Opinion
2022 CA 1158
04-14-2023
Chelsie JEANDRON v. Dr. Christopher CENAC, Jr. and ABC Insurance Company
Barry Alwin Roach, Michael H. Schwartzberg, Lake Charles, LA, Counsel for Appellant/Plaintiff—Chelsie Jeandron Douglas Robert Holmes, New Orleans, LA, Counsel for Appellees/Defendants—Dr. Christopher Cenac, Jr., Rancho Medico, L.L.C., AIG Property Casualty Company and MESA Underwriters Specialty Insurance Company
Barry Alwin Roach, Michael H. Schwartzberg, Lake Charles, LA, Counsel for Appellant/Plaintiff—Chelsie Jeandron
Douglas Robert Holmes, New Orleans, LA, Counsel for Appellees/Defendants—Dr. Christopher Cenac, Jr., Rancho Medico, L.L.C., AIG Property Casualty Company and MESA Underwriters Specialty Insurance Company
Before: Welch, Penzato, and Lanier, JJ.
WELCH, J. In this action for damages, the plaintiff, Chelsie Jeandron, appeals a trial court judgment granting a motion for summary judgment filed by the defendant, Dr. Christopher Cenac, Jr., and dismissing her claims against Dr. Cenac. Based on our de novo review, we find that Dr. Cenac failed to sufficiently support his motion for summary judgment by establishing the material facts; therefore, we reverse the judgment of the trial court and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
On July 2, 2019, Ms. Jeandron commenced this proceeding seeking damages that resulted from an accident that occurred on November 15, 2018, which caused the death of her father, Randy Jeandron. Named as defendants were Dr. Cenac, Rancho Medico, L.L.C. ("Rancho Medico"), and their liability insurers, AIG Property Casualty Company and MESA Underwriters Specialty Insurance Company.
Ms. Jeandron filed a supplemental and amending petition on November 14, 2019.
According to the allegations of Ms. Jeandron's petition, Dr. Cenac had engaged Mr. Jeandron and two other workers to transport a barge, which was owned or chartered by Dr. Cenac and/or Rancho Medico and was loaded with large wooden pilings for a construction project, to the property of a remote camp owned by Dr. Cenac and/or Rancho Medico. Ms. Jeandron alleged that Dr. Cenac and/or Rancho Medico provided equipment for the task; however, she claimed that the crane on the barge was not a proper and sufficiently heavy piece of equipment to safely offload the pilings, and further, that the excavator on shore was not operable. Therefore, Mr. Jeandron and the two other workers used equipment, ropes, and chains in a "block and pulley configuration" to offload the pilings. Ms. Jeandron further alleged that while Mr. Jeandon and another worker were offloading the pilings from the barge onto the property, the "chain and tackle" attachment to the pulley system suddenly and without warning "snapped and broke," causing the block and tackle to strike Mr. Jeandron in the head, resulting in his death. Ms. Jeandron claimed that the death of her father was due to the negligence of Dr. Cenac and/or Rancho Medico, and that the defendants were liable for her damages.
In response to Ms. Jeandron's petition, the defendants filed an answer generally denying the allegations of the petition and any liability to the plaintiff and asserting numerous affirmative defenses, including that Ms. Jeandron's "exclusive remedy [was] under the Louisiana Worker’ Compensation laws."
On April 5, 2021, Dr. Cenac filed a motion for summary judgment seeking the dismissal of the plaintiff's claims. Therein, Dr. Cenac claimed that there was no genuine issue of material fact that he did not own the barge or the property upon which Mr. Jeandron was working at the time of his accidental death. Dr. Cenac also claimed that there was no genuine issue of material fact that, at the time of Mr. Jeandron's death, Mr. Jeandron was acting in the course and scope of his employment with Houma Orthopedic Clinic, AMC d/b/a Gulf Coast Orthopedics ("Houma Orthopedics"), that Houma Orthopedics was owned and operated, in part, by Dr. Cenac, and thus, Ms. Jeandron's exclusive remedy against Dr. Cenac for her father's death was workers’ compensation. See La. R.S. 23:1032 (generally providing that, except for intentional acts, the Louisiana Workers’ Compensation Law is the exclusive remedy for an employee or his dependents against his employer or any principal or officer, director, stockholder, partner or employee of the employer on account of an injury by accident or compensable sickness or disease arising out of an in the course and scope of his employment). Dr. Cenac further claimed that there was no genuine issue of material fact that Louisiana Workers’ Compensation Corporation ("LWCC") had paid workers’ compensation death benefits to Ms. Jeandron after determining that Mr. Jeandron was in the course and scope of his employment with Houma Orthopedics at the time of his accidental death. Therefore, Dr. Cenac maintained that he was entitled to summary judgment dismissing Ms. Jeandron's claims against him.
