The opinion
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 1009
BRANDY BOUDREAUX
A
VERSUS
MARY P. COCO AND PROGRESSIVE PALOVERDE
INSURANCE COMPANY
Judgment Rendered:
APR 8 I.
On Appeal from the Twenty -Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket No. 121, 865
Honorable Katherine Stromberg, Judge Presiding
Steve Adams Counsel for Plaintiff/ Appellant
Baton Rouge, LA Brandy Boudreaux
Ian A. MacDonald Counsel for Defendant/ Appellee
Lafayette, LA Progressive Paloverde Insurance
Company
William C. Helm Counsel for Defendant/ Appellee
Baton Rouge, LA Mary P. Coco
BEFORE: McCLENDON, WELCH, AND THERIOT, ».
McClendon, J.
In this personal injury suit, the plaintiff appeals the trial court's judgment granting
summary judgment in favor of the defendant and dismissing her claims with prejudice.
For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On May 2, 2017, Brandy Boudreaux' was a passenger in a vehicle driven by her
mother, Mary Coco, when Ms. Coco' s vehicle collided with the rear end of another vehicle.
Ms. Boudreaux filed a petition for damages on April 26, 2018, naming as defendants Ms.
Coco and her liability insurer, Progressive Paloverde Insurance Company ( Progressive).
The petition asserted that Ms. Coco was at fault in causing the collision by rear -ending
the other vehicle and that Ms. Boudreaux sustained damages as a result of the collision.
Progressive answered Ms. Boudreaux' s petition on June 20, 2018. Progressive
generally denied the petition' s allegations and its liability and specifically pled as an
affirmative defense that the policy of liability insurance Progressive issued to Ms. Coco
the policy) excluded coverage for Ms. Boudreaux' s claims, because she was an employee
of Ms. Coco at the time of the accident. On December 26, 2018, Ms. Coco also answered
the petition with a general denial of the petition' s allegations and her liability.
On July 8, 2019, following discovery, Progressive filed a motion for summary
judgment seeking dismissal of Ms. Boudreaux' s claims. z Progressive maintained that the
policy excluded coverage for an employer' s liability arising out of or within the course of
the employee' s employment with the insured, or while performing duties related to the
conduct of any insured' s business ( the employer's liability exclusion). Contending that Ms.
Boudreaux was an employee of Ms. Coco and was within the course and scope of her
employment with Ms. Coco at the time the accident occurred, Progressive asserted that
the employer's liability exclusion applied to Ms. Boudreaux's claims. In support of its
motion for summary judgment, Progressive submitted Ms. Boudreaux's responses to
1 We note that Ms. Boudreaux testified she resumed use of her maiden name, Ortego, in approximately
October of 2018, after the accident and institution of this suit.
Z Progressive had previously filed a motion for summary judgment on January 22, 2019, which was set for
hearing on March 29, 2019. A minute entry reflects that Progressive passed the motion for summary
judgment set for hearing on that date.
2
requests for admission, a certified copy of Progressive' s policy issued to Ms. Coco, Ms.
Boudreaux' s petition, and the deposition testimony of Ms. Boudreaux and Ms. Coco.
Ms. Boudreaux opposed Progressive' s motion for summary judgment. Ms.
Boudreaux argued that the employer's liability exclusion did not apply to her claims
because she was working with Ms. Coco as an independent contractor, not an employee,
at the time of the accident. In support of her opposition, Ms. Boudreaux submitted her
deposition transcript and Ms. Coco' s deposition transcript.
Progressive' s motion for summary judgment was heard on August 22, 2019.
Following oral argument, the trial court took the matter under advisement. The trial court
executed a written judgment granting summary judgment in favor of Progressive. Ms.
Boudreaux has appealed the trial court's judgment.3
SUMMARY JUDGMENT
In determining whether summary judgment is appropriate, appellate courts review
evidence de novo under the same criteria that governs the trial court's determination of
whether summary judgment is appropriate. Shoemake v. Scott, 2019- 1261 ( La. App. 1
Cir. 8/ 3/ 20),
310 So. 3d 191, 194. That is, after an opportunity for adequate discovery, a
motion for summary judgment 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. LSA- C. C. P. art. 966( A)( 3).
