Lynette Thomas Wife of/and Leroy Thomas Versus Owe Insurance Company, Geico General Insurance Company and Southern Priority Logistics Corp ( 2023 )

LYNETTE THOMAS WIFE OF/AND NO. 22-CA-586
LEROY THOMAS
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
OWE INSURANCE COMPANY, GEICO
GENERAL INSURANCE COMPANY AND STATE OF LOUISIANA
SOUTHERN PRIORITY LOGISTICS CORP
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 770-540, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
October 04, 2023
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.
AFFIRMED
JJM
SMC
DISSENTS WITH REASONS
MEJ
COUNSEL FOR PLAINTIFF/APPELLANT,
LYNETTE THOMAS, CHESARAE THOMAS, JOEL SLACK, MICHAEL
SHORT, SR., JOEY LEE, MELISSA MASON, COREY TILLMAN, AND
DEMETRICE LONDON
Stephen M. Chouest, Sr.
J. Rand Smith, Jr.
Kylie D. Faure
COUNSEL FOR DEFENDANT/APPELLEE,
SOUTHERN PRIORITY LOGISTICS CORP.
Michael J. Remondet, Jr.
Michael R. Guidry
MOLAISON, J.
The plaintiffs/appellants, Lynette Thomas, Chesarae Thomas, Joel Slack,
Michael Short, Sr., Joey Lee, Melissa Mason, Corey Tilman, and Demetrice
London, (hereinafter referred to as the appellants), have appealed the grant of
partial summary judgment in favor of Southern Priority Logistics Corp.,
(hereinafter referred to as “Southern”), dismissing the appellants’ claims against
Southern for the vicarious liability of Marcos Cardenas. For the reasons that
follow, we affirm the grant of partial summary judgment.
FACTS AND PROCEDURAL HISTORY
Southern is a delivery service that retains drivers to make deliveries for its
customers. Marcos Cardenas was a driver retained by Southern to make deliveries
in his personal vehicle, on which he was required to maintain liability insurance.
On November 12, 2016, Mr. Cardenas accepted a delivery request to pick up
a package at 5616 Salem Street in Jefferson Parish and deliver it to the New
Orleans airport, approximately five miles away. The delivery was made at 9:05
a.m. on November 12, 2016. At approximately 9:17 a.m. Mr. Cardenas was
traveling on U.S. Highway 61 when he crossed into oncoming traffic, striking a
vehicle driven by Leroy Thomas and occupied by Lynette Thomas. On November
16, 2016, Mr. Cardenas died.
Mr. and Mrs. Thomas1 filed suit against Southern2 alleging that Southern
was responsible for the injuries they sustained in the accident of November 12,
2016. On August 30, 2019, Southern filed a motion for summary judgment
arguing that Southern was not vicariously liable for Mr. Cardenas because Mr.
1
Mr. Thomas passed away on January 21, 2021. On October 13, 2021, Mr. Thomas’ heirs were
substituted as party plaintiffs.
2
The petition also named Mr. Cardenas’ liability insurer who has been dismissed from this suit. The
petition was amended to include Southern’s insurer, who is not a party to the summary judgment that
forms the basis of this appeal.
22-CA-586 1
Cardenas was an independent contractor. The hearing on the motion was reset
several times at the request of the appellants.
Before its initial motion for summary judgment was heard, Southern filed a
“supplemental motion for summary judgment” on June 1, 2020, in which it argued
that even if the trial court were to find that there is a genuine issue of material fact
as to whether Mr. Cardenas was Southern’s employee, there was no genuine issue
of material fact that Mr. Cardenas had delivered the package and was no longer in
the course and scope of his assignment with Southern at the time of the accident.
The appellants opposed Southern’s motion, arguing that Mr. Cardenas was
an employee of Southern and as such, Southern was vicariously liable for his
tortuous acts. Following additional discovery, and the substitution of Mr. Thomas’
heirs due to Mr. Thomas’ death, Southern’s motion for summary judgment was
heard on December 15, 2021. After the hearing, the trial court took the matter
under advisement.
The next day, the appellants filed a motion to stay the consideration of
Southern’s motion for partial summary judgment. In this motion, the appellants’
counsel stated that he was not aware that a supplemental motion for partial
summary judgment had been filed by Southern, and requested that the court allow
the appellants time to conduct additional discovery relating to issues raised in
Southern’s supplemental motion. At the hearing on the motion to stay, the trial
court held that the issue of vicarious liability under the theory of whether Mr.
