability existed in this situation even though
the member should clearly be personally liable under traditional tort
law.
Thomas Bourgeois, Mirror, Mirror: Amending Louisiana’s LLC Statutes Related
to Personal Liability of Members to Reflect Corporate Counterparts After Ogea v.
Merritt, 76 LA. L. REV. 1339, 1375-76 (2016).
The outcome the commentator poses in the hypothetical is what Biondo’s
Estate suggests is appropriate here. Simply stated, Biondo’s Estate contends that
11 See Nunez, 15-0087, p. 10, 180 So.3d at 293; An Erny Girl, LLC v. BCMO 4, LLC, 18-0360
(La. App. 4 Cir. 9/26/18), 257 So.3d 212; Streiffner v. Deltatech Const’n, LLC, 18-0155 (La.
App. 4th Cir. 10/10/18), 318 So.3d 119.
11
Ogea factors 3 and 4 should outweigh factor 1. An analysis of the entire Ogea
opinion dictates against the outcome Biondo’s Estate seeks.
Nothing in Ogea suggests that the four factors were meant to be counted.
See U. S. Fid. & Guar. Co. v. Fiffie, 211 So.2d 690, 692 (La. App. 4th Cir. 1968)
(observing that “[w]itnesses are weighed and not counted” and that the
“fundamental function of the trier of fact, be it judge or jury, is to determine the
facts and this is not done by counting noses”).12 To the contrary, the Supreme
Court in Ogea instructed courts to consider each of four factors when determining
whether the presumption of limited liability must yield to the exception for
negligent or wrongful acts. 13-1085, p. 24, 130 So.3d at 905.
The Supreme Court in Ogea further instructed courts that a single factor—
especially factor 1, the Tort Factor—can be dispositive. 13-1085, p. 24, 130 So.3d
at 905. (observing that “the tort factor may be dispositive”). Additionally, the
Supreme Court observed that “upon a showing that a member owed a personal
duty in tort to the claimant, the breach of such duty could pave the way to a
member’s personal liability for the tort.” Ogea, 13-1085, p. 24, 130 So.3d at 905.13
Moreover, the Supreme Court instructed courts to evaluate each situation on a
case-by-case basis. Ogea¸13-1085, p. 24, 130 So.3d at 905.
Biondo’s Estate’s attempt to cabin the analysis of the Ogea factors to the
employment-rooted nature of Mr. Biondo’s actions and the connection of his
12 Indeed, Ogea was decided on a full record following a trial on the merits, not on a summary
judgment motion.
13 Ogea factor 4 (Acting Outside the LLC Factor), in this context, could be construed to mean
that an employee is acting outside the LLC when he commits acts of personal negligence. See
W.J. Spano Co., Inc. v. Mitchell, 05-2115, p. 4 (La. App. 1 Cir. 9/15/06), 943 So.2d 1131, 1133
(observing that “‘[o]utside one's capacity as a member’ would, however, refer to other acts of
professional or personal negligence”).
12
actions to the contract between FANO and Ms. Davis is misplaced. This attempt
ignores the presence of Mr. Biondo’s personal duties to the passengers. The
question of whether there is a duty is a legal one; “[s]imply put, the inquiry is
whether the plaintiff has any law—statutory, jurisprudential, or arising from
general principles of fault—to support his claim.’” Ogea, 13-1085, p. 24,130 So.3d
at 905 (quoting Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289,
292 (La. 2/22/93). Here, the source of Mr. Biondo’s personal duties, as Hilliard
Plaintiffs emphasize, is the FAA. See Cosey On Behalf of Hilliard, 19-0785, p. 9,
___ So.3d at ____, 2020 WL 6687515, *5 (observing that FAA regulations
“clearly apply to operators and pilots”).
As the Supreme Court observed in Ogea, “if an officer or agent of a
corporation through his fault injures another to whom he owes a personal duty,
whether or not the act culminating in the injury is committed by or for the
corporation, the officer or agent is liable personally to the injured third person, and
it does not matter that liability might also attach to the corporation.” Ogea, 13-
1085, p. 17, 130 So.3d at 901 (quoting Bernard, 318 So.2d at 12). Continuing, the
Supreme Court in Ogea observed that “‘LLCs are not different from corporations
in any sense that would justify a different approach to such questions of personal
liability.’” 13-1085, p. 17, 130 So.3d at 901 (quoting 8 GLENN G. MORRIS &
WENDELL H. HOLMES, LOUISIANA CIVIL LAW TREATISE: BUSINESS
ORGANIZATIONS, § 44.06 (2013 ed.)). It follows that an employee of an LLC
who injures a third party to whom he owes a personal duty is not shielded from
personal liability by La. R.S. 12:1320.
Based on these principles, we conclude that Mr. Biondo’s status as an LLC
employee does not insulate him from potential personal liability for any breach of
13
the personal duty he owed to the passengers of the aircraft. Although we do not
reach the issue of whether Hilliard Plaintiffs will succeed on the merits of their
negligence claim against Mr. Biondo at trial, we find there are genuine issues of
material fact, which preclude summary judgment, on this issue. See Priority Hosp.
Grp., Inc. v. Manning, 53,564, pp. 10 (La. App. 2 Cir. 9/23/20), 303 So.3d 1106,
1113, writ denied, 20-01238 (La. 1/20/21), 308 So.3d 1160 (observing that
summary judgment could not be granted on whether the fraud exception applied
given that there were “genuine issues of material fact regarding fraud”). We, thus,
find the trial court erred in granting Biondo’s Estate’s summary judgment motion.
DECREE
For the foregoing reasons, the trial court’s judgment is reversed; and this
matter is remanded to the trial court for further proceedings.
REVERSED AND REMANDED
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