Opinion
No. 2022-CC-01648.
01-18-2023
Kian SPIKES and Deandrea Winesberry, Individually and o/b/o the Minor Child Julez Spikes, and Kian Smith, Individually and o/b/o the Minor Child Lance Smith, v. RTW STAINLESS CONTRACTORS, INC.
Applying For Supervisory Writ, Parish of Orleans Civil, Civil District Court Number(s) 2020-00048, Court of Appeal, Fourth Circuit, Number(s) 2022-C-0597.
Writ application denied.
Crain, J., would grant.
McCallum, J., would grant and assigns reasons.
McCALLUM, J., would grant and assigns reasons.
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); Davis v. A Bar & Grill with a Bite, Inc., 2019-1928 (La. 3/16/20), 294 So.3d 1051, 1052. In this matter, the trial court denied the summary judgment motion of defendant, RTW Stainless Contractors, Inc., on the basis that there was a genuine issue of material fact as to whether Larry Wayne Peterson was an independent contractor or an employee of RTW at the time of the accident made subject of this lawsuit.
In my view, the record supports a finding that summary judgment in RTW's favor may be appropriate. As this Court recently stated in Bolden v. Tisdale, 2021-00224, p. 1 (La. 1/28/22), 347 So.3d 697, 701, reh'g denied, 2021-00224 (La. 3/25/22), 338 So.3d 1183, "[t]he 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) payment of wages; (3) power of dismissal; and (4) power of control." The Court further noted that "[t]he 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." Id.
Here, there is ample evidence that Mr. Peterson was an independent contractor and not RTW's employee. For example, RTW and Mr. Peterson contracted for Mr. Peterson's work, for which he was issued a 1099; RTW exercised no supervision or control over Mr. Peterson; Mr. Peterson received no salary from RTW and was not paid hourly wages by RTW with deductions/withholdings for taxes and benefits; rather, he was paid by RTW upon submitting invoices for his time and materials. Based on these facts, the trial court may have erred in denying RTW's motion for summary judgment.
At the least, I note that the majority's decision to deny RTW's writ application was made without the benefit of an opposition memorandum. In my view, the Court should have ordered an opposition prior to ruling on this writ application.