In opposition to Dr. Cenac's motion for summary judgment, Ms. Jeandron admitted there was no genuine issue of material fact that Dr. Cenac did not own the property or barge upon which Mr. Jeandron was working at the time of his accidental death. She also admitted there was no genuine issue of material fact that barge was owned by Rancho Medico, that Rancho Medico's sole member and owner was Dr. Cenac, and that the land upon which the barge was anchored to at the time of the accident was owned by Apache Louisiana Minerals, LLC and leased to Rancho Medico. Ms. Jeandron further admitted there was no genuine issue of material fact that she was paid death benefits by LWCC and that Dr. Cenac was a partner and owner of Houma Orthopedics at the time of Mr. Jeandron's accidental death. However, Ms. Jeandron argued that summary judgment in favor of Dr. Cenac based on the affirmative defense of tort immunity pursuant to La. R.S. 23:1032 was not appropriate because there were genuine issues of material fact as to whether Mr. Jeandron was in the course and scope of his employment with Houma Orthopedics at the time of the accident and whether Dr. Cenac was acting in his capacity as an individual, as the owner of Rancho Medico, or as an owner of Houma Orthopedics when he engaged Mr. Jeandron to transport the barge and its load to the camp.
After a hearing, the trial court took the matter under advisement, and thereafter, rendered judgment granting the motion for summary judgment. A judgment in accordance with the trial court's ruling, granting Dr. Cenac's motion for summary judgment and dismissing all claims against Dr. Cenac was signed on July 22, 2022. From this judgment, the plaintiff has appealed. LAW AND DISCUSSION
We note that the trial court initially granted the motion for summary judgment pursuant to a judgment signed on June 14, 2022, and thus, the July 22, 2022 judgment on appeal herein was a subsequent judgment on the matter. Ordinarily, a subsequent judgment identical in substance to an earlier judgment is considered superfluous, unnecessary, and invalid. St. Pierre v. St. Pierre , 2008-2475 (La. App. 1st Cir. 2/12/10), 35 So.3d 369, 370 n. 1, writ not considered, 2010-0587 (La. 3/17/10), 29 So.3d 1243. Notably, however, the original June 14, 2022 judgment did not contain proper decretal language disposing of or dismissing Ms. Jeandron's claims; therefore, it was not a valid, final judgment. See La. C.C.P. art. 1918(A). As such, the trial court properly signed the subsequent July 22, 2022 judgment to correct this deficiency in the decretal language. See La. C.C.P. art. 1951. '
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. La. C.C.P. art. 966(A)(3). A "genuine" issue is a triable issue, which means that an issue is genuine if reasonable persons could disagree; if on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for trial on that issue. Simon v. CenturyLink, Inc., 2021-0412 (La. App. 1st Cir. 12/22/21), 340 So.3d 88, 90. A fact is "material" when its existence or nonexistence may be essential to the cause of action under the applicable theory of recovery. Id.