Cardenas was an employee or an independent contractor would not be relitigated.
A hearing to argue the issue of vicarious liability as to whether Mr. Cardenas was
in the course and scope of his assignment with Southern at the time of the accident
was set for April 12, 2022.
Southern filed a supplement to its motion for summary judgment and
attached the deposition testimony of the State Trooper who investigated the
22-CA-586 2
November 12, 2016 accident. The appellants filed a memorandum in opposition to
Southern’s motion for summary judgment on the course and scope issue in which
they argued that Mr. Cardenas was only on the road at the time of the accident
because of his assignment by Southern, and as such, was in the course and scope of
this assignment at the time of the accident.
At the hearing on April 12, 2022, the trial court overruled the appellants’
objection to the deposition of the State Trooper who investigated the November 12,
2016 accident. The court found that once Mr. Cardenas completed the task of
delivering the package to the airport, he was no longer in the course and scope of
his assignment by Southern, and concluded that there was no genuine issue of
material fact as to whether Mr. Cardenas was in the course and scope of his
assignment with Southern at the time of the accident.
On May 11, 2022, the trial court signed a written judgment granting partial
summary judgment in favor of Southern and designated the judgment as final
having determined that there was no just reason for delay.3 This timely appeal
followed.4
LAW AND DISCUSSION
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). If the mover will not
bear the burden of proof at trial on the issue that is before the court on the motion
3
On April 13, 2023, the judgment was amended to include the appropriate and necessary decretal
language. The trial court also designated the amended judgment as a final judgment having determined
that there was no just reason for delay.
4
In their petition, the appellants contend that Southern is liable for their injuries under a theory of direct
liability for hiring Mr. Cardenas as a delivery driver due to his prior accidents and poor health. The
appellants also contend that Southern is vicariously liable for the negligent acts of their employee, Mr.
Cardenas, in causing the accident. The summary judgment at issue in this appeal only involves the
vicarious liability of Southern. The issue of the direct liability of Southern is still pending in the trial
court.
22-CA-586 3
for summary judgment, the mover’s burden on the motion does not require him to
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 more
elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art.
966(D)(1). The burden then shifts to 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. Factual inferences
reasonably drawn from the evidence must be construed in favor of the party
opposing a motion for summary judgment, and all doubt must be resolved in the
opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050
(per curiam). 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. Samaha v. Rau, 07-
1726 (La. 2/26/08), 977 So.2d 880.
A decision as to the propriety of a grant of a motion for summary judgment
must be made concerning the substantive law applicable to the case. Bach v. Bd.
of River Port Pilot Comm’rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355,
362.
In their first assignment of error on appeal, the appellants contend that the
trial court erred in allowing Southern to “improperly supplement” its prior motion
for summary judgment. The record indicates that the appellants did not request
that the trial court strike the supplemental motion for summary judgment. Rather,
the appellants requested that the ruling on the motion for summary judgment that
was argued on December 15, 2021, be stayed to allow the appellants time to
respond to the “supplement.” As a general rule, appellate courts will not consider
issues raised for the first time on appeal, which are not pleaded in the court below
and which the trial court has not addressed. Lepine v. Lepine, 17-45, (La. App. 5
22-CA-586 4
Cir. 6/15/17), 223 So. 3d 666, 673. Moreover, the appellants were not prejudiced
by the trial court’s consideration of the supplemental motion for summary
judgment. The trial judge granted the appellant’s motion to stay and allowed the
appellants time to conduct additional discovery and respond to the supplemental
motion. This assignment of error is without merit.
Southern’s motion on the issue of whether Mr. Cardenas was an employee:
In its initial motion for summary judgment filed on August 30, 2019,
Southern argued that Mr. Cardenas was not an employee, rather he was an
independent contractor, and as such Southern was not liable for the negligence of
Mr. Cardenas in causing the accident. In support of this position, Southern
attached the affidavit of Billy Pierot dated August 14, 2019. In this affidavit, Mr.
Pierot explains that he purchased Southern5 from its prior owner, and that Mr.
Cardenas had signed a contract with the precursor of Southern on April 2, 2011.
