The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
23-125
LUCILLE JONES
VERSUS
JIMMY ROGERS AND
IBERIA PARISH SCHOOL BOARD
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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 00134097, DIV. “F”
HONORABLE ANTHONY J. SALEME, JR., DISTRICT JUDGE
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JONATHAN W. PERRY
JUDGE
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Court composed of Candyce G. Perret, Jonathan W. Perry, and Wilbur L. Stiles,
Judges.
AFFIRMED.
Donovan J. O’Pry, II
Geremy A. Garcia
Luke T. Habetz
O’Pry Law Firm
2014 W. Pinhook Road, Suite 507
Lafayette, Louisiana 70508
(337) 415-0007
COUNSEL FOR PLAINTIFF/APPELLANT:
Lucille Jones
J. Wayne Landry
1500 Jane Street
New Iberia, Louisiana 70563
(337) 365-2341
COUNSEL FOR DEFENDANTS/APPELLEES:
Jimmy Rogers, Iberia Parish School Board,
and Berkley Insurance Company
PERRY, Judge.
The issue in this appeal is whether Plaintiff’s claim is restricted to workers’
compensation or whether she can pursue a tort action for damages. The trial court
granted Defendants’ motion for summary judgment, sustained Defendants’
peremptory exception of no cause of action, and dismissed Plaintiff’s tort claims,
finding Plaintiff is limited to the remedies provided by the Louisiana Workers’
Compensation Act (“LWCA”). For the following reasons, we affirm the judgment
of the trial court.
FACTS AND PROCEDURAL HISTORY
Plaintiff/Appellant, Lucille Jones (“Jones”), a teacher’s aide at Westgate High
School (“Westgate”) in New Iberia, was allegedly injured in an automobile accident
which occurred on May 2, 2018. The petition filed in this matter specifies the
accident occurred “at approximately 2:49 p.m.” as Jones was driving “in the left exit
lane of the driveway of Westgate” and as Defendant, Jimmy Rogers (“Rogers”), was
driving a school bus “in the right loading lane of the driveway of Westgate[.]”
Rogers “attempted to move into the left exit lane in front of [Jones’s] vehicle and
collided with the right front of [Jones’s] vehicle[.]”
Asserting that Rogers was the sole cause of the accident and her resulting
injuries, Jones filed the current tort suit against him and his purported automobile
liability insurer, Gulf South Risk Services. Jones subsequently amended her
pleadings to name Iberia Parish School Board (“IPSB”) as a defendant who provided
self-insurance coverage for the damages caused by its employee, Rogers, as well as
Berkley Insurance Company (“Berkley”), Rogers’s actual automobile liability
insurer.
IPSB, Rogers, and Berkley (hereinafter collectively referred to as
“Defendants”) filed a motion for summary judgment and an exception of no cause
of action, requesting dismissal of Jones’s tort claims. Defendants argued there were
no genuine issues of fact on the questions of the co-employment of Jones and Rogers
and the collision occurring on the premises of their employer, IPSB. Defendants
further argued that if summary judgment is granted, Defendants were also entitled
to dismissal of Jones’s lawsuit on the basis her petition failed to state a cause of
action in tort against all Defendants.
The trial court granted summary judgment in favor of Defendants finding they
were immune from tort liability. On August 31, 2022, a judgment was signed
granting the motion for summary judgment, sustaining the exception of no cause of
action, and dismissing Jones’s lawsuit with prejudice. It is from this judgment that
Jones appeals.
APPELLANT’S ASSIGNMENT OF ERROR
Jones sets forth the following assignment of error in her appeal of the trial
court’s dismissal of her claims:
Whether the trial court erred in granting IPSB, Berkley Insurance
Company, and Jimmy Rogers’ Motion for Summary Judgment and No
Cause of Action as the LWCA does not apply to the case at hand as she
was clearly not in the course and scope of her employment at the time
of the accident.
APPELLANT’S ARGUMENTS
Jones contends the trial court erred in finding that the accident arose out of
and in the course and scope of her employment and, thus, erred in granting
Defendants’ motion for summary judgment. Jones argues she was not in the course
and scope of her employment at the time of the accident because her work duties as
a teacher’s aide at Westgate had concluded earlier in the day, she had returned to her
personal vehicle, and she was in the process of exiting the parking lot of Westgate
when the accident occurred.
