The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
19-278
BROCK SIMON
VERSUS
FARM BUREAU INSURANCE CO., ET AL.
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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20170186
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
36 30 2 3 oie 2K 2 2k ok 2k
VAN H. KYZAR
JUDGE
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Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar,
Judges.
REVERSED, RENDERED, AND REMANDED.
Kyle Sherman
Brandt & Sherman, LLP
111 Mercury St.
Lafayette, LA 70503
(337) 237-7171
COUNSEL FOR PLAINTIFF/APPELLANT:
Brock Simon
Keith Saverio Giardina
Ryan T. Morrow
9100 Bluebonnet, Suite 300
Baton Rouge, LA 70809
(225) 293-7272
COUNSEL FOR DEFENDANT/APPELLEE:
Beta Land Services, LLC
Charles J. Duhe, Jr.
Ryan J. Zumo
Taylor, Wellons, Politz & Duhe
8550 United Plaza Blvd, #101
Baton Rouge, LA 70809
(225) 387-9888
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Farm Bureau Casualty Insurance Co.
Jeffery Doughty
KYZAR, Judge.
The current matter arises from an automobile accident between Plaintiff,
Brock Simon, and Jeffrey Doughty, who was doing work for Defendant, Beta Land
Services, Inc. (Beta), on the day of the subject accident. Plaintiff appeals the trial
court’s finding that Mr. Doughty was an independent contractor and its subsequent
granting of a motion for summary judgment in favor of Beta on the issue of
vicarious liability, dismissing Plaintiff's suit as against Beta with prejudice.
Plaintiff also appeals the denial of his cross-motion for partial summary judgment
on the same issue. For the reasons set forth herein, we reverse the ruling of the
trial court granting Beta’s motion for summary judgment. Further, we grant
Plaintiff's motion for summary judgment and remand the matter to the trial court
for further proceedings consistent herewith.
FACTS AND PROCEDURAL HISTORY
On January 28, 2016, Plaintiff, Brock Simon, was involved in a motor
vehicle accident wherein the vehicle he was operating was rear-ended by a vehicle
owned and operated by Jeffery Doughty. At the time of the collision, Doughty
worked as a landman for Beta pursuant to a written contract entitled Independent
Landman Consulting Agreement. It is not disputed that just prior to the accident,
Doughty had gone to a Beta location in Lutcher, Louisiana to clean out an office
that had been previously used by the company. He was bringing the supplies and
fixtures from that office to Beta’s main office location in Lafayette at the time the
collision occurred.
Plaintiff filed suit for damages against Doughty and his insurer, Farm
Bureau Casualty Insurance Co., on January 3, 2017, and thereafter, amended and
supplemented the suit to add Beta as a defendant. In his petition, Plaintiff alleges
that Doughty caused the accident and that at the time thereof, Doughty was an
employee, agent, and/or was on a mission for Beta, rendering Beta vicariously
liable for damages caused by Doughty’s negligence.
Beta filed a motion for summary judgment on the issue of its vicarious
liability, contending that Doughty was an independent contractor at the time of the
subject collision. Plaintiff also filed a motion for partial summary judgment on the
issue of Beta’s vicarious liability, as well as on the issue of fault. Defendants
stipulated to the fault of Doughty in causing the collision but maintained he was
working as an independent contractor. Plaintiff then filed an opposition to Beta’s
summary judgment motion, and both parties filed reply memoranda. The only
evidence submitted by either party in conjunction with their respective summary
judgment motions and oppositions were: (1) Deposition testimony of Doughty; (2)
the “Independent Landman Consulting Agreement” between Beta and Doughty
signed December 13, 2010; and (3) an affidavit regarding work experience signed
by Doughty and dated December 13, 2010, the same day he began contracting with
Beta.
The motions for summary judgment were heard on December 3, 2018,
following which, the trial court ruled in favor of Beta, granting its motion for
summary judgment and dismissing Plaintiff's suit as against it with prejudice. The
trial court signed judgment to this effect on December 20, 2018. No written
reasons for judgment were issued. The judgment was certified as final, and
Plaintiff filed this appeal, asserting three assignments of error:
1. The trial court erred in holding that Jeffery Doughty was an
independent contractor.
2. The trial court erred in failing to hold that, at the time of the
subject collision, Jeffery Doughty was acting as an agent or employee
of Beta Land Services, LLC, and/or was on a mission for Beta,
rendering Beta vicariously liable for his negligent acts.