On a motion for summary judgment, the burden of proof rests with the
mover. LSA- C. C. P. art. 966( D)( 1). If the mover will bear the burden of proof at trial on
the issue before the court in the motion for summary judgment, the burden of showing
there is no genuine issue of material fact remains with the mover. When the mover makes
a prima facie showing that the motion should be granted, the burden then shifts to the
non- moving party to present factual support, through the use of proper documentary
evidence attached to its opposition, which establishes the existence of a genuine issue of
3 On September 4, 2019, the trial court executed a written judgment and reasons for judgment granting
summary judgment in favor of Progressive. Ms. Boudreaux appealed the September 4, 2019 judgment;
however, this Court dismissed Ms. Boudreaux' s appeal for lack of decretal language. See Boudreaux v.
Coco, 2020- 0042 ( La. App. 1 Cir. 4/ 28/ 2020) ( unpublished action). Thereafter, the trial court executed a
second written judgment granting Progressive's motion for summary judgment and dismissing Ms.
Boudreaux's claims on June 18, 2021. Ms. Boudreaux has now appealed the June 18, 2021 judgment.
3
material fact or that the mover is not entitled to judgment as a matter of law. LSA- C. C. P.
art. 966( D)( 1); June Medical Services, LLC v. Louisiana Department of Health,
2019- 0191 ( La. App. 1 Cir. 3/ 4/ 20), 302 So. 3d 1161, 1164. If the adverse party fails to do
so, there is no genuine issue of material fact and summary judgment will be granted.
McCoy v. Manor, 2018- 1228 ( La. App. 1 Cir. 5/ 9/ 19), 277 So. 3d 344, 348.
A genuine issue of material fact is one as to which reasonable persons could
disagree; if reasonable persons could reach only one conclusion, there is no need for trial
on that issue and summary judgment is appropriate. Marks v. Schultz, 2020- 0197
La. App. 1 Cir. 12/ 10/ 20), 316 So. 3d 534, 538. Material facts are those that potentially
insure or preclude recovery, affect the litigant's success, or determine the outcome of a
legal dispute. Jenkins v. Hernandez, 2019- 0874 ( La. App. 1 Cir. 6/ 3/ 20), 305 So. 3d
365, 371, writ denied, 2020- 00835 ( La. 10/ 20/ 20), 303 So. 3d 315. Because it is the
applicable substantive law that determines materiality, whether a particular fact in dispute
is material can be seen only in light of the substantive law applicable to the case. Galliano
v. CB & I, LLC, 2018- 0844 ( La. App. 1 Cir. 4/ 10/ 19), 275 So. 3d 906, 909.
INSURANCE COVERAGE
Whether an insurance policy, as a matter of law, provides or precludes coverage
is a dispute that can be properly resolved within the framework of a motion for summary
judgment. George S. May International Co. v. Arrowpoint Capital Corp., 2011-
1865 ( La. App. 1 Cir. 8/ 10/ 12), 97 So. 3d 1167, 1171. An insurance policy is a contract
between the parties and should be construed using the general rules of contractual
interpretation. Hinchcliffe v. Siaotong, 2017- 1356 ( La. App. 1 Cir. 4/ 18/ 18), --- So. 3d
2018 WL 1870159, at * 2, writ denied, 2018- 1113 ( La. 10/ 15/ 18), 253 So. 3d 1304.
Interpretation of a contract is the determination of the common intent of the parties.
LSA- C. C. art. 2045. When the words of an insurance contract are clear and explicit and
lead to no absurd consequences, no further interpretation may be made in search of the
parties' intent and courts must enforce the contract as written. LSA- C. C. art. 2046;
Sensebe v. Canal Indemnity Co., 2010- 0703 ( La. 1/ 28/ 11), 58 So. 3d 441, 446.
