Jerome Michael Ellender VS Neff Rentals, Inc., ABC Insurance Company, David A. Levingston and State Farm Mutual Automobile Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 2005 JEROME MICHAEL ELLENDER VERSUS NEFF RENTAL INC ABC INSURANCE COMPANY DAVID A LEVINGSTON AND Judgment Rendered JUN 1 5 Z007 Appealed from the Thirty second Judicial District Court in and for the Parish of Terrebonne State of Louisiana Docket Number 144 357 Honorable Randall L Bethancourt Judge Michael J Samanie Counsel for Plaintiff Appellee Stephen S Stipe1covich Jerome Michael Ellender Houma LA Robert I Siegel Counsel for Defendant Daniel G Rauh New Orleans LA John M Counsel for Defendant Crosby Metaitie LA David A BEFORE 1r 1 Appellant Neff Rental Inc yr l o Appellee Levingston PARRO GUIDRY AND McCLENDON JJ r1 C A lRC4 t GUIDRY J Defendant that its finding within the in an Neff Rental employee and course Inc and scope of his employment the record several months after the was For the granted Levingston the time he at one pleading and foregoing reasons motion for that follow supplement the record and affirm the partial two we a acting was was Neff Rental also has filed supplement the appellate record with judgment partial summary judgment a defendant David co automobile accident appeals involved motion to orders filed into partial summary deny the motion to summary judgment FACTUAL AND PROCEDURAL HISTORY In 2005 Mr Levingston with Neff Rental His cities Because of his deal Neff Rental for the use of his position paid Mr Mr a On was or to required to to travel a great compensate him on on in performing cell his job duties Neff Mr phone behalf of Neff Rental via cell to Mr his cell Levingston Levingston phone while Neff Rental phone while driving nor never did it have Mr Levingston was driving to lunch when he by another Neff Rental employee seeking certain pricing information from him road manager procedures forbidding such actions January 6 2005 called was 600 per month telephone According prohibited him from talking any policies regional sales purchase all his fuel cellular regularly conducted business eating lunch to Levingston provided him with or a several offices in various Louisiana Levingston Levingston as personal vehicle in performing his job duties and provided To further aid Mr driving employed territory included him with a company credit card Rental was When Mr Levingston diverted his attention from the search for the documentation in order collided into the rear of an automobile 2 to answer the being operated by question he Dr Jerome Ellender Dr Ellender filed suit their against Mr Levingston and Neff Rental and respective insurers seeking damages for the injuries he sustained result of the accident April judgment seeking summary causing In 2006 Dr Ellender filed Following a motion for establish Mr to Levingston Levingston acting the accident and that Mr scope of his a was as a partial sole fault in s in the course and employment thereby rendering Neff Rental vicariously liable in hearing finding Mr further finding that he Levingston May 2006 the trial to be 100 percent was court rendered a judgment fault for the accident at acting within the 1 and and scope of his course emploYlnent with Neff Rental when the accident occurred At the request of Neff Rental immediate the trial court the designated judgment as final for purposes of appeal This appeal by Neff Rental followed DISCUSSION On appeal Neff Rental asserts that the improperly designated motion to final On supplement the record Rental stated that the on as filed the a summary judgment buttress its assertion original plaintiff record with the pleading and orders a Therein Neff Dr Ellender had committed suicide surviving bystander claims was 2007 Neff Rental filed spouse and children had since was Dr Ellender sustained in the accident and death survival and I 7 supplemental petition claiming that the suicide injuries these February to November 3 2006 and that his partial Neff Rental substantiating newly added claims Neff Rental argues that the direct result of asserting wrongful sought to supplement the these facts liability2 Considering is still an issue portion of the judgment finding Mr Levingston to be 100 percent at fault in causing the accident was s sole assignment of error 2 the issue of liability as to the cause ofthe accident is no longer before the court we agree that Although the issue of liability with respect to damages is still a viable issue See Dumas v State ex reI Deot of The not included in Neff Rental Culture Recreation TOUlism 2002 0563 La 02 15 10 3 828 2d So 530 be tried to and therefore purposes of immediate Initially we the partial that the note pleading judgment and orders was have no trial court Mr Levingston Rental to at ie bearing Mr on the issues that Levingston was in the fault in s the time the accident occurred be added to were were given the supplement it is obvious to actually adjudicated by the causing the accident and whether and scope of his course sought rendered Moreover allegations made by Neff Rental in its motion they final for not appeal filed after the partial summary that is judgment summary employment with Neff Accordingly we deny the motion supplement Even judgment were we to was articulate its reviewing grant the motion properly designated patiicular comi