Opinion
NO. 2012 CA 1647
08-05-2013
JESSICA RODAS v. EXXON JUBILEE, L.L.C.
Russell B. Ramsey New Orleans, Louisiana Attorney for Plaintiff/Appellant, Jessica Rodas Christopher A. D'Amour New Orleans, Louisiana Attorney for Defendant/Appellee Exxon Jubilee, L.L.C.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
32nd Judicial District Court,
In and for the Parish of Terrebonne,
State of Louisiana
Civil Docket No. 163,688
The Honorable David W. Arceneaux, Judge Presiding
Russell B. Ramsey
New Orleans, Louisiana
Attorney for Plaintiff/Appellant,
Jessica Rodas
Christopher A. D'Amour
New Orleans, Louisiana
Attorney for Defendant/Appellee
Exxon Jubilee, L.L.C.
BEFORE: PARRO, WELCH, AND DRAKE, JJ.
DRAKE , J.
Plaintiff/Appellant, Jessica Rodas, appeals a final judgment of the district court that granted summary judgment in favor of Defendant/Appellee, Exxon Jubilee, L.L.C. ("Exxon"), and dismissed her claims, with prejudice. Ms. Rodas also appeals the denial of a motion for new trial. Additionally, we note that Ms. Rodas has filed a motion to remand, and Exxon has filed a motion to file extrinsic evidence. For the following reasons, we reverse the judgment of the district court granting summary judgment in favor of Exxon, and we reverse the judgment of the district court denying Ms. Rodas's motion for new trial, and we further deny the motion to remand and the motion to file extrinsic evidence.
FACTS AND PROCEDURAL HISTORY
This tort suit began as a claim for workers' compensation benefits. Ms. Rodas was employed as a cashier by Chevron Jubilee, L.L.C. ("Chevron"), which is an automobile service station with an attached convenience store in Houma, Louisiana. The owners of Chevron also own and operate Exxon, a separate and distinct automobile service station/convenience store located in Schriever, Louisiana. Ms. Rodas alleges that on May 15, 2010, she suffered an injury at the Exxon service station, when she fell off of a stack of milk crates upon which she was seated. Ms. Rodas claims that her employer, Chevron, temporarily assigned her to work as a cashier at the Exxon gas station/convenience store and paid her in cash for the work she allegedly performed at Exxon on the day her accident occurred.
Following her accident and injury, Ms. Rodas filed a claim for workers' compensation benefits against Chevron. Chevron contested the claim, arguing that Ms. Rodas was not working for Chevron when she suffered her injury. Chevron argued that Ms. Rodas was not working for Exxon either, but was merely visiting the Exxon store location at the time she suffered her injury. Following a trial on January 10, 2011, the workers' compensation judge ("WCJ") dismissed Ms. Rodas's claim for workers' compensation benefits against Chevron, with prejudice, ruling that she was not in the course and scope of employment at the time of her accident.
Although it does not form a part of the record before us, we note the WCJ reopened Ms. Rodas's workers' compensation case against Chevron and amended its judgment to state that Exxon was a party to the workers' compensation case and was included in its ruling. See Tranum v. Hebert, 581 So. 2d 1023, 1027 (La. App. 1st Cir.), writ denied, 584 So. 2d 1169 (La. 1991).
Following the dismissal with prejudice of her workers' compensation claim against Chevron, Ms. Rodas filed the instant tort suit against Exxon in district court, arguing that she was entitled to recover damages for the injures she suffered at Exxon. Exxon filed a motion for summary judgment, arguing that Ms. Rodas's tort suit was barred by the Louisiana Workers' Compensation Act, as she was allegedly in the course and scope of employment with Exxon at the time her accident occurred. Following a hearing, the district court granted Exxon's motion for summary judgment, ruling that Ms. Rodas was in the course and scope of employment with Exxon at the time her injury occurred and that her exclusive remedy was a claim for workers' compensation benefits. Following the grant of summary judgment in favor of Exxon, Ms. Rodas filed a motion for a new trial, which the district court denied. Ms. Rodas now appeals from the summary judgment granted in favor of Exxon and contests the denial of her motion for a new trial.
LAW AND DISCUSSION
A. Summary Judgment
Ms. Rodas argues that the district court erred in granting summary judgment in favor of Exxon because she avers there are genuine issues of material fact regarding whether or not she was in the course and scope of her employment with Exxon at the time she suffered her injury. Ms. Rodas argues that the district court erred in failing to determine whether a borrowed employee relationship existed between Ms. Rodas and Exxon. If Chevron is Ms. Rodas's general employer and Exxon is Ms. Rodas's borrowing employer, the plaintiff argues the employers are jointly liable for her workers' compensation benefits. The plaintiff contends this joint liability precludes summary judgment in favor of Exxon, since it is illogical for Ms. Rodas to be in the course and scope of employment for one employer, but not the other, at the time of injury. Thus, Ms. Rodas argues that if her suit is not a claim for workers' compensation benefits against her general employer, Chevron, then her suit must be a tort case against Exxon Jubilee.
At the hearing on the motion for summary judgment, Exxon argued that judgment should be granted in its favor because Ms. Rodas testified that she was working for Exxon at the time of the incident, which would bar all tort claims. We note, however, that Exxon has filed a notice of intent not to oppose Ms. Rodas's appeal, stating that its position is that Ms. Rodas was not working at Exxon at the time of the incident.