2
3. The trial court erred in failing to hold that there was a
genuine issue of material fact regarding whether Mr. Doughty was an
independent contractor.
DISCUSSION
A motion for summary judgment is a procedural device used when there is
no genuine issue of material fact for all or part of the relief prayed for by a litigant.
Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. Summary judgment is
appropriate if pleadings, depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no genuine issue of material
fact and that the mover is entitled to judgment as matter of law. La.Code Civ.P. art.
966; Butterfield v. C&M Construction Co., 96-225 (La.App. 3 Cir. 6/5/96), 676
So.2d 659.
The burden of proof rests with the mover. La.Code Civ.P. art. 966(D).
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. /d. 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. /d.
Appellate courts review summary judgments de novo, applying the same
criteria used by the trial court to determine whether summary judgment is
appropriate. La.Code Civ.P. art. 966(A)(3); Samaha, 977 So.2d 880. However,
the distinction between employee and independent contractor status is a factual
determination to be decided on a case-by-case basis. Stovall v. Shell Oil Co., 577
3
90.2d 732 (La.App. 1 Cir.), writ denied, 582 So.2d 1309 (La.1991). Generally,
factual findings of a trial court are reviewed under the manifest error/clearly wrong
standard. Kibodeaux v. Progressive Ins. Co., 08-791 (La.App. 3 Cir. 2/4/09), 4
S0.3d 222, writ denied, 09-472 (La. 4/17/09), 6 So.3d 794. As this matter comes
before us on summary judgment, we will review whether Doughty was acting as an
employee or an independent contractor for Beta based upon the undisputed
material facts presented. See La.Code Civ.P. art. 966.
The trial court granted summary judgment on behalf of Beta. While there
are no oral or written reasons, by its judgment the trial court concluded that
Doughty was working as an independent contractor at the time of the subject
accident, thus, dismissing Plaintiff's claims against Beta with prejudice. It is well
settled that “the term independent contractor connotes a freedom of action and
choice with respect to the undertaking in question and a legal responsibility on the
part of the contractor in case the agreement is not fulfilled in accordance with its
covenants.” Hickman v. Southern Pacific Transport Co., 262 La. 102, 117, 262
So.2d 385, 390 (La.1972). Unlike an employee, a pincipal generally is not liable
for offenses committed by an independent contractor while performing its
contractual duties, with two exceptions, one of which being if the pincipal reserves
the right to supervise or control the work. Ledent v. Guar. Nat’l Ins. Co., 31,346
(La.App. 2 Cir, 12/28/98), 723 So.2d 531. There is a reason for this disparate
treatment; for though both servant and independent contractor are engaged in the
performance of an employment for the benefit of the employer, it is the
independent contractor’s freedom from control which takes him out of the class of
a servant and thus relieves the employer from liability. Kibodeaux, 4 So.3d 222.
The Louisiana Supreme Court has found that the relationship of pincipal and
independent contractor exists when the following conditions are met:
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1. There is a valid contract between the parties;
2. The work being done is of an independent nature such that the
contractor may employ nonexclusive means in accomplishing it;
3. The contract calls for specific piecework as a unit to be done
according to the independent contractor’s own methods without
being subject to the control and direction of the principal, except as
to the result of the services to be rendered;
4. There is a specific price for the overall undertaking; and
5. Specific time or duration is agreed upon and not subject to
termination at the will of either side without liability for breach.
Smith v. Zellerbach, 486 So.2d 798, 801 (La.App. 1 Cir. 1986), writ denied, 489
So.2d 246 (La.1986) (citing Hickman, 262 So.2d 385).
In the instant case, neither party denies the existence of a contract between
Doughty and Beta, but rather its validity in defining the relationship. The contract
is entitled “Independent Landman Consulting Agreement” and was signed
December 13, 2010. However, the labeling of Doughty as an “independent
contractor” in the document is not dispositive of the actual nature of Doughty and
Beta’s relationship for the purposes of this case. As this court has stated:
“(Ojnce it is determined that an employment contract exists, for
purposes of the employer’s vicarious liability in tort, it is necessary to
determine what type of employment contract exists, i.e., whether the
employee is a mere servant or an independent contractor.” Hughes v.