When determining whether a policy affords coverage for an incident, the insured
bears the burden of proving the incident falls within the policy's terms. Miller v.
51
Superior Shipyard and Fabrication, Inc., 2001- 2683 ( La. App. 1 Cir. 11/ 8/ 02), 836
So. 2d 200, 203. However,
an insurer seeking to avoid coverage through summary
judgment bears the burden of proving that a loss falls within a policy exclusion, such that
application of the exclusion precludes coverage. Savoie v. Anco Insulations, Inc.,
2020- 0584 ( La. App. 1 Cir. 4/ 9/ 21), 322 So. 3d 1264, 1266.
Additionally, because the purpose of liability insurance is to afford the insured
protection from damage claims, policies should be construed to effect, not to deny,
coverage. A provision which seeks to narrow the insurer's obligation is therefore strictly
construed against the insurer. Myers v. Welch, 2017- 0063 ( La. App. 1 Cir. 10/ 25/ 17),
233 So. 3d 49, 55, writ denied, 2017- 2165 ( La. 3/ 9/ 18), 238 So. 3d 454. Any ambiguity in
the exclusion is construed in favor of the insured. Nonetheless, an insurance policy,
including its exclusions, should not be interpreted in an unreasonable or strained manner
so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by
its terms or so as to achieve an absurd conclusion. Savoie, 322 So. 3d at 1266- 67.
Subject to the above rules of interpretation, insurance companies have the right
to limit coverage in any manner they desire, so long as the limitations do not conflict with
statutory provisions or public policy. 4 Myers, 233 So. 3d at 55. A summary judgment
declaring a lack of coverage under an insurance policy may be rendered when there is
no reasonable interpretation of the policy, when applied to the undisputed facts shown
4 We note that Ms. Boudreaux argues on appeal that the trial court erred in applying the employer's liability
exclusion, because the exclusion is contrary to Louisiana law and public policy. However, Ms. Boudreaux
raised this issue for the first time on appeal. As a general rule, appellate courts may not address issues
raised for the first time on appeal; rather, we address only those issues previously presented by the parties
and considered by the trial court. Jackson v. Home Depot, Inc., 2004- 1653 ( La. App. 1 Cir. 6/ 10/ 05),
906 So. 2d 721, 725.
To the extent one might argue that Progressive' s motion for summary judgment implicitly raised
the issue of public policy by relying on Spain v. Travelers Ins. Co., 332 So. 2d 827, 830 ( La. 1976), for
the proposition that exclusions such as the one at issue are enforceable even when the injured employee
is not entitled to workers' compensation benefits, we still cannot say that Ms. Boudreaux raised the issue
of public policy to the trial court. In response to Progressive's reliance on Spain, Ms. Boudreaux's opposition
to the motion for summary judgment disputed Progressive's interpretation of Spain and distinguished
Spain from the instant case, but did not present arguments regarding the issue of whether the employer's
liability exclusion violates Louisiana public policy. Accordingly, we do not consider this issue on appeal.
We further note that this Court recently found that the same employer's liability exclusion did not
conflict with statutory provisions or violate public policy in Hinchcliffe, --- So. 3d at ---, 2018 WL 170159,
at * 3- 4, where the injured party received workers' compensation benefits. However, Hinchcliffe did not
address whether the exclusion would violate public policy if workers' compensation benefits had not been
available.
5
by the evidence supporting the motion, under which coverage could be afforded. Kirby
v. Ashford, 2015- 1852 ( La. App. 1 Cir. 12/ 22/ 16), 208 So. 3d 932, 937.
THE PROGRESSIVE POLICY
Progressive' s motion for summary judgment contends that the following provisions
of its policy, referred to herein as the employer's liability exclusion, clearly and plainly
exclude Ms. Boudreaux' s claims from coverage:
Coverage under [ PART I —LIABILITY TO OTHERS]... does not apply to:
S. Employee Indemnification and Employer' s Liability Bodily
I] njury to:
a. An employee of any insured arising out of or within the course of:
i) That employee' s employment by any insured; or
ii) Performing duties related to the conduct of any insured' s business; or
b. The spouse, child, parent, brother or sister of that employee as a
consequence of Paragraph a. above.