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no issue of material fact in dispute. Omega Const. v. Thornco, Inc., 07-1806 (La. App. 1 Cir. 8/21/08), 994 So. 2d 65, 67. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. See La. Code Civ. Proc. art. 966B. Summary judgment is favored and "is designed to secure the just, speedy, and inexpensive determination of every action." La. Code Civ. Proc. art. 966A(2). The burden of proof remains with the movant; however, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential element's of the adverse party's claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. Code Civ. Proc. art. 966C(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Omega Const., 994 So. 2d at 67. B. Borrowed Employee
Under the Louisiana Workers' Compensation Act, an employee injured in an accident while in the course and scope of employment is generally limited to the recovery of workers' compensation benefits as his exclusive remedy against his employer. See La. R.S. 23:1032A(1)(a). Louisiana Revised Statutes 23:1031C provides:
In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a "special employer", and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer", shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive
remedy protections provided in R.S. 23:1032. (Emphasis added.)
A single individual may be the "general" employee of one employer and a "special" employee of another. Omega Const, 994 So. 2d at 68. The issue of whether a borrowed servant relationship exists is a matter of law for the court to determine. There is no fixed test, nor is the existence of a contract or any other single factor determinative. Id. In Billeaud v. Poledore, 603 So. 2d 754, 756 (La. App. 1st Cir.), writ denied, 608 So. 2d 176 (La. 1992), this court set forth the following factors that should be considered in determining the existence of a borrowed employee relationship: (1) who has the right of control over the employee; (2) who selected the employee; (3) who paid the employee's wages; (4) who has the right to fire the employee; (5) who furnished the tools and the place to perform the work; (6) length of employment; (7) which employer's work was being performed at the time in question; (8) whether there was an agreement, either implicit or explicit, between the borrowing and lending employers; (9) acquiescence by the employee in the new work situation; and (10) whether the original employer terminated his relationship with or relinquished his control over the employee. See Omega Const., 994 So. 2d at 68; See also Griffin v. Wickes Lumber Co., 02-0294 (La. App. 1 Cir. 12/20/02), 840 So. 2d 591, 596, writ denied, 03-1338 (La. 9/19/03), 853 So. 2d 640.
The WCJ found that Ms. Rodas was not in the course and scope of her employment with Chevron at the time of her accident, and thus dismissed her claim for workers' compensation benefits. Ms. Rodas then filed the instant action in tort against Exxon, which has a policy of comprehensive general liability insurance. In spite of the ruling of the WCJ, Exxon's attorneys filed a motion for summary judgment, arguing that Ms. Rodas was in the course and scope of her employment with Exxon. In support of its motion for summary judgment, Exxon introduced at trial: (1) a copy of Ms. Rodas's petition for damages; (2) excerpts from a November 2, 2010 deposition of Ms. Rodas wherein she stated that she was working at Exxon at the time her injury occurred; and (3) the judgment of the WCJ dismissing Ms. Rodas's workers' compensation claim, with prejudice, that lists only Chevron as a defendant. The district court found that the judgment of the WCJ was consistent with Ms. Rodas's testimony, in that she testified she was working for Exxon at the time of her accident. The district court granted summary judgment in favor of Exxon on the basis that Ms. Rodas was within the course and scope of her employment with Exxon Jubilee at the time her injury occurred.
In her brief, Ms. Rodas argues that Exxon formally joined Chevron and appeared at the trial of her workers' compensation claim. However, appellate briefs are not part of the record on appeal, and facts referenced therein, but not contained in the record, cannot be considered by this court. See Tranum v. Hebert, 581 So. 2d at 1027.
We find that there are genuine issues of material fact as to whether Ms. Rodas was in the course and scope of employment with Exxon on the day her accident occurred, based on the evidence presented by Exxon in support of its motion for summary judgment. Besides her deposition testimony, which was given prior to the trial of her workers' compensation claim, Exxon submitted no other evidence regarding Ms. Rodas's status as an employee of Exxon. There are no pleadings, answers to interrogatories, admissions, or affidavits from any owner, manager, or employee of Exxon that support Exxon's contention that Ms. Rodas was hired, directed to be present, and paid for work she allegedly performed at Exxon on the day of her accident.
Exxon failed to support its argument to this court that Ms. Rodas was either a principal or borrowed employee of Exxon. Based on our review of the record in this matter, we hold there are genuine issues of material fact as to whether Ms. Rodas was in the course and scope of her employment with Exxon on the day her accident occurred. Therefore, the summary judgment rendered by the district court in favor of Exxon is reversed.
DECREE
The summary judgment rendered by the district court in favor of Defendant/Appellee, Exxon Jubilee, L.L.C, is hereby reversed, and the case is remanded to the district court for further proceedings consistent with this opinion. Considering the foregoing, the judgment of the district court denying the motion for new trial is also reversed. The motion to remand filed by Plaintiff/Appellant, Jessica Rodas is denied as moot. The motion to file extrinsic evidence filed by Defendant/Appellee, Exxon Jubilee, L.L.C is denied. All costs of this appeal are cast to Defendant/Appellee, Exxon Jubilee, L.L.C.
Because we have concluded that the trial court erred in granting the defendant's motion for summary judgment, we must likewise conclude that the trial court's judgment was contrary to the law and evidence and that a new trial was warranted. See La. C.C.P. art. 1972(1).
Given our ruling herein, we find that motion to remand is moot. See Louisiana State Bd. of Nursing v. Gautreaux, 09-1758 (La. App. 1 Cir. 6/11/10), 39 So. 3d 806, 811.
The motion to file extrinsic evidence seeks to have this court consider exhibits that are not part of the record on appeal herein. We are a court of record and may neither review evidence that is not in the appellate record nor receive new evidence, Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983 So. 2d 84, 88. Thus, we cannot review this evidence and deny the motion.
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REVERSED AND REMANDED. MOTION TO REMAND DENIED AS MOOT, AND MOTION TO FILE EXTRINSIC EVIDENCE DENIED.