Opinion
2023 CW 1106
12-18-2023
ANTHONY RAY VICKNAIR, SR., HEIDI VICKNAIR VIOLA, AND ANTHONY RAY VICKNAIR, JR. v. LM GENERAL INSURANCE COMPANY, ROBERT DEANGELO, CB&I, LLC, MCDERMOTT, INC., AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
LM General Insurance Company, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 676057.
BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.
Holdridge, J., retired, serving pro tempore, by special appointment of the Louisiana Supreme Court.
WRIT DENIED. The criteria set forth in Berlitz v. Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam) are not met.
EW
Holdridge, J., concurs in the denial of the writ. This ruling does not preclude relator from filing a new motion for summary judgment at the district court.
Welch, J., dissents and would grant the writ. Louisiana's Direct Action Statute, La. R.S. 22:1269, grants a right of direct action against an insurer to a tort victim who has a substantive cause of action against the insured. In the instant case, the insured is CB&I, LLC which is alleged to be vicariously liable for the tortious acts of its employee, Robert DeAngelo. Under Louisiana law, an employer is answerable for the damage occasioned by its servant in the exercise of the functions in which the servant is employed. Timmons v. Silman, 99-3264 (La. 5/16/00), 761 So.2d 507, 510; La. Civ. Code art. 2320. Specifically, an employer is liable for its employee's torts if, at the time, the employee was acting within the course and scope of his employment. Id. Courts have fairly consistently held that going to and from work is not an employment function for which the employer should be held liable. Bova v. Butler, 2014-0765 (La.App. 1st Cir. 12/23/14), 168 So.3d 551, 553, writ denied, 2015-0172 (La. 4/17/15), 168 So.3d 398. However, exceptions may apply when the employer provides, or pays the employee for, transportation to and from work, or when the operation of the vehicle was incidental to some employment responsibility. Id. Based on the evidence presented, although Robert DeAngelo received a per diem on the date of the accident, there does not appear to be an agreement or arrangement between Mr. DeAngelo and his employer, CB&I, LLC, that this was specifically meant as reimbursement for travel expenses or tied in any way to Mr. DeAngelo's actual travel, rather than for use to offset his general living expenses, or as a means to induce qualified personnel to the job site. Mitchell v. Pleasant Hill General Hos., Inc., 491 So.2d 183 (La.App. 3rd Cir.), writ denied, 493 So.2d 1223 (La. 1986). Therefore, I find that Robert DeAngelo was not in the course and scope of his employment at the time of the accident, and his employer, CB&I, LLC, cannot be held vicariously liable for his actions. Because CB&I, LLC cannot be held liable to the plaintiffs for Mr. DeAngelo's actions, neither can CB&I's insurer, LM General Insurance Company. Accordingly, I would grant this writ application, reverse the trial court's ruling, and grant LM General Insurance Company's motion for partial summary judgment and dismiss plaintiffs' direct action claims against LM General Insurance Company, solely in its capacity as alleged liability insurer of CB&I, LLC, with prejudice.