may 13 14 the issues of for reasons final See R I La 3 2 05 894 So 2d 1113 are derivative a Mr Levingston was thereby rendering merit in Levingston in the course Neff Rental Neff Rental s s fault in they are to be proven 4 those at trial clearly distinct from liable employment Accordingly argument that the certification it requested was improper claims causing the accident and whether and scope of his vicariously new While the address additional types of damages allegedly caused by the accident that remain the root issues ofMr It is well settled that adds matter Thus a Rosenblum 2004 v 1122 or final as justified if its propriety is often bifurcated survival action wrongful death and bystander claims trial court fails to judgment a Inc Messinger liability and damages are When certifying subsequently filed pleading in the instant claims either would nonetheless find that the still find the certification apparent from the record 1664 pp as we at the time we find no specifically Neff Rental argues that the trial court elTed in Alternatively that Mr Levingston was acting the time the accident occulTed The art C C principle 2320 in the We of vicarious which employer an in this liability provides in part exercise of the functions in which m by their case and asters servants and Jones 2000 2799 p 4 La employers s course are in the overseers Under LSA C C employee an only if the injUling employee is acting within the employment Spears at is derived from LSA they are employed be held liable for can employment respectfully disagree answerable for the damage occasioned 2320 and scope of his course ruling art tortious conduct and scope of his 15 App 1 Cir 2 02 807 So 2d 1182 1185 writs denied 2002 0663 and 2002 0767 La 5 3 02 815 v So 2d 106 and 826 Generally liability including rooted 3 2 was occUlTed premises consider four factors when assessmg courts whether the tOliious reasonably incidental See LeBrane v its on 5 21 96 own Lewis 292 merits was primarily employment performance of employment duties during working hours and necessary that each factor is decided to 1 act 4 OCCUlTed 2d So Baumeister the employer v and each case Plunkett s It is must case 95 2270 not be p 4 La 673 So 2d 994 997 employee s causation to attributable tortious conduct his to the determinative the closely connected was so employment duties question is whether the as to employer s business be as regarded interest La a v negligence Hall case 2003 1488 as p 8 distinguished from 5 place and risk of harm fairly compared with conduct motivated extraneous Richard in time as a by purely personal considerations entirely In on 216 218 La 1974 present in each Under the LeBrane test 139 VICarIOUS to 4 23 04 an the employer s 874 intentional tort 2d So case 131 the need court of the tort only determine whether the were appreciable s general activities at the time within the scope of employment Id If the purpose of any servant extent within the service serving the business master s the master is subject to liability The scope of risks attributable the actuates to if the an act is otherwise employer increases with the amount of authority and freedom of action granted to the performing his assigned tasks at pp Richard 2003 1488 servant to servant in 6 7 874 So 2d at 138 Considering the foregoing precepts and the particular facts in this case we conclude that Mr scope of his employment Levingston at undisputed that phone Levingston regularly cell phone while driving of Neff Rental on Neff Rental Mr the cell summary to issue of material fact generally ie attests to that it did while driving intentions whatsoever the Levingston with business a cell on that on behalf the time the accident occuned and this the accident in question by Neff to Rental in opposing contradict Mr foregoing Neff Rental expect but provides or conveyed Thus In the instant the motion for Levingston and thus failed s to create deposition a genuine Upon careful examination it is clear that the affidavit not were at judgment failed testimony establishing Mr Levingston was conducting The affidavit submitted partial provided and course conducted business for Neff Rental phone activity directly contributed acting within the the time the accident occuned matter it is Mr was s subconscious intend for its expectations employees to talk no factual information that such to its employees although Neff Rental 6 or or on intentions cell phones expectations or enforced in any fashion may not have expressly authorized conducting prohibit it business on a cell phone while driving it certainly did not 3 CONCLUSION F or the foregoing denied and the trial hereby affirmed MOTION AFFIRMED 3 This was so reasons court despite Mr Levingston appeal are SUPPLEMENT s to supplement judgment granting partial All costs of this TO the motion assessed 7 summary to it judgment is Neff Rental Inc DENIED testimony that everybody does the record is and that he JUDGMENT regularly did so STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2005 JEROME MICHAEL ELLENDER VERSUS NEFF RENTAL INC ABC INSURANCE COMPANY DAVID A LEVINGSTON AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY McCLENDON J Based reached on concurs the and assigns reasons specific facts of this by the majority case I concur with the result
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