In response, Ms. Boudreaux asserts that she was an independent contractor, rather than
an employee, and therefore not excluded from coverage for her injuries under the policy.
Thus, the central issue in this appeal is the nature of the relationship between Ms.
Boudreaux and Ms. Coco.
THE EMPLOYER- EMPLOYEE RELATIONSHIP
The distinction between an employee and an independent contractor status is a
factual determination to be decided on a case- by- case basis. Tower Credit, Inc. v.
Carpenter, 2001- 2875, ( La. 9/ 4/ 02), 825 So. 2d 1125, 1129. The Louisiana Supreme
Court recently set forth the following summary of law on this issues in Bolden v. Tisdale,
2021- 00224 ( La. 1/ 28/ 22), --- So. 3d ---, ---, 2022 WL 262976, at * 6:
The single most important factor to consider in deciding whether the
employer-employee relationship exists, for purposes of La. C. C. art. 2320,
is the right of the employer to control the work of the employee. Roberts
v. State, Through the Louisiana Health and Human Resources
Administration, 404 So. 2d 1221, 1225 ( La. 1981) ( citing Hickman v.
Southern Pacific Transport Company, 262 La. 102, 262 So. 2d 385
1972), and Blanchard v. Ogima, 253 La. 34, 215 So. 2d 902 ( 1968)). In
5 While Bolden discussed this issue within the context of LSA- C. C. art. 2320, we recently applied the
analysis set forth in Hickman in Ellis v. Circle L Trucking, L. L.C., 2021- 0457 ( La. App. 1 Cir. 12/ 30/ 21),
So. 3d ---, ---,
2021 WL 6329796, at * 4- 6, within the same context as the present case — that is,
considering the nature of the relationship between two parties for the purpose of determining whether an
insurance exclusion applied.
N
Blanchard, this court stated: " It is the right of control of the time and
physical activities in the other parry and the existence of a close relationship
between the parties which determine that one is a servant." Id., 253 La. at
44, 215 So. 2d at 905. This court further stated: " ' Servant' must be
interpreted as that particular kind of agent who has a very close economic
relation to, and is subject to very close control by, the principal. A servant
is one who offers his personal services for a price. He is an integral part of
his employer's business and must submit to the control of his physical
conduct as well as of his time." Id., 253 La. at 47, 215 So. 2d at 906. The
four primary evidentiary factors considered in deciding whether such an
employer-employee relationship exists relate to whether the alleged
employer has the right or duty, relative to the employee, of: ( 1)
selection
and engagement; ( 2) 3) power of dismissal; and ( 4)
payment of wages; (
power of control. Hillman v. Comm -Care, Inc., 01- 1140,
p. 8 ( La.
1/ 15/ 02), 805 So. 2d 1157,
1162. However, no one factor is controlling;
rather, the totality of the circumstances must be considered, and the burden
of proof is on the party seeking to establish an employer-employee
relationship. Hillman, 01- 1140 at pp. 8- 9, 805 So. 2d at 1163.
In contrast to the employer-employee relationship, the status of an
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 Company, 262
La. 102, 117, 262 So. 2d 385, 390 ( 1972). An independent contractor
relationship presupposes a contract between the parties, the independent
nature of the contractor's business, and the nonexclusive means the
contractor may employ in accomplishing the work. Id. Moreover, it should
appear that 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, in the performance of the service, of
his employer, except as to the result of the services to be rendered. Id. It
must also appear that a specific price for the overall undertaking is agreed
upon; that its duration 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. Id., 262 La. at 117, 262 So. 2d at 390- 91. The law further
recognizes the inquiry to determine whether a relationship is that of
independent contractor or that of a servant/ employee requires, among
other factors, the application of the principal test: the control over the work
reserved by the employer. Id., 262 La. at 117, 262 So. 2d at 391. In applying
this test it is not the supervision and control which is actually exercised
which is significant; the important question is whether, from the nature of
the relationship, the right to do so exists. Id., 262 La. at 117- 18, 262 So. 2d
at 391.