Goodreau, 01-2107, p. 5 (La.App. 1 Cir. 12/31/02), 836 So.2d 649,
656, writ denied 03-232 (La.4/21/03), 841 So.2d 793 (emphasis
original). Although the parties may have designated Guidry as an
independent contractor in the contract, this designation is not
controlling on the rights of third persons. Rather, the rights of third
persons are determined by the substance of the contractual
relationship, rather than the title of it. Hughes v. Goodreau at 659
(citing Monsato Co. v. St. Charles Parish School Bd., 94-2145, pp. 5-
6 (La.2/20/95), 650 So.2d 753, 756-57). The legal relationship
between Guidry and the CPPJ will be determined both, “from the
contract between them and from their intentions in establishing and
carrying out that relationship as manifested in its performance and the
surrounding circumstances.” Hickman v. S. Pac. Transport Co., 262
La. 102, 116, 262 So.2d 385 (1972).
Kibodeaux, 4 $o0.3d at 225.
As the existence of a contract is only one factor to consider in totality with
the surrounding circumstances, we accordingly move to the next part of the
Hickman, 262 So.2d 385, test. Factors two and three are generally discussed
together and refer to the methods used to complete the project, the non-
exclusiveness of those methods, and the degree of control exercised by the pincipal.
Part three specifically focuses on the degree of control exercised by the pincipal, as
well as calling for a specific piecework as a unit. /d. The most important inquiry
to be made in determining the relationship between the parties is whether the
pincipal reserved the right to control the work. /d. It is not the actual supervision
and contro] that is exercised but rather it is the right to exercise control which is of
primary concern. /d.
Beta maintains that it did not retain control over the methods used by
Doughty in his day to day operations. This follows wording in the contract
between Beta and Doughty so stating. It claims to have controlled only the
services to be rendered by Doughty and the end product, but not Doughty’s work
as a landman, so as not to affect Doughty’s status as an independent contractor.
Beta asserts Doughty had the authority to get his work done without constant
supervision from project managers, many of whom were landmen also working for
Beta as supposed independent contractors. Beta asserts that Doughty knew how to
research and run titles as a landman before working for Beta and that he was able
to conduct his work according to his own methods.
These assertions are contradicted by Doughty’s own deposition testimony,
which we note was submitted by both parties in support of the cross motions for
summary judgment. When asked if the clause in his contract prescribing that
“CONTRACTOR|[Doughty] shall have control and management of the project
assignment and no right is reserved by BETA to direct or control the manner in
6
which the assignment is performed[]” accurately described his work relationship
with Beta, Doughty gave the following response: “No. They pretty much would
tell you the way that they would want it for the most part.” As to the level of
supervision of his work, Doughty testified that Beta would “tell you which way to
do it or if you have five things to cure they might tell you which one to do first and
”
show you how to do it[.]” Depending on the project, Beta would instruct him on
what to do and when to do it.
Additionally, while Doughty did testify that he was trained in how to attend
to duties as a landman before contracting with Beta, he also testified that he
underwent training so that his work could be completed in accordance with Beta’s
policies and forms. Doughty also stated that he could go days or weeks without
direct supervision from Beta on some jobs; however, he admitted that certain
projects had daily supervision, during which Beta mandated where Doughty
worked from and when he did said work. He also moved from project to project as
directed by Beta, rather than being contracted to complete a specific piecework as
a unit.
Further related to control and supervision, Beta contends that Doughty
controlled his work schedule and did not have to punch in a time clock and was
also able to work half-days. This assertion is likewise contrary to the deposition
testimony of Doughty. Doughty states in his testimony that he did not perform the
work on his own time. He specifically states that he was expected to be in Beta’s
office location every weekday from 8 A.M. until 5 P.M. if he was not out on a
specific job at a parish courthouse and that he did not feel he could take un-planned
half-days. When asked what would happen if Doughty decided to just take a day
off or not go into to Beta’s office, Doughty stated, “I never did that, I’m sure they
would not be happy.” When asked if he could set his own work hours, the
following colloquy appears in Doughty’s deposition testimony:
A. No, they more expected you to be at the office if you were
working on a local project, you couldn’t work from home, you had to
work from the office. And they expected you there, kind of, eight to
five.
Q. Okay. So, in your own opinion you, kind of, couldn’t set your
{- -] you couldn’t go in at 10 o’clock or 11 o’clock and leave at three?
A. I mean you could, but I don’t think the end results for you
would have been very good, I believe you would be terminated.
. When you say ‘terminated’ that means terminated from that
y y
project?