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Jones further asserts that despite IPSB’s argument that she was in the course
and scope of her employment, IPSB has never opened a workers’ compensation
claim for her.
APPELLEES’ POSITION
Defendants contend the trial court did not err in granting summary judgment,
finding Jones’s exclusive remedy is in workers’ compensation. They argue La.R.S.
23:1032 precludes Jones from pursuing a tort claim against her employer and co-
employee because Jones’s alleged damages were caused by the unintentional acts of
her co-employee on her employer’s premises.
As to Jones’s criticism of IPSB for not opening a workers’ compensation
claim for her, Defendants allege Jones’s intentional effort not to identify Rogers as
a co-employee and the intentional omission of IPSB as a named defendant in her
original petition indicates Jones never intended to pursue a workers’ compensation
claim. However, they note a workers’ compensation claim was ultimately submitted
by Jones in August 2022.
LAW AND DISCUSSION
Summary judgments are reviewed by appellate courts de novo, using the same
criteria considered by the trial court. Gibson v. Shaw Global Energy Servs., 04-547
(La.App. 3 Cir. 10/27/04), 885 So.2d 707, writ denied, 04-2920 (La. 2/4/05), 893
So.2d 876. This inquiry seeks to determine whether any genuine issues of material
fact exist and whether the movant is entitled to judgment as a matter of law. La.Code
Civ.P. art. 966(A)(3).
“The burden of proof rests with the mover.” La.Code Civ.P. art. 966(D)(1).
If the mover will not bear the burden of proof at trial on the matter at issue, the mover
need not “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
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more elements essential to the adverse party’s claim, action, or defense.” Id.
Specifically, “[t]he 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.” Id.
The parties in this case do not dispute when, where, or how the collision
between Jones and Rogers occurred. Rather, the only question before this court is
whether these undisputed facts arose out of and in the course and scope of Jones’s
employment, thereby precluding her from pursuing a tort claim against Defendants.
Louisiana Revised Statutes 23:1031(A) provides that compensation shall be
paid by an employer for an employee’s “personal injury by accident arising out of
and in the course of his employment[.]” Louisiana Revised Statutes 23:1032
(A)(1)(a) provides in pertinent part:
Except for intentional acts . . . the rights and remedies herein
granted to an employee . . . on account of an injury . . . for which he is
entitled to compensation under [the workers’ compensation law], shall
be exclusive of all other rights, remedies, and claims for damages, . . .
unless such rights, remedies, and damages are created by a statute. . . .
Louisiana Revised Statutes 23:1032(A)(1)(b) extends this exclusive remedy to
claims against employers or fellow employees, and La.R.S. 23:1032(C) further
emphasizes the significance of the exclusivity of the remedy by declaring it to be an
“immunity from civil liability[.]”
In this case, Jones contends the automobile accident in which she was injured
did not arise out of and in the course of her employment because her duties as a
teacher’s aide had ended and she was on her way home when the accident occurred.
Jones argues these facts should place her under the general rule that injuries
sustained by an employee while traveling to and from work are not considered to
have occurred within the course of employment and, therefore, are not compensable
under the LWCA. Justice v. Sylvester, 499 So.2d 590 (La.App. 5 Cir.), writ denied,
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503 So.2d 491 (La.1987). “This rule, often called the ‘going-and-coming rule,’ is
premised on the theory that, ordinarily, the employment relationship is suspended
from the time the employee leaves his work to go home until he resumes his work.”
McLin v. Indus. Spec. Contractors, Inc., 02-1539, p. 4 (La. 7/2/03), 851 So.2d 1135,
1140.
Defendants argue this is a case of the application of La.R.S. 23:1032(A)(1)(a)
immunity to IPSB (employer) and Rogers (co-employee of Jones). They contend
Jones’s remedy is limited to the LWCA because: Jones’s alleged injuries occurred
on her employer’s premises and Jones alleges her injuries were caused by her co-
employee, Rogers, who was, at all times material hereto, within the course and scope
of his employment. We agree.