Bolden, --- So. 3d at ---, 2022 WL 262976 at * 6.
A court should consider the totality of the circumstances in deciding whether an
employer-employee relationship exists or whether it is an instance where the individual
has independent contractor status. Fonseca v. City Air of Louisiana,. LLC, 2015- 1848
La. App. 1 Cir. 6/ 3/ 16), 196 So. 3d 82, 87.
7
DISCUSSION
As set forth above, Progressive sought summary judgment on the basis that the
employer's liability exclusion applies and precludes coverage for Ms. Boudreaux' s claims.
Accordingly, Progressive bore the burden of proof both as the moving party seeking
summary judgment and as the insurer seeking to avoid coverage through summary
judgment. See Savoie, 322 So. 3d at 1266. Thus, the initial question before this Court,
in reviewing the summary judgment, is whether Progressive established that the
employer's liability exclusion contained in the policy applies to the facts presented herein
and excludes coverage for Ms. Boudreaux's claims. If Progressive made a prima facie
showing that its motion should be granted, the burden then shifted to Ms. Boudreaux to
produce factual support sufficient to establish the existence of a genuine issue of material
fact or that Progressive was not entitled to judgment as a matter of law. See June
Medical Services, 302 So. 3d at 1164. If Ms. Boudreaux failed to do so, there was no
genuine issue of material fact and summary judgment was properly granted. See McCoy,
277 So. 3d at 348.
As set forth above, in support of Progressive's motion for summary judgment,
Progressive offered Ms. Boudreaux' s responses to requests for admission, a certified copy
of Progressive' s policy issued to Ms. Coco, Ms. Boudreaux's petition, and the depositions
of Ms. Boudreaux and Ms. Coco. Although there was no written document describing Ms.
Coco and Ms. Boudreaux's working relationship, Ms. Boudreaux' s responses to requests
for admission, together with the deposition testimony, consistently described the details
of their arrangement and the events surrounding the accident.
Ms.
Boudreaux's responses to requests for admissions included the following
admissions: that she was working with Ms. Coco on the date of the accident, that Ms.
Coco paid her to install blinds and other window coverings on the date of the accident,
and that she was ` coming from one installation heading to another installation" at the
time the accident occurred. Ms. Coco' s and Ms. Boudreaux' s deposition testimony further
elaborated on these facts as summarized below.
Ms. Coco installs window treatments pursuant to a contract with Lowe' s Home
Improvement ( Lowe' s). Lowe' s customers may pay a fee to Lowe' s, which Lowe' s then
remits to Ms. Coco, to have their homes measured for window treatments. After Ms. Coco
completes the measurements, a Lowe' s computer program generates a price quote based
on the measurements and the window treatment chosen. If the customer chooses to go
forward, Ms. Coco installs the window treatments and is paid a fee based on the
particulars of each job. While Lowe' s provides Ms. Coco with the window treatments and
the details of the work to be done, Lowe's does not issue installation instructions, nor
does Lowe's coordinate the timing of the installation. Ms. Coco provides her own tools
such as a ladder, cordless drill, screwdriver, etc. Lowe's requires Ms. Coco to provide
proof of insurance for the truck she uses when working on these jobs, as well as
contractor' s insurance, general liability insurance, and fire and auto insurance. While Ms.
Coco works on an installation, Lowe' s also requires Ms. Coco to wear a shirt that reads
Lowe' s Independent Service Provider" and to put a sign in the yard that reads " Lowe' s
Installation in Progress."
Pertinent to this appeal, Ms. Coco could, at her discretion, engage an assistant for
the installations. While Lowe' s did not require Ms. Coco to give notice before she engaged
an assistant, it did require any assistant to pass a criminal background check and to wear
the same Lowe' s shirt as Ms. Coco during installations. Ms. Coco worked with several
such assistants off and on. She paid the costs associated with the criminal background
check and the purchase of a Lowe' s shirt for each assistant she worked with.