Mr. Pierot attested that when Southern receives a request from a client to pick up
and deliver a package, it will contact a driver in the area of the pickup location to
offer the driver the option to perform the job. If a driver does not accept the job, it
is offered to another driver. Mr. Pierot attested that each driver must supply their
own means of conveyance, are required to maintain automobile liability insurance,
and comply with all governmental regulations. The drivers are not provided a
schedule, required to be on call, or work a certain number of hours. The drivers
are not covered under a workers compensation policy, nor does Southern withhold
payroll taxes or provide benefits to the drivers. Drivers are required to make
pickups and deliveries in the time restraints set by the individual customers and are
free to choose their own routes for pickup and delivery. Mr. Pierot attested that
Mr. Cardenas accepted an offer from Southern to pick up and deliver a package
5
Mr. Pierot attested that he purchased the stock and assets of Louisiana Consulting and Training
Corporation on May 1, 2015 and then changed the name to Southern Priority Logistics Corporation.
22-CA-586 5
from a UPS location and carry it to the Louis Armstrong International Airport on
November 12, 2016, and that Mr. Cardenas’ vehicle collided with the Thomas
vehicle during the delivery.
In opposition the appellants asserted that Southern exercised “all necessary
and requisite control over Mr. Cardenas to be deemed vicariously liability [sic] for
his acts and omissions.” In support of this argument, the appellants attached the
April 13, 2021 deposition of Mr. Pierot and exhibits to the deposition. Included in
these exhibits is the police report from the accident between Mr. Cardenas and Mr.
and Mrs. Thomas, and the “receipt” showing that the package was delivered at
9:05 a.m.
At the December 15, 2021 hearing, the trial court sustained Southern’s
exceptions to the deposition of Mr. Cardenas that was taken in an unrelated matter.
Counsel for Southern argued that Mr. Cardenas was an independent contractor
based on the fact that he had to have his own means of conveyance and his own
insurance, he did not have to be available at certain times, he controlled his
schedule, and could accept or refuse the request to deliver packages. Counsel
maintained that each one of the deliveries was a separate job and Mr. Cardenas was
able to negotiate the price he was paid for the deliveries. Counsel for Southern
went on to argue that Mr. Cardenas was not in the course and scope of his
assignment with Southern at the time of the accident because the delivery had been
completed and he was free to go wherever he pleased.
In response, the appellants argued that the contract signed by Mr. Cardenas
to accept the delivery assignment did not make Mr. Cardenas an independent
contractor. Rather, the requirements imposed on Mr. Cardenas by the contract
indicate that Mr. Cardenas was an employee of Southern, pointing out that Mr.
Cardenas had worked for Southern and its predecessor since 2011, and that
Southern controlled the assignments of time-sensitive deliveries. The appellants
22-CA-586 6
admitted that although Southern did not direct the route for the deliveries, Mr.
Cardenas was required to take the fastest route. The appellants further argued that
Mr. Cardenas had not “finished his job” at the time of the accident because he was
paid a flat rate for “going and coming.” The appellants contend that the only
reason why Mr. Cardenas was in his car at the time of the accident was to make the
delivery he made for Southern. Southern responded that Mr. Pierot erred in his
first affidavit in which he stated that the accident occurred during delivery but that
he cleared up this issue during his deposition citing the email from UPS stating that
the package had been delivered before the accident occurred. After the hearing,
the trial judge took the matter under advisement.
Southern’s motion on whether Mr. Cardenas was in the course and scope of his
assignment:
Before its initial motion for summary judgment was heard and ruled on,
Southern filed a “supplemental motion for summary judgment,” arguing,
alternatively, that Mr. Cardenas was not in the course and scope of his assignment
with Southern at the time of the accident, and that it was not liable to the appellants
under either the employee theory of vicarious liability or the course and scope
theory of vicarious liability. An affidavit of Mr. Pierot dated May 13, 2020, was
attached to this motion, in which Mr. Pierot attested that on November 12, 2016,
UPS emailed Southern confirmation showing that Mr. Cardenas delivered the
package at 9:05 a.m. The UPS email was attached to his affidavit. Mr. Pierot
attested that Mr. Cardenas was involved in the motor vehicle accident with the
appellants after the delivery, and that Mr. Cardenas did not contract to perform any
other deliveries with Southern on November 12, 2016.