In McLin, 851 So.2d at 1140 n.1, the supreme court noted:
The following have been cited in the jurisprudence as exceptions
to the going-and-coming rule:
(1) If the accident happened on the employer’s premises;
(2) If the employee was deemed to be on a specific mission
for the employer, such as making a trip in the interest of
his employer’s business or pursuant to his employer’s
order;
(3) If the employer had interested himself in the
transportation of the employee as an incident to the
employment agreement either by contractually providing
transportation or reimbursing the employee for his travel
expenses;
(4) If the employee was doing work for his employer under
the circumstances where the employer’s consent could be
fairly implied;
(5) If the employee was hurt while traveling to and from
one work site to another;
(6) If the employee was injured in an area immediately
adjacent to his place of employment and that area
contained a distinct travel risk to the employee (the
“threshold doctrine”); and
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(7) If the operation of a motor vehicle was the performance
of one of the duties of the employment of the employee.
See also Williams v. Pilgrim’s Pride Corp., 11-59 (La.App. 3 Cir. 6/1/11), 68 So.3d
616, writs denied, 11-1793, 11-1794 (La. 10/21/11), 73 So.3d 384.
The facts in this case fall squarely under the first exception quoted above. In
Edigo v. Otis Elevator Co., 19-229 (La.App. 3 Cir. 11/6/19), 283 So.2d 592,
summary judgment was granted in favor of the defendant hospital restricting the
plaintiff’s remedy to workers’ compensation. Edigo was injured as she exited an
unlevel elevator en route to her job as a food service worker. Edigo was not yet on
the clock; she was scheduled to begin work at 9:00 a.m., but exited the elevator and
tripped at 8:30 a.m. The court noted the elevator was used by the public and
employees alike.
The Edigo court, relying on an analogous matter from the fourth circuit, Bosse
v. Westinghouse Electric, Inc., 93-1898 (La.App. 4 Cir. 5/17/94), 637 So.2d 1157,
writ denied, 94-1623 (La. 9/30/94), 642 So.2d 878, explained:
[Edigo] claims the Hospital must prove that she was injured while
performing her duties as a nutrition service worker and that the accident
arose from that work. We disagree. To allow parties recovery in
workers’ compensation and/or employers to assert tort immunity under
such narrow circumstances ignores the reality of employment,
particularly in large places like hospitals. Bosse was not performing
any specific job duties when he was exiting the elevator, yet, he was in
close proximity to the place where he would be. The facts here are
indistinguishable from Bosse.
Edigo, 283 So.3d at 595–96.
The court in Edigo further noted that in Theriot v. Full Service Systems Corp.,
14-1199 (La.App. 3 Cir. 5/27/15), 166 So.3d 1190, writ denied, 15-1603 (La.
11/20/15), 181 So.3d 700, a “parking lot qualified as the ‘employer’s premises’ for
purposes of finding coverage in workers’ compensation.” Edigo, 283 So.2d at 596.
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We also find Lachney v. Riddle, 577 So.2d 173 (La.App. 1 Cir.), writ denied,
578 So.2d 914 (La.1991), persuasive and worthy of mention. In Lachney, summary
judgment was granted in favor of the defendant-employer restricting the plaintiff’s
remedy to workers’ compensation. Lachney, a correctional officer, was injured in
an automobile accident which occurred on the road leading to the Louisiana State
Penitentiary at Angola, as Lachney was leaving his job twenty minutes after his shift
ended. The first circuit affirmed the grant of summary judgment, finding the road
was part of the premises at which Lachney was employed; thus, Lachney’s injuries
did arise out of and in the course of his employment even though he was traveling
home at the time of the accident.
Considering the evidence and the law, we find there are no genuine issues of
material fact, and Defendants are entitled to judgment as a matter of law. Defendants
are immune from tort liability; Jones’s exclusive remedy is workers’ compensation.
DECREE
The judgment of the trial court which granted summary judgment and
sustained the peremptory exception of no cause of action is affirmed. All costs of
this appeal are assessed to Plaintiff/Appellant, Lucille Jones.
AFFIRMED.
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