Prior to the accident from which this case arises, Ms. Coco sometimes asked her
daughter, Ms. Boudreaux, to work with her as her assistant. On these occasions, Ms.
Boudreaux was required to be present on the job site at the same time as her mother.
Once at the job site, Ms. Boudreaux' s tasks included opening the boxes of merchandise,
placing the window treatments in front of the appropriate window according to a diagram
provided by Lowe' s, and placing the empty merchandise boxes for discard as directed by
the customer. Ms. Boudreaux did not participate in the actual installation of the window
treatments and did not provide any materials or tools other than her own utility knife, or
box cutter." Ms. Boudreaux and Ms. Coco both testified that this work required no
specialized training, no supervision, and was temporary in nature. Ms. Boudreaux did not
work on a regular weekly or monthly basis.
we,
When Ms. Boudreaux was engaged by Ms. Coco to assist with a window treatment
installation, she was paid the rate of $ 10 per hour. Payment began at the time Ms.
Boudreaux arrived at the job site, or if Ms. Boudreaux rode with Ms. Coco, at the time
Ms. Coco picked her up for the job, until the end of the last job of the day. When they
worked on more than one job, Ms. Coco paid Ms. Boudreaux during travel time from one
job site to the next. Ms. Boudreaux was paid the same rate regardless of the quality and
efficiency of her work. Ms. Coco paid Ms. Boudreaux on Friday for any jobs completed
during the week. Ms. Coco did not withhold any taxes, and Ms. Boudreaux received an
IRS Form 1099 at the end of the year. Ms. Coco also testified that she did not complete
941 Employer's Quarterly Federal Tax forms in 2017, and she did not maintain workers'
compensation insurance for any employee in 2017. Ms. Coco did not provide any
employee benefits to Ms. Boudreaux, such as health insurance or retirement. Ms.
Boudreaux did not file for unemployment benefits or workers' compensation benefits as
a result of the accident. Ms. Boudreaux testified that she had no relationship with Lowe's
and was paid only by Ms. Coco.
On the day of the accident in question, Ms. Boudreaux had agreed to assist Ms.
Coco with four or five jobs. Ms. Coco picked Ms. Boudreaux up so that they could ride
together to the job sites. They had completed two or three jobs in Brusly and were on
their way to Central when the accident occurred. Ms. Coco and Ms. Boudreaux testified
that while they were traveling between jobs in Brusly to the jobs in Central, Ms.
Boudreaux was being paid $ 10 per hour. Ms. Boudreaux was in the front passenger seat
at the time of the accident. After the accident, Ms. Boudreaux accompanied Ms. Coco to
the remaining job sites, but did not assist her with the remaining jobs. Ms. Coco recalled
paying Ms. Boudreaux for the remainder of the day, but Ms. Boudreaux did not recall
being paid for the jobs she did not assist on. Ms. Boudreaux stated she would defer to
Ms. Coco as to whether she was paid for the remainder of the jobs, as Ms. Coco would
have record of that.
Based on the evidence submitted in support of and in opposition to the motion for
summary judgment, we now analyze the details of their working arrangement using the
factors prescribed in Hillman v. Comm -Care, Inc., 2001- 1140 ( La. 1/ 15/ 02), 805 So. 2d
10
1157,
1162, and Hickman v. Southern Pacific Transport Company, 262 La. 102,
262 So. 2d 385, 390- 91 ( 1972), to determine whether an employer-employee relationship
existed between Ms. Coco and Ms. Boudreaux to determine whether an employer-
employee relationship existed between Ms. Coco and Ms. Boudreaux. The first Hillman
factor considers the power of selection and engagement, and the third considers the
power of dismissal. 6 Notably, the right to terminate without cause, where no term of
employment is prescribed, is characteristic of an employer-employee relationship.
Hulbert v. Democratic State Central Committee of Louisiana, 2010- 1910 ( La. App.