Louisiana Code of Civil Procedure article 966(D)(1) places the burden of proof on the party filing a motion for summary judgment. When the party filing the motion for summary judgment will bear the burden of proof at trial, he must support his motion for summary judgment with credible evidence that would entitle him to a directed verdict if not controverted at trial. Aucoin v. Larpenter, 2020-0792 (La. App. 1st Cir. 4/16/21), 324 So.3d 626, 632, writ denied, 2021-00688 (La. 9/27/21), 324 So.3d 87. The mover can meet this burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). See also Mercadel v. State Through Department of Public Safety and Corrections, 2018-0415 (La. App. 1st Cir. 5/15/19), 2019 WL 2234404 *2. Other documents that are not included in the exclusive list set forth in La. C.C.P. art. 966(A)(4) are not permitted unless they are properly authenticated by an affidavit or deposition to which they are attached. Successions of Millet, 2021-0355 (La. App. 1st Cir. 12/22/21), 340 So.3d 252, 257 ; see also La. C.C.P. art. 966, comments—2015, comment (c). The mover's supporting documents must prove the essential facts necessary to carry the mover's burden. Successions of Millet, 340 So.3d at 257 ; Mercadel, 2019 WL 2234404 at *2. This Court has held that in deciding a motion for summary judgment, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. Successions of Millet, 340 So.3d at 257 ; Mercadel, 2019 WL 2234404 at *2, citing Crockerham v. Louisiana Medical Mutual Insurance Company, 2017-1590 (La. App. 1st Cir. 6/21/18), 255 So.3d 604, 608, and Dimattia v. Jackson Nat. Life Ins. Co., 2004-1936 (La. App. 1st Cir. 9/23/05), 923 So.2d 126, 129. Once the mover properly establishes the material facts by its supporting documents, the burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1) ; see also Aucoin, 324 So.3d at 632 ; Mercadel, 2019 WL 2234404 at *3.
However, if the moving party 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 must only 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. La. C.C.P. art. 966(D)(1) ; see also La. C.C.P. art. 966, comments—2015, comment (j).
However, a memorandum is not a pleading or evidence, but a document that can be used to advance the mover's argument in support or opposition to a motion for summary judgment. See La. C.C.P. art. 966, comments—2015, comment (c).
Louisiana Code of Civil Procedure article 966(D)(2) further provides that the court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. However, no additional documents may be filed with a reply memorandum. La. C.C.P. art. 966(B)(3).
In determining whether summary judgment is appropriate, this court reviews the evidence de novo using the same criteria governing the trial court's determination of whether summary judgment is appropriate. Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 2017-1088 (La. App. 1st Cir. 3/15/18), 244 So.3d 441, 444, writ denied, 2018-0583 (La. 6/1/18), 243 So.3d 1062. Thus, an appellate court asks the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Simon, 340 So.3d at 91. Because it is the applicable substantive law that determines materiality, whether a particular issue in dispute is material can be seen only in light of the substantive law applicable to the case. Id. Louisiana Revised Statutes 23:1031(A) provides that "[i]f an employee ... receives personal injury by accident arising out of and in the course and scope of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated." Furthermore, La. R.S. 23:1032 provides, in pertinent part:
A. (1)(a) 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, ..., 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, ....
(b) 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.
(2) For purposes of this Section, the word "principal" shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
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; and
(2) To the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.
Immunity under La. R.S. 23:1023 is an affirmative defense, and the party asserting the defense bears the burden of proving entitlement to that immunity. See Mundy v. Department of Health and Human Resources, 593 So.2d 346, 349 (La. 1992).
In this case, Dr. Cenac claimed in his motion for summary judgment that there was no genuine issue of material fact that, at the time of Mr. Jeandron's accidental death, he was acting in the course and scope of his employment with Houma Orthopedics; that Dr. Cenac was an owner, in part, of Houma Orthopedics; and thus, pursuant to La. R.S. 23:1032, Ms. Jeandron's exclusive remedy against Dr. Cenac for the accidental death of her father was workers’ compensation. Since Dr. Cenac was both the mover on the motion for summary judgment and had the burden of proving his entitlement to tort immunity under La. R.S. 23:1032, he had the initial burden of establishing these material facts by submitting documentary evidence in accordance with La. C.C.P. art. 966(A)(4).
As previously noted, Dr. Cenac also claimed, and Ms. Jeandron subsequently admitted, that there were no genuine issues of material fact as to the ownership of the land or the barge on which Mr. Jeandron was working at the time of his accidental death, that Dr. Cenac was Rancho Medico's sole member and owner, and that Ms. Jeandron she was paid workers’ compensation death benefits by LWCC. Therefore, we need not address those material facts or issues.
