The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CW 04-1564
DIANNE BATES
VERSUS
ROBERT C. KING, ET AL.
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SUPERVISORY WRITS FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 214,433,
HONORABLE B. C. BENNETT, DISTRICT JUDGE
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MICHAEL G. SULLIVAN
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Michael G. Sullivan, and
Elizabeth A. Pickett, Judges.
WRIT GRANTED AND MADE PEREMPTORY;
REMANDED WITH INSTRUCTIONS.
Daniel E. Broussard, Jr.
Broussard, Bolton, Halcomb & Vizzier
Post Office Box 1311
Alexandria, Louisiana 71309-1311
(318) 487-4589
Counsel for Plaintiff/Respondent:
Dianne Bates
Mary M. Hamilton
Voorhies & Labbé
Post Office Box 3527
Lafayette, Louisiana 70502
(337) 232-9700
Counsel for Defendant/Applicant:
Robert C. King
Jana Cole King
Anna Maria Sparke Keele
Attorney at Law
333 Texas Street, Suite 2121
Shreveport, Louisiana 71101
(318) 629-2900
Counsel for Intervenor:
Louisiana Restaurant Association
SULLIVAN, Judge.
Robert C. King and Jana Cole King (the Kings), who are officers, shareholders,
and employees of Pitt Grill, Inc. (Pitt Grill), seek supervisory writs from the trial
court’s denial of their motion for summary judgment in which they asserted the
immunity of La.R.S. 23:1032 to the tort claims of Dianne Bates, a Pitt Grill employee
who was injured in the course and scope of her employment. In an unpublished
ruling, this court ordered the matter set for briefing, argument, and opinion. Bates v.
King, CW-04-1564 (La.App. 3 Cir. 3/1/05). For the following reasons, we grant the
writ and remand the case to the trial court for entry of judgment consistent with this
opinion.
Facts and Procedural History
On September 10, 2002, Ms. Bates slipped and fell while working as a waitress
at a Pitt Grill restaurant in Alexandria, Louisiana. She sued the Kings, as owners of
the building, and Pitt Grill, as their lessee, alleging that a defect in the roof allowed
water to accumulate in the kitchen area where the accident occurred. This court
affirmed the dismissal of Pitt Grill on an exception of no cause of action in Bates v.
King, 04-1591 (La.App. 3 Cir. 4/6/05), 899 So.2d 202.
The Kings then filed this motion for summary judgment, arguing that, as
officers of Pitt Grill, they are immune from tort liability under La.R.S. 23:1032. In
support of their motion, they attached their individual affidavits, in which they state
that their primary occupation is serving as officers of Pitt Grill. In opposition,
Ms. Bates introduced depositions and tax records showing that the Kings have other
business interests.
At the hearing on the motion for summary judgment, the trial court stated that
“I have no doubt that . . . as employees of Pitt Grill, that they have an immunity. As
lessors of the building, I have a different opinion.” The trial court then denied the
motion, stating in part:
This has nothing to do with employment. This has to do with two people
. . . who leased the building to a corporation, a separate entity. The fact
that they’re . . . shareholders of the corporation is just incidental. . . .
[T]he essential point in this case, is the capacity in which the defendants
are being sued and that is, in their capacity as lessor and owner of the
building.
(Emphasis added.)
In their writ application, the Kings argue one assignment of error: “Whether
Louisiana law allows an employee to maintain a suit in tort against shareholders,
officers or employees of her employer who are in the normal course of their
employment at the time of the accident under the dual capacity doctrine.”
Opinion
Summary Judgment
Appellate courts review summary judgments de novo under the same criteria
that govern the trial court’s consideration of whether a summary judgment is
appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342
(La.1991). A motion for summary judgment will be granted if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that the
mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).
Summary judgment procedure is favored and shall be construed “to secure the just,
speedy, and inexpensive determination of every action.” La.Code Civ.P. art.
966(A)(2).