1 Cir. 6/ 10/ 11), 68 So. 3d 667, 672, writ denied, 2011- 1520 ( La. 10/ 7/ 11), 71 So. 3d 316.
Relevant to these issues, it is clear that Ms. Coco had the power to select her assistants
and also the power to terminate those assistants without cause, as Ms. Coco specifically
testified that she could choose not to engage a particular assistant for a subsequent job
if she was dissatisfied with her prior work. Likewise, Ms. Boudreaux could accept or reject
the job at her own discretion.
Regarding the second Hillman factor, payment of wages, Ms. Coco set the $ 10
hourly rate and paid Ms. Boudreaux the same rate regardless of the quality or efficiency
of her work. With respect to the fourth Hillman factor, the power of control, Ms. Coco
and Ms. Boudreaux both testified that Ms. Coco provided a diagram which directed Ms.
Boudreaux as to where to place the window treatments, though they qualified these
statements by noting that Ms. Coco did not supervise or direct Ms. Boudreaux as to how
she opened the boxes of materials or moved them around.
We next consider the Hickman factors. Regarding the existence of a valid
contract, there is no requirement that said agreement be in writing; instead, it is sufficient
to present evidence that there was a meeting of the minds, and that a valid oral contract
was confected. O' Bannon v. Moriah Technologies, Inc., 2015- 1460 ( La. App. 1 Cir.
6 We note Ms. Boudreaux's argument that the trial court incorrectly applied the test for distinguishing
between an employee and an independent contractor employed in Hickman, instead of applying the more
recent test set forth in Hillman. However, the Louisiana Supreme Court in Bolden recently discussed the
issue and cited to both Hickman and Hillman. Bolden, --- So. 3d at ---, 2022 WL 262976, at * 6.
Accordingly, we find that this argument lacks merit.
11
6/ 3/ 16), 196 So. 3d 127, 135. Here, Ms. Coco and Ms. Boudreaux gave harmonious
descriptions of their working relationship and the obligations each owed the other.
The second and third Hickman factors 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 principal. Ellis, --- So. 3d at ---, 2021 WL
6329796, at * 5. In other words, to determine whether someone is an independent
contractor, one must look at his degree of control over the work. While the principal has
the ability to oversee the results of the contractor's work, the principal in no way
influences the manner in which the contractor does the work. Conversely, an employer
has a great amount of control over an employee's work, such as the nature of the task
and where it is to be performed. Roca v. Security National Properties -Louisiana
Limited Partnership, 2011- 1188 ( La. App. 1 Cir. 2/ 10/ 12), 102 So. 3d 778, 781, writ
denied, 2013- 0233 ( La. 4/ 1/ 13), 110 So. 3d 583. In this matter, as set forth above, Ms.
Coco directed Ms. Boudreaux to the job site and provided a diagram for placement of
materials, and Ms. Boudreaux placed the materials near the appropriate windows
according to that diagram. Although both Ms. Coco and Ms. Boudreaux testified that Ms.
Coco did not direct Ms. Boudreaux as to how to go about unpacking the materials and
moving them to their ultimate destination, Ms. Boudreaux' s task was ultimately subject
to Ms. Coco' s control by virtue of the diagram. The work did not involve specific piecework
which Ms. Boudreaux was free to complete by her own methods, nor was Ms. Boudreaux
given any choice as to the means by which she reached the result desired by Ms. Coco.
Further, Ms. Boudreaux had no independent business relative to the installation of
window treatments outside of the work she performed for Ms. Coco.
The fourth Hickman factor considers whether there was a specific price for the
overall undertaking. In this matter, Ms. Boudreaux was paid an hourly rate while working
at each jobsite, regardless of the quality and efficiency of her work, and while traveling
from one job site to the next. Thus, Ms. Boudreaux' s compensation was not tied to the
overall undertaking.