A. Or let go, laid off.
Q. Laid off by Beta?
A. — Right, yeah.
In addition to the time and place of the work functions dictated by Beta, as
understood through Doughty’s perspective, also relevant to the amount of control
and supervision on the daily work schedule were questions posed to Doughty
regarding his ability to take breaks during the typical workday. He responded:
“Yeah, we had a breakroom where you could go get coffee, there was no structure
as far as when you could and when you couldn’t get coffee. But, I mean, there
were times when people - - when you would hear them fussing at people going and
sitting in the breakroom too long or eating lunch too long, things of that nature.”
Part four of Hickman, 262 So.2d 385, looks to whether there was a specific
price for the overall undertaking. In his contract with Beta, it is specified that
Doughty was to make two hundred dollars a day, though that was not the rate
Doughty was being paid at the time of the accident. Doughty was paid his full
daily rate, regardless of whether he was in between projects or currently working
on one. Doughty also testified that he was paid for a full day on the day of the
8
subject accident, which included spending the morning cleaning out Beta’s Lutcher
office location and not working the afternoon after the accident occurred. Beta
was Doughty’s sole source of employment, and Doughty testified he did not
believe he could work for other companies without negative repercussions from
Beta. Further, Doughty received pay raises throughout his tenure with the
company, as acknowledged by Beta itself. According to Doughty, he was being
paid two hundred and ninety dollars per day at the time of the accident.
The final factor to consider is whether the contract and work to be done is
“for a specific time and not subject to termination or discontinuance at the will of
either side without a corresponding liability for its breach.” Hickman, 262 So.2d at
390-91. Beta argues that the “specific time” refers to the start and conclusion of
each project, noting that a specific time can be premised upon a future event which
is certain to occur, although its exact time is uncertain. See La.Civ.Code art. 1778.
However, Beta acknowledges that the contract was subject to termination by Beta
at any time without liability for breach, providing:
5. TERMINATION: This Agreement may be canceled by
BETA at any time upon notice to CONTRACTOR and by the
payment to the CONTRACTOR of the reasonable value of the work
therefore completed, but not in excess of the full compensation for the
completed work.
In Hickman, 262 So.2d 385, the supreme court held that the defendant was
an employee and not an independent contractor, despite the existence of a contract
stating otherwise. The court noted the defendant’s limited freedom in performing
his work and the employer’s control over things such as the time for performance
of his duties, as well as the order in which he performed them. The court also
noted that defendant did not work with or contract to work with any other company.
In its judgment, the Hickman court determined that the most telling factor in
determining that the relationship was not one of an independent contractor was the
9
stipulation that the contract could be terminated by either party without incurring
liability for breach, and further, could be terminated by the company at any time.
The court found that the “right to terminate the relationship without cause, where
no term of employment is prescribed, is characteristic of the master and servant or
employer-employee relationship. The right is at the same time antagonistic to the
independent contractor relationship.” Hickman, 262 So.2d at 391.
In Kibodeaux, 4 So.3d 222, this court found that an electrical inspector was
not an independent contractor despite having a contract stating otherwise. Using
the Hickman factors, the court noted that the inspector was not called on to
complete a specific piecework, such as the inspection or creation of a particular
thing, but rather he performed many electrical inspections as well as other tasks
assigned to him, much like Doughty. He was required to do his work in
accordance with the rules, regulations, and instructions of the division for which he
worked. He was given instructions on how to perform the work and was required
to report back. He was also given tools and supplies with which to work. Further,
the inspector’s rate of pay changed for ongoing services, rather than there being a
specific price for the entire project. Lastly, the court noted that the contract, like
the one in this case, was terminable at will. Based upon its analysis, the Kibodeaux
court found that the employment relationship did not meet the criteria for
independent contractor status.
In Hughes v. Goodreau, 01-2107 (La.App. 1 Cir. 12/31/02), 836 So.2d 649,
writ denied, 03-232 (La. 4/21/03), 841 So.2d 793, the first circuit employed the
Hickman factors to determine if real estate agents were employees of the broker
despite a written contract identifying the agents as independent contractors, noting
that such a designation was not binding or controlling on the rights of third persons.
In Hughes, the court noted that the broker did not dictate the number of hours to be
10
worked, the amount of properties to be overseen, or how associates were to spend
their time while working. However, the court also noted that the associates worked
exclusively for the broker and that they “were not free to carry out their work using
their own methods because their written employment contract required that they
‘comply with the Policy and Procedures Manual prepared by Broker.’” /d. at 659.
The associates were required to attend an introductory orientation on the broker’s
policies, and referrals were considered the property of the broker. The contract
could be terminated at any time by either party or could be terminated by the
broker for breach. Based upon these facts, the court found that the agents were not
independent contractors. /d.