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Dual Capacity Doctrine
The trial court’s comments regarding the Kings being sued “in their capacity
as lessor and owner of the building” indicate that its ruling was based upon the “dual
capacity doctrine.” BLACK’S LAW DICTIONARY 514 (7th ed. 1999) defines that
doctrine as “[t]he principle that makes an employer—who is normally shielded from
tort liability by workers’-compensation laws—liable in tort to an employee if the
employer and employee stand in a secondary relationship that confers independent
obligations on the employer.” Application of the “dual capacity doctrine” is clearly
prohibited by La.R.S. 23:1032(A)(1)(b) (emphasis added), which provides: “This
exclusive remedy is exclusive of all claims, including any claims that might arise
against his employer, or any principal or any officer, director, stockholder, partner,
or employee of such employer or principal under any dual capacity theory or
doctrine.” In Jewell v. Haire, 03-1825, p. 5 (La.App. 1 Cir. 9/17/04), 887 So.2d 490,
492-93 (emphasis added), the court explained how Louisiana repudiated the “dual
capacity doctrine” as follows:
Earlier, in connection with its review of a medical malpractice
action, the Louisiana Supreme Court adopted the “dual capacity
doctrine.” In Ducote v. Albert, 521 So.2d 399 (La.1988), the court held
that under the circumstances set forth in that case, the workers’
compensation statute did not insulate a company doctor from liability
based in tort because the doctor functioned simultaneously in two roles,
each carrying a different set of legal obligations. While noting that the
company doctor exhibited characteristics common to both a fellow
employee and a medical professional, the supreme court ruled that the
doctor was amenable to suit in tort based upon his “dual capacity” as an
independent contractor. Ducote, 521 So.2d at 400.
In response to the Ducote decision, the legislature amended
La.R.S. 23:1032 [adding paragraph (A)(1)(b) quoted above] pursuant to
Acts 1989, No. 454, § 2, effective January 1, 1990, to provide that the
workers’ compensation remedy is exclusive of all claims that might arise
against the employer or any employee of such employer under any dual
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capacity theory or doctrine, effectively overruling the supreme court’s
decision in Ducote.
Hence, by focusing on the Kings’ capacity as owners and lessors of the
building as opposed to their employment with Pitt Grill, the trial court applied an
incorrect analysis. The trial court should have considered whether the Kings, as
officers and employees of Pitt Grill, met the requirements of the immunity provided
in La.R.S. 23:1032(A)(1)(a), subject to its limitations in La.R.S. 23:1032(C)(1)
and (2).
Tort Immunity
Louisiana Revised Statutes 23:1032(A)(1)(a) (emphasis added) provides:
Except for intentional acts provided for in Subsection B, the rights
and remedies herein granted to an employee or his dependent on account
of an injury, or compensable sickness or disease for which he is entitled
to compensation under this Chapter, shall be exclusive of all other
rights, remedies, and claims for damages, including but not limited to
punitive or exemplary damages, unless such rights, remedies, and
damages are created by a statute, whether now existing or created in the
future, expressly establishing same as available to such employee, his
personal representatives, dependents, or relations, as against his
employer, or any principal or any officer, director, stockholder, partner,
or employee of such employer or principal, for said injury, or
compensable sickness or disease.
This grant of immunity is subject to two exceptions found in La.R.S.
23:1032(C). Only the first of those exceptions, at La.R.S. 23:1032(C)(1) (emphasis
added), is pertinent here:
C. The immunity from civil liability provided by this Section
shall not extend to:
(1) Any officer, director, stockholder, partner, or employee of
such employer or principal who is not engaged at the time of the injury
in the normal course and scope of his employment; . . . .
In Scott v. Pontchartrain Materials Corp., 98-1611, p. 5 (La.App. 4 Cir.
8/12/98), 717 So.2d 682, 685, writ denied, 98-2398 (La. 11/20/98), 729 So.2d 555
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(emphasis added), the court explained that “for the immunity to apply to the
officer/stockholder, he must have been engaged at the time of the injury in the normal
course and scope of the employer’s business.” The court further explained that the
question posed is “whether or not the officer or stockholder is regularly engaged in
such employment.” Id. at 686 (emphasis added).
The plaintiff in the present case, Ms. Bates, is employed by Pitt Grill, Inc., a
corporation that operates five restaurants and has approximately 200 employees. The
Kings are both officers and employees of the corporation. In his deposition, Mr. King
testified that his occupation and the primary source of his income is serving as
president of Pitt Grill, a position that he has held for thirty-five to forty years. He
described his duties as supervising his managers as to the cleanliness, menus, and
preparation in each restaurant. According to Mr. King, he visits the Alexandria
location, where this accident occurred, approximately once a week, while he goes to
the restaurants in Lake Charles “much more frequent[ly].” Ernest Means, the
manager of the Alexandria restaurant, testified that he considers Mr. King to be his
boss. Mrs. King, who is secretary/treasurer and vice-president of Pitt Grill, testified
that, although she does not personally go to the Alexandria restaurant, she signs
checks, plans menus and recipes, redecorates the restaurants, and checks on the
consistency of food preparation. At the hearing on the motion for summary judgment,
the trial court agreed with defense counsel’s statement that the Kings “are both
actively engaged in the business of Pitt Grill,” but denied the motion on other
grounds, as discussed above.