The fifth Hickman factor considers whether the duration of the work was for a
specific time and not subject to termination or discontinuance at the will of either side
12
without corresponding liability for breach. As explained in Hickman, the right to
terminate the contract between the parties, without incurring liability for breach of
contract, where no term of employment is prescribed, is characteristic of the employer-
employee relationship. This right is at the same time antagonistic to the independent
contractor relationship. Hickman, 262 So. 2d at 391. Here, Ms. Coco and Ms. Boudreaux
both testified that Ms. Coco offered work to Ms. Boudreaux on a job -by -job basis. Thus,
there was no specific term of the duration of Ms. Boudreaux' s employment. Further, Ms.
Coco could cease offering Ms. Boudreaux work at any time, and Ms. Boudreaux could
refuse work at any time, without incurring any liability for breach of contract.
Again, the most important inquiry to be made in determining the relationship
between the parties is whether the principal reserved the right to control the work.' Ellis,
So. 3d at ---, 2021 WL 6329796 at * 5. Having thoroughly reviewed the record in its
entirety, we find that the evidence presented establishes that Ms. Boudreaux' s work was
not of an independent nature, but was subject to Ms. Coco' s right to supervise and control
the work done by Ms. Boudreaux. Ms. Boudreaux was engaged to open boxes of materials
and place them near certain windows according to a specific diagram. Thus, Ms.
Boudreaux was hired to complete a very specific task, and due to the specificity of the
task itself, she had no discretion or control regarding how the work assigned to her was
done. Thus, the uncontested facts establish that Ms. Boudreaux was Ms. Coco' s
employee.
Progressive' s policy excludes coverage for bodily injury sustained by an employee
of the insured, arising out of or within the course of the employee' s employment. Here,
Ms. Coco regularly paid Ms. Boudreaux an hourly rate for the time spent traveling to job
sites, and Ms. Boudreaux was injured during such travel. Thus, the undisputed facts
Ms. Coco testified that she considered her assistants contractors and not employees because they were
neither full-time nor part-time, but rather, worked on a job -by -job basis, when they wanted to work. Ms.
Boudreaux confirmed that Ms. Coco referred to her practice of working with assistants as " subcontract[ ing]
out part of the job," and testified that she had never identified Ms. Coco as her employer, because "[ t] hat
was just someone I did contract work for; she wasn' t my employer." However, although Ms. Coco and Ms.
Boudreaux may have considered Ms. Boudreaux to be an independent contractor rather an employee, this
designation is not binding or controlling on the rights of third persons. The rights of third persons are
controlled by the substance, rather than the title, of the contractual relationship between the parties.
Hughes v. Goodreau, 2001- 2107 ( La. App. 1 Cir. 12/ 31/ 02), 836 So. 2d 649, 659, writ denied, 2003- 0232
La. 4/ 21/ 03), 841 So. 2d 793.
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establish that Ms. Boudreaux's injuries unquestionably arose out of or within the course
of her work.
Based on the evidence presented, Progressive made a prima facie showing that its
motion should be granted. The burden then shifted to Ms. Boudreaux to produce factual
support sufficient to establish the existence of a genuine issue of material fact or that
Progressive is not entitled to judgment as a matter of law. As noted above, Ms. Boudreaux
supported her opposition to Progressive' s motion for summary judgment with the same
evidence Progressive offered in support of its motion — Ms. Boudreaux' s deposition and
the deposition of Ms. Coco. These transcripts do not provide factual support sufficient to
establish the existence of a genuine issue of material fact, or that Progressive is not
entitled to judgment as a matter of law. To the contrary, they establish that there are no
factual disputes remaining to be settled. When the undisputed facts are considered within
the terms of the policy, it is clear that there is no reasonable interpretation of the policy
under which coverage could be afforded. See Kirby, 208 So. 3d at 937. Therefore, based
on our de novo review, we find that Progressive is entitled to judgment as a matter of
law. The employer's liability exclusion applies and operates to bar Ms. Boudreaux's claims
against Progressive, and summary judgment on this basis was proper.
CONCLUSION
For the foregoing reasons, we affirm the June 18, 2021 judgment of the trial court
granting summary judgment in favor of Progressive Paloverde Insurance Company and
dismissing Brady Boudreaux' s claims. Costs of this appeal are assessed against Ms.
Boudreaux.
AFFIRMED.
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