Beta cites Hulbert v. Democratic State Cent. Comm. of Louisiana, 10-1910
(La.App. | Cir. 6/10/11), 68 So.3d 667, writ denied, 11-1520 (La. 10/7/11), 71
So.3d 316, in which the court ruled that the plaintiff was not an employee but an
independent contractor. The court noted that the contract between the plaintiff and
defendant, much like the instant case, could be terminated without cause, which is
characteristic of an employee-employer relationship. /d. However, following a
full analysis of the Hickman factors, the court found that “there are a number of
factors the court must consider in determining whether an independent contractor
relationship exists; no one factor is controlling, and the court must consider the
totality of the circumstances.” /d. at 672.
Beta notes that all payments made to Doughty were in the form of 1099s,
and that no taxes were withheld. See Collins v. Joseph, 250 So.2d 796 (La.App. 4
Cir. 1971). Additionally, Doughty never received any benefits or obtained medical
insurance through Beta. Beta asserts that the totality of the circumstances in this
instance clearly show that Doughty was an independent contractor. We disagree.
11
“The principal test in determining whether a relationship 1s an employer-
employee relationship or a principal-independent contractor relationship is control
over the work.” Hulbert, 68 So.3d at 670. Beta urges that it was only the end
product, or services to be rendered, that was directly controlled and supervised,
asserting that Doughty could go a whole week to a month without instruction from
a project manager. Doughty acknowledged as much; however, in addition to the
testimony highlighted above, Doughty also testified that the amount of supervision
Beta exerted varied, stating:
A Depended on the project, I guess, at times. Some projects had
more direct supervision than others, I would say.
Q What [do] you mean by more direct supervision?
A I guess, more like you said, if you were just going and
researching everyday then you would probably have less direct day-
to-day supervision. But some projects due diligence, in particular,
you were pretty much supervised on a day-to-day basis just because
they were, I guess, more time sensitive.
“{I]t is not the supervision and control actually exercised which is significant, but
whether, from the nature of the relationship, the right to exercise such control
exists.” /d. at 670 (alterations in original). While Doughty may have worked on
projects for Beta with minimal supervision, it is clear that Beta retained the right to
exercise control as evidenced by it asserting this right on certain projects and at
various times. Doughty testified that he was required to be in the office every day
from 8 A.M. until 5 P.M. He specifically testified to his belief that deviation from
this schedule would lead to termination by Beta. Beta was Doughty’s sole source
of employment from December 2010 until the subject accident, as he simply
moved from one project to the next. He further testified to his belief that
concurrent work for other employers would lead to termination by Beta. Doughty
was required to attend two weeks of training on compliance with Beta’s policies
12
and was given office supplies and a computer by Beta. See Hughes, 836 So.2d 649.
Further, there was no specific price for the overall undertaking. See Hickman, 262
So.2d 385. Instead, Beta raised Doughty’s daily rate of pay for services that were
ongoing, akin to pay raises, rather than there having been a set price for a specific
project or overall undertaking. See Kibodeaux, 4 So.3d 222. The daily payment
arrangement when considered with the required work time schedule more closely
resembles a true employer-employee relationship rather than a_ pincipal-
independent contractor relationship whereby the contractor is paid a set price for a
given project. See Hickman, 262 So.2d 385. None of these specific facts are in
dispute given our thorough review of the pleadings, motions, and exhibits filed in
support and in opposition of the summary judgment motions.
Finally, the most revealing fault in Beta’s contention that Doughty was an
independent contractor is the stipulation that the contract could be terminated by
Beta upon notice without incurring liability for breach. The Louisiana Supreme
Court has recognized that:
“[T]he most telling facts defining the relationship as master-
servant (rather than that of employer-independent contractor) were
that the contract between the parties could be terminated by either
party upon written notice to the other without incurring liability for
breach; and that the employer had the right to terminate the
relationship at any time when the employee’s services became
unsatisfactory to the employer.”
Hughes, 836 So.2d at 658-59. “This right to terminate the relationship without
cause, where no term of employment is prescribed, is characteristic of the master
and servant or employer-employee relationship. The right is at the same time
antagonistic to the independent contractor relationship.” Hickman, 262 So.2d at
391. In this case, Beta reserved the right in the contract to terminate Doughty’s
work for the company without regard to any specific project, and without liability
for breach of contract. According to the terms of the contract between them,
13
Doughty would only be eligible to recover his daily compensation through the date
of termination, much akin to an at-will employer-employee relationship.