Dr. Cenac, in support of his motion for summary judgment, relied on a copy of a letter dated December 18, 2018 from "Ann Hotard" of the "Claims Department" of an unidentified entity to Houma Orthopedics regarding Mr. Jeandron and the accident on November 15, 2018, which indicated that a check for reimbursement of Mr. Jeandron's funeral expenses was enclosed and that a check would be issued to Ms. Jeandron that week ("the letter"). Dr. Cenac also relied on a copy of a negotiated check dated December 19, 2018 from LWCC to Ms. Jeandron in the amount of $75,000.00 ("the check"). Notably, these documents—the letter and check—do not fall within any of the categories set forth in La. C.C.P. art. 966(A)(4) as proper supporting documents to be offered in support of or in opposition to a motion for summary judgment nor were those documents authenticated or attached to an affidavit or deposition; however, the plaintiff did not object to this document, and thus, those documents must be considered.
Dr. Cenac also relied on copies of an act of donation and two resolutions pertaining to the donation of a pontoon barge from Waterproof Trust to Rancho Medico and a copy of a hunting lease for a particularly described piece of immovable property between Apache Louisiana Minerals LLC and Rancho Medico. However, those documents, which likewise do not fall within any of the categories of proper documents set forth in La. C.C.P. art. 966(A)(4), were not attached to an affidavit or deposition, and were not objected to by the plaintiff, concern the material facts of ownership of the land and the barge on which Mr. Jeandron was working at the time of his death and which Ms. Jeandron admitted were not genuinely in dispute. See footnote 5. Therefore, those documents are not pertinent to the issue on appeal herein.
Although we are required to consider the letter and the check in reviewing Dr. Cenac's motion for summary judgment, we find that those two documents do not establish the material facts that Mr. Jeandron was in the course and scope of his employment with Houma Orthopedics at the time of the accident resulting in his death and/or that Dr. Cenac was acting in his capacity as an owner of Houma Orthopedics when he engaged Mr. Jeandron to transport the barge and its load to the camp. Thus, based on our de novo review of the documents offered by Dr. Cenac in support of his motion for summary judgment, we find that he failed to carry his initial burden of establishing the material facts; consequently, Dr. Cenac was not was entitled to summary judgment dismissing Ms. Jeandron's claims. Since Dr. Cenac failed to meet his initial burden of proof on the motion for summary judgment, the burden never shifted to Ms. Jeandron to show support for her claim or that there was a genuine issue for trial. See La. C.C.P. art. 966(D)(1). Accordingly, we find that the trial court improperly granted Dr. Cenac's motion for summary judgment and the trial court's judgment is reversed.
We recognize that Ms. Jeandron offered the deposition testimony of Dr. Cenac in opposition to the motion for summary judgment. However, in determining whether the mover has met his initial burden on the motion for summary judgment of establishing the material facts, the mover cannot rely on documents offered by the non-mover in opposition to the motion for summary judgment. See Successions of Millet , 340 So.3d at 257 ; Mercadel , 2019 WL 2234404 at *2 (providing that in deciding or reviewing a motion for summary judgment, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all factual issues and that the mover's supporting documents must prove the essential facts necessary to carry the mover's burden). Therefore, in reviewing Dr. Cenac's motion for summary judgment, we cannot consider the deposition of Dr. Cenac offered by Ms. Jeandron in opposition to the motion in determining whether Dr. Cenac met his initial burden on the motion of establishing the material facts.
We also recognize that Dr. Cenac attached a copy of his deposition to his reply memorandum. However, no additional documents may be filed with a reply memorandum. See La. C.C.P. art 966(B)(3). Therefore, we are likewise precluded from considering same in reviewing Dr. Cenac's motion for summary judgment. See Successions of Millet , 340 So.3d at 258-259 ; Tate v. Kristina's Transportation, LLC , 2018-0955 (La. App. 1st Cir. 12/21/18), 2018 WL 6716972 *4 ; see also Adolph v. Lighthouse Property Insurance Corporation , 2016-1275 (La. App. 1st Cir. 9/8/17), 227 So.3d 316, 320 n.6.
CONCLUSION
For all of the above and foregoing reasons, the July 22, 2022 judgment of the trial court granting Dr. Christopher Cenac, Jr.’s motion for summary judgment and dismissing Chelsie Jeandron's claims against him is reversed, and this matter is remanded for further proceedings. All costs of this appeal are assessed to the defendant/appellee, Dr. Christopher Cenac, Jr.