In the opposition to Southern’s supplemental motion for summary judgment,
the appellants argued that Mr. Cardenas was in the course and scope of his
employment with Southern at the time of the accident because the documents
22-CA-586 7
produced in discovery indicated that he would receive delivery assignments from
Southern throughout the day. In support of this argument, the appellants attached
an affidavit of Mr. Cardenas’ widow, who attested that Mr. Cardenas did not work
for any other delivery companies and that he was on call for Southern 24 hours a
day, seven days per week, every day of the year. She further attested that at the
time of the accident, Mr. Cardenas had accepted a delivery job from Southern for
which “he was paid a fixed fee on a round trip basis.” Appellants also objected to
the March 25, 2022 supplement filed by Southern, including the deposition of the
investigating trooper.
On April 12, 2022, the trial court held a hearing on the issue of whether
Southern could be held vicariously liable for the appellants’ injuries based on Mr.
Cardenas being in the course and scope of his assignment with Southern at the time
of the accident. The trial court overruled the appellants’ objection to the
deposition of the investigating trooper, finding that it was submitted before the
appellants’ opposition and that the appellants were not prejudiced by this
deposition. At the hearing, Southern argued that after Mr. Cardenas delivered the
package to the airport, he was free to go anywhere, pointing out that there was no
evidence to show that Mr. Cardenas had been assigned to deliver another package
after he dropped off the package at the airport. In response, the appellants argued
that Mr. Cardenas was paid round trip for the delivery and that he had not filled out
the required paperwork for the delivery at the time of the accident. After the
arguments, the trial judge stated that the delivery had been completed, that there
was no genuine issue of material fact, and that summary judgment should be
granted.
Analysis:
First, on de novo review, we find the trial court erred in overruling the
appellants’ objection to Southern’s supplement containing the deposition of the
22-CA-586 8
investigating trooper. La. C.Civ.P. art. 966B(3) prohibits documents from being
filed with a reply memorandum to an opposition to a motion for summary
judgment.
Our de novo review of the pleadings and properly admitted evidence
indicates that there is no material issue of fact as to whether Mr. Cardenas was in
the course and scope of his assignment with Southern at the time of the accident.
There is no dispute that Mr. Cardenas accepted an assignment from Southern to
deliver a package to the airport and that at the time of the accident, the package had
been successfully delivered. The appellants have not come forth with any evidence
to indicate that Mr. Cardenas had accepted another assignment for pickup and
delivery after he delivered the package to the airport at 9:05 a.m. on November 12,
2016.
In Jack v. McFarland, 15-405 (La. App. 3 Cir. 10/7/15), 175 So.3d 1169,
McFarland (the employee) was traveling home after leaving a meeting with a client
when he rear-ended a vehicle operated by Jack. Thereafter, Jack filed suit against
McFarland and his employer (Coca-Cola), alleging that at the time of the accident,
McFarland was in the course and scope of his employment with Coca-Cola.
Jack asserted that at the time of the accident, McFarland was a salaried
employee for Coca-Cola and was visiting customers on the day of the accident.
Jack noted that McFarland did not have a set work schedule, and was issued a cell
phone and laptop by Coca-Cola which he used to respond to work-related calls and
e-mails. He argued that Coca-Cola had control over McFarland, and therefore he
was in the course and scope of his employment when the accident occurred.
Coca-Cola filed a motion for summary judgment on the issue of vicarious
liability, arguing that, although McFarland was a salaried employee and received
compensation for his mileage, McFarland had completed his work for the day and
was returning home. McFarland did not and was not planning to conduct any
22-CA-586 9
business on behalf of Coca-Cola following his last meeting that day. In affirming
the trial court’s grant of summary judgment that McFarland was not in the course
and scope of his employment at the time of his accident, the Third Circuit
concluded that McFarland was finished with his work and meetings and was
traveling home, noting that he conducted no further work once he left his last
client. Id. at 1175.
Similarly, in Migliore v. Gill, 11-407, (La. App. 5 Cir. 12/13/11), 81 So.3d
900, 904, a doctor, who was “on call” on the day he was involved in a traffic
accident that allegedly injured another motorist, was found not to be within the
course and scope of his employment at the time of the accident, even though he
wore a beeper and was expected to report to his place of employment within 30
minutes if called to work. At the time of the accident, he was taking his son to his
ex-wife’s house, a personal activity that did not benefit his employer, and he was
never called to report to work during his “on-call” shift that day. Id.Likewise, at the time of the accident in this case, Mr. Cardenas had
completed the delivery of the package for Southern. There is no evidence that he
had accepted another delivery or that he was conducting any further business on
behalf of Southern at the time of the accident. Accordingly, Mr. Cardenas was not
in the course and scope of his assignment with Southern at the time of the accident.