When determining whether an independent contractor relationship exists, the
court must consider a number of factors and make a judgment based upon the
totality of the circumstances. Hulbert, 68 So.3d 667. The evidence submitted in
this case consists entirely of Doughty’s deposition testimony, the employment
contract between Beta and Doughty, and an affidavit signed by Doughty before he
began performing work for Beta. Based upon the facts presented, it is clear that
Doughty did not have an independent contractor relationship with Beta, but rather
was working as an employee of Beta for the purposes and rights of third parties.
Additionally, as asserted in Plaintiff's second assignment of error, Doughty
was not acting as an independent contractor on the day of the accident but was on a
mission for Beta. 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. Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d
224. The Louisiana Supreme Court has noted that “‘[A]n employee traveling to or
returning from a special mission is acting in the course of employment.’” McLin v.
Indus. Specialty Contractors, Inc., 02-1539, pp. 8-9 (La. 7/2/03), 851 So.2d 1135,
1142. For a mission to qualify as a special mission and thus be considered as
employment-related rather than personal, an employee is deemed to be in the
course of employment when he is engaged in the direct performance of duties
assigned (or requested, directed, instructed or required) by his employer. Biscamp
v. Sysco E. Texas, 46,182 (La.App. 2 Cir. 4/13/11), 63 So.3d 1097.
At the time of the subject accident, Doughty was on his way to Beta’s office
location in Lafayette from Lutcher, Louisiana, where he had spent the morning
cleaning out a Beta field office with a Beta supervisor. Doughty had been asked to
14
clean out the field office due to its proximity to his residence. Doughty had been
working out of the Lafayette office for two weeks prior to the subject collision and
commuted there from his residence in Denham Springs.
On the morning in question, Doughty had been asked to go to the Lutcher
field office before going to Lafayette. Doughty met a Beta supervisor there,
worked for a couple of hours cleaning out the office, and packed up extra supplies
into his vehicle to be transported to Beta’s Lafayette location. He acknowledges
that he could have refused, in which case Beta would have sent someone else to do
it. Beta asserts that Doughty volunteered to pick up the supplies, that he was not
required to do so but was merely asked. However, the supreme court has found
that “when an employee is requested, directed, instructed, or required by the
employer to be away from the place of employment, the employee is deemed to be
in the course of employment because the employee is engaged in the direct
performance of duties assigned by the employer.” McLin, 851 So.2d at 1143
(emphasis added).
We also find no merit to Beta’s repeated assertion that because Doughty
would have been commuting from Denham Springs to the Beta office in Lafayette
that day, his driving from the Lutcher office to the Lafayette office cannot have
been a mission for the company. His actions provided a direct benefit to Beta and
he was clearly not on a personal pursuit. If an employee is on a special mission, he
is within the course of his employment from portal-to-portal or, in other words,
from his home to the location of the mission, or alternatively, from the location of
the mission to his home. /d. While we note that an employer is generally not
liable for acts committed by its employee while the employee is going to or
coming from work, Doughty was not on his way to work. He was already at work,
leaving Beta’s field office and returning to its main office to deposit the extra
15
supplies from the Lutcher location. In fact, after the accident, Doughty continued
on to the Beta office location and unloaded the supplies and was paid his full daily
rate despite leaving soon after doing so. ‘“We can find no support for the
proposition that, because an employee happens to travel along his usual route while
returning []from a special mission, the employee ceases to be protected under the
exception.” /d, at 1143.
As such, we reverse the judgment of the trial court granting Beta’s motion
for summary judgment. Further, we grant Plaintiff's motion for partial summary
judgment, finding Beta vicariously liable for the actions of its employee, Doughty,
on the date of the subject accident. Plaintiff's remaining assignment of error is
dismissed as moot.
DISPOSITION
Based upon the foregoing, we reverse the judgment of the trial court which
granted Beta’s motion for summary judgment on the issue of vicarious liability and
the finding that Jeffrey Doughty was an independent contractor. Further, we grant
Brock Simon’s motion for partial summary judgment, finding Jeffrey Doughty was
not working as an independent contractor on the date of the subject accident and
Beta is vicariously liable for his actions. This matter is remanded to the trial court
for proceedings in accordance herewith. All costs of this appeal are assessed to
appellee, Beta Land Services, Inc.
REVERSED, RENDERED, AND REMANDED.
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