Ms. Bates argues that genuine issues of material fact exist as to whether the
Kings were engaged in the normal course and scope of their employment with Pitt
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Grill at the time of the injury because the Kings are not involved in the daily affairs
of the restaurants and because they admittedly have other business interests.
Mr. King testified that he operates a truck stop through another corporation, P. G.’s
Diner, Inc.; that he is the president of Spring Mountain Water, Inc., a bottled water
company; and that he owns Alpha Phones, a pay telephone company. Mrs. King
testified that she is also an officer in these corporations. In support of this argument,
Ms. Bates cites two cases in which the owners of buildings operated as restaurants
were denied the immunity of La.R.S. 23:1032.
In Cormier v. Guilbeaux, 547 So.2d 17 (La.App. 3 Cir), writ denied, 551 So.2d
633 (La.1989), the defendant personally owned the building in which a restaurant
employee was injured and he was a major stockholder of the employer-corporation
that operated the restaurant; however, he was not an employee of the corporation and
there was no evidence that he “performed any duties or employment with respect to
the operation of the restaurant.” Id. at 19. His claim of immunity under La.R.S.
23:1032 was denied because the evidence on summary judgment showed that he “was
merely a shareholder with no employment duties or responsibilities.” Cormier, 547
So.2d at 19.1
In Burton v. Berthelot, 567 So.2d 649 (La.App. 4 Cir.), writ denied, 569 So.2d
989 (La.1990), the defendant, a general contractor, constructed the building at issue
then leased it as a restaurant to his solely-owned corporation, which hired the plaintiff
to manage the business. The court identified the “narrow issue” in the case as
1
The defendant in Cormier, 547 So.2d 17, provided administrative services to the restaurant
and to his many other businesses through yet another corporation. In his affidavit, he stated that his
livelihood was derived from “numerous business ventures, including investments in real estate,
ownership and operation of a number lounges and restaurants, and ownership and operation of an
Arabian horse ranch.” Id. at 17. This prompted the court to conclude: “Guilbeaux was not in the
restaurant business. He was in the investment business. His corporations were in the restaurant
business.” Id. at 19.
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“whether [the defendant] was in the restaurant business at the time of plaintiff’s
injury.” Id. at 655 (emphasis added). In determining that the defendant was not, the
court stated:
[The defendant] was a contractor who borrowed money to invest in a
restaurant. His interest in the restaurant was purely as an investor, not
a restauranteur. He did not participate in the day-to-day management
and operation of the restaurant. He was not engaged in the normal
course and scope of the restaurant business at the time of plaintiff’s
injury and thus, is not entitled to the immunity provided by La.R.S.
23:1032 for stockholders, officers and directors of a corporate employer.
Id.
Unlike the defendants in Cormier and Burton, the Kings have established
themselves as restauranteurs. The record demonstrates that they actively participate
in Pitt Grill’s business, which is the operation of five restaurants, not only the one
restaurant in which Ms. Bates was injured. Although the Kings have delegated the
day-to-day affairs of each restaurant to managers, Mr. King supervises those
managers and Mrs. King plans the menus and recipes, signs checks, and redecorates
the restaurants. Their tax return for 2002, which includes W-2s issued to both of
them from Pitt Grill, substantiates their claim that their employment with Pitt Grill
was their primary occupation at the time of Ms. Bates’ injury. Under these
circumstances, we do not find that the Kings’ participation in other businesses
automatically precludes the immunity in La.R.S. 23:1032. Furthermore, we find that
the facts on summary judgment are not in dispute; the parties have simply offered
differing interpretations of the statutes and jurisprudence. On the record before us,
we find that the Kings have clearly demonstrated that they were engaged in the
normal course and scope of their employment with Pitt Grill at the time of Ms. Bates’
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injury. Accordingly, summary judgment should have been granted recognizing their
entitlement to the immunity of La.R.S. 23:1032.
Decree
For the above reasons, the trial court’s denial of summary judgment is reversed,
and the matter is remanded for entry of judgment consistent with this opinion.
WRIT GRANTED AND MADE PEREMPTORY; REMANDED WITH
INSTRUCTIONS.
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