This finding pretermits a discussion of whether Mr. Cardenas was an employee of
Southern or an independent contractor.
CONCLUSION
Based on the foregoing, after our de novo review of the record, memoranda,
exhibits, and the law, we find no genuine issue of material fact as to whether Mr.
Cardenas was in the course and scope of his assignment with Southern at the time
of the November 12, 2016 accident. Hence, Southern is entitled to partial
summary judgment on the issue of vicarious liability as a matter of law.
22-CA-586 10
Accordingly, the trial court judgment granting partial summary judgment in favor
of the defendant, Southern Priority Logistics Corp., dismissing the vicarious
liability claims of Lynette Thomas, Chesarae Thomas, Joel Slack, Michael Short,
Sr., Joey Lee, Melissa Mason, Corey Tilman, and Demetrice London, with
prejudice is affirmed.
AFFIRMED
22-CA-586 11
LYNETTE THOMAS WIFE OF/AND NO. 22-CA-586
LEROY THOMAS
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
OWE INSURANCE COMPANY, GEICO
GENERAL INSURANCE COMPANY STATE OF LOUISIANA
AND SOUTHERN PRIORITY
LOGISTICS CORP
JOHNSON, J., DISSENTS WITH REASONS
I, respectfully, dissent from the majority opinion on a procedural basis. For
the following reasons, I find that the merits of the instant appeal are not properly
before us for review.
As mentioned in the majority opinion, Plaintiffs/Appellants, Lynette
Thomas, Chesarae Thomas, Joel Slack, Michael Short, Sr., Joey Lee, Melissa
Mason, Corey Tilman, and Demetrice London, filed vicarious liability and direct
liability6 claims against Southern Priority Logistics Corp. (hereinafter referred to as
“Southern Priority”). The trial court rendered summary judgment in favor of
Southern Priority on the vicarious liability claim, finding that Marcos Cardenas
was not in the course and scope of his employment with Southern Priority at the
6
Plaintiffs alleged the following claims against Southern Priority in their petition:
1. Engaging and permitting Marco A. Cardenas, an injured, impaired, and/or medically
unsound courier delivery person, to pick up and/or deliver its customers’ goods or
products, thereby resulting in or contributing to the Accident;
2. Failing to require or obtain proper medical testing and medical clearance, including
appropriate physical examinations of Marco A. Cardenas and/or the implementation
of an appropriate driver certification program;
3. Engaging Marco A. Cardenas to pick up and/or deliver its customers’ goods or
products, with knowledge that he has previously lost consciousness while operating a
delivery vehicle;
4. Failing to take reasonable or appropriate actions to assure that Marco A. Cardenas
was mentally or physically competent to safely operate a delivery vehicle while
performing courier delivery services on Southern Priority’s behalf;
5. Negligently engaging an impaired driver, that was suffering from pain, suffering
[sic], medical treatment, disability, lost wages, and loss of earning capacity, and who
was not physically or mentally fit to perform the assigned job;
6. Failing to properly train or supervise Marco A. Cardenas;[… .]
22-CA-586 12
time of the accident. However, the direct liability claims are currently pending at
the trial court level.
At the conclusion of the April 12, 2022 summary judgment hearing, the trial
court certified the partial summary judgment. The court orally reasoned,
Well, let me do this. Let me certify this judgment with respect
to this summary judgment as final under 915, I think, Counselor -- or
1915, so that if you choose to take an appeal, you’ll have the ability to
do so. To the extent that the other motion is pending, I’ll take up the
other motion, and we’ll make this -- this is a partial summary
judgment anyway, so I’ll certify that ruling as final, so if you want to
take the appeal, you can. So you can put that in the judgment,
Counsel, that I’m certifying it as final, there’s no just reason for delay.
The trial court’s ruling in favor of Southern Priority was designated as a final
judgment, pursuant to La. C.C.P. art. 1915(B)(1)7, in the May 11, 2022 written
judgment, and there was a determination that there was no just reason for delaying
entry of the final judgment. No further reasons to support the designation or
certification of finality were provided by the court.
For jurisdictional purposes, this Court must consider whether the judgment
at issue is appealable. See, Bianchini v. Muggivan, 09-924 (La. App. 5 Cir.
4/13/10), 40 So.3d 157, 158. In Bell v. Steckler, 19-170 (La. App. 5 Cir. 12/4/19),
285 So.3d 561, 568, writ denied, 20-28 (La. 2/26/20), 347 So.3d 877, this Court
explained the review of designated final judgment by stating,
To assist the appellate court in its review of designated final
judgments, the trial court should give explicit reasons, either oral or
written, for its determination that there is no just reason for delay. If
such reasons are given, the appellate court should review the
certification by applying the abuse of discretion standard. R.J.
Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113,
1122. Historically, our courts have had a policy against multiple
appeals and piecemeal litigation. La. C.C.P. art. 1915(B) attempts to
strike a balance between the undesirability of piecemeal appeals and
the need for making review available at a time that best serves the
needs of the parties. In conducting our review of the trial court’s
designation, we consider the “overriding inquiry” of “whether there is
no just reason for delay,” as well as the other nonexclusive criteria
trial courts should use in making the determination of whether
7
The judgment designates the ruling as final pursuant to La. C.C.P. art. 1915(A)(1). However,
Subsection B(1) addresses the designation of partial final judgments.
22-CA-586 13
certification is appropriate, including the relationship between the
adjudicated and the unadjudicated claims; the possibility the need for
review might or might not be mooted by future developments in the
trial court; the possibility the reviewing court might be obliged to
consider the same issue a second time; and miscellaneous factors such
as delay, economic and solvency considerations, shortening the time
of trial, frivolity of competing claims, expense, and the like. Id. at
1122-23.
Here, the trial court orally acknowledged Plaintiffs’ pending motion for
summary judgment8 on their direct liability claims against Southern Priority;
however, it did not provide an explicit reason why partial summary judgment in
favor of Southern Priority should be immediately appealable. As such, the trial
court’s designation is not entitled to an abuse of discretion review; rather, the
designation should be reviewed under the de novo standard of review.
After de novo review, I find that the trial court legally erred when it
designated the partial summary judgment in favor of Southern Priority as a final
judgment, pursuant to La. C.C.P. art. 1915(B)(1). The issues surrounding Mr.
Cardenas’ employment are questionable in both the vicarious liability and direct
liability claims, and whether Mr. Cardenas was within the course and scope of his
employment with Southern Priority will be re-litigated through Plaintiffs’ pending
direct liability claims.9 Affirming the trial court’s partial summary judgment at
this juncture will ensure multiple appeals on the same issue, as the parties will
likely appeal the trial court’s determinations on Plaintiffs’ direct liability claims.
Therefore, I find that the trial court improperly designated the May 11, 2022
8
Plaintiffs filed their motion for partial summary judgment against Southern Priority on April 4, 2022.
Plaintiffs sought summary judgment on the issues of Southern Priority’s liability for its fault and direct
negligence in hiring, retaining, drug testing, or supervising Mr. Cardenas and/or its vicarious liability for
Mr. Cardenas’ torts.
9
See, Pelitire v. Rinker, 18-501 (La. App. 5 Cir. 4/17/19), 270 So.3d 817, 834, writ denied, 19-793 (La.
9/17/19), 279 So.3d 378, where this analyzed the difference between vicarious liability and negligent
hiring, finding
The major difference between the two theories of liability is that the tort of negligent
hiring is not limited to the narrow confines imposed by the respondeat superior’s “scope
of employment” limitation. This limitation, however, is imposed on the negligent hiring
cause of action. This limitation is that the employee must in some respect have been
engaged in furthering the employers’ business when the employee crossed the line. Thus,
the considerations relied upon by courts in imposing liability under the two theories are
similar.
(Internal citations omitted).
22-CA-586 14
summary judgment as final pursuant to La. C.C.P. art. 1915(B)(1). Accordingly, I
would dismiss the appeal and remand the matter for further proceedings.
22-CA-586 15
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 4, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-586
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
J. RAND SMITH, JR. (APPELLANT) STEPHEN M. CHOUEST, SR. (APPELLANT) MICHAEL J. REMONDET, JR. (APPELLEE)
MAILED
MICHAEL R. GUIDRY (APPELLEE) KYLIE D. FAURE (APPELLANT) CHARLES E. LECHE (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW ROBERT E. KERRIGAN, JR. (APPELLEE)
200 WEST CONGRESS ST. 4732 UTICA STREET ATTORNEYS AT LAW
SUITE 1100 SUITE 100 755 MAGAZINE STREET
LAFAYETTE, LA 70509 METAIRIE, LA 70006 NEW ORLEANS, LA 70130