Carmouche v. Bankers Specialty Insurance Company et al
Filing
57
ORDER AND REASONS denying 30 Motion for Summary Judgment. Further Ordered that the 44 Motion for Leave to File Reply Memorandum is Dismissed as moot. Signed by Judge Ivan L.R. Lemelle on 3/13/2014. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL CARMOUCHE
CIVIL ACTION
VERSUS
NO. 13-255
CHRISTOPHER DENTMAN, ET AL.
SECTION “B”(5)
ORDER AND REASONS
Nature of Motion and Relief Sought:
Before the Court are Defendants TSI Adjusters, Inc. and Old
Dominion
Insurance
Plaintiff
Michael
Company's
Motion
Carmouche's
for
Summary
("Carmouche"
or
Judgment
and
"Plaintiff")
memorandum in opposition. (Rec. Docs. 30 & 35).
IT IS ORDERED that the Motion is DENIED. (Rec. Doc. 30).
IT IS FURTHER ORDERED that Defendant's Motion for Leave to
File Reply Memorandum (Rec. Doc. 44) is DISMISSED as moot and unnecessary.
Factual and Procedural History:
Plaintiff received a call on September 18, 2012 indicating
that an unmarked vehicle was parked at his address and an extended
ladder was leaning against the roof of his home. Suspicious of
crimes involving false repair schemes in the wake of Hurricane
Isaac, he returned home to investigate. After searching for the
owner of the car and ladder to no avail, Plaintiff decided
to
climb the ladder. As he reached the apex, the ladder collapsed and
he fell to the ground, shattering his ankle and receiving other
injuries.
Plaintiff then brought suit under a theory of negligence
against
Christopher
Dentman
("Dentman"),
TSI
Adjusters,
Inc.
("TSI"), and Old Dominion Insurance Company ("ODIC"). (Rec. Doc. 1
at 1-9). He alleged, inter alia, that Dentman negligently used and
failed to warn of the ladder, that Dentman worked as field adjuster
for TSI at the time of the accident, and that ODIC insured both
Dentman and TSI for the liability in question. Id. at 1-5.
TSI and ODIC now jointly move for summary judgment on the
grounds that Dentman is an independent contractor and not an
employee of TSI and that his negligence may therefore not be
imputed to TSI. (Rec. Doc. 30).
Law and Analysis:
A. Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions,
interrogatory
answers,
and
admissions,
together
with
any
affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). A genuine issue exists if the evidence
would
allow
a
reasonable
jury
2
to
return
a
verdict
for
the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
(1986). Although the Court must consider the evidence with all
reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial. Webb v. Cardiothoracic
Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
Because "only those disputes over facts that might affect the
outcome
of
the
lawsuit
under
governing
substantive
law
will
preclude summary judgment," questions that are unnecessary to the
resolution of a particular issue "will not be counted." Phillips
Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir. 1987).
B. Applicable Law and Analysis
It is well settled under Louisiana law that employers are
liable for torts committed by their employees in the course of
employment
but
not
for
the
torts
committed
by
independent
contractors. See, e.g., Loftus v. Kuyper, 87 So. 3d 963, 967 (La.
Ct. App. 2012) (Employers are vicariously liable for employee's
torts in course of employment under La. C.C. art. 2320.)
Here, the Defendants do not dispute that Dentman was working
for TSI as a field adjuster when the allegedly negligent acts and
resultant harm occurred; they contend only that Dentman was an
independent
contractor
and
that
liability
for
such
acts
may
therefore not be imputed to TSI. (Rec. Doc. 30-2 at 3-13).
Determining whether a principal-agent relationship involves
3
employees or individual contractors is a fact-intensive question
that should be decided on a case-by-case basis. Ryes v. BCS Ins.
Co., 379 F. App'x 412, 414 (5th Cir. 2010)("The independent
contractor employment status is determined on a case by case basis
in light of the entire record.")(citations ommited); Hickman v. S.
Pac. Transp. Co., 262 So. 2d 385, 390 (La. 1972) (such legal
relationships must be determined from the contract and "intentions
in establishing and carrying out that relationship as manifested in
its performance and the surrounding circumstances.") Elmore v.
Kelly, 909 So. 2d 36, 38 (La. Ct. App. 2005) ("The distinction
between employee and independent contractor status is a factual
determination that must be decided on a case-by-case basis, taking
into consideration the total economic relationship between the
parties and the various factors weighing either in favor of or
against an employer-employee relationship.") Accordingly, the issue
is not well-suited to resolution at the summary judgment stage. See
Newcomb
v.
N.
E.
1983)(considering
Ins.
Co.,
721
F.2d
employee/contractor
1016,
status
1018
and
(5th
Cir.
stating
that
"Louisiana jurisprudence favors jury resolution of [such] questions
for which no single answer is compelled.").
"The right of the employer to control the employee in his
performance
of
assigned
tasks
evidences
a
master-servant
relationship; the more extensive this control, the more likely it
is such a relationship will be held to exist." Newcomb, 721 F.2d at
4
1017 (5th Cir. 1983)(citing Hickman v. Southern Pacific Transp.
Co., So.2d 385, 391 (La. 1972). An independent contractor, on the
other hand, "works according to his own methods without direct
supervision or control by the employer except as to the overall
result." Id. (citing Hickman, 262 So.2d at 390). "Additionally, an
independent contractor is usually less dependent economically on a
particular employer than is an employee." Id. (citing Hickman, 262
So.2d at 391). "No single factor is determinative as to the
existence of a master-servant or employer-independent contractor
relationship." Id. (citations ommitted).
Here, Plaintiff has produced sufficient evidence to raise
genuine issues of material fact concerning the relationship between
Dentman and TSI. He, for instance, provides Dentman's affidavit, in
which Dentman states that he worked exclusively for TSI, that he
handled
a
high
volume
of
assignments
for
TSI,
and
that
TSI
controlled the number, manner, timing, and, to a significant
extent, the substance of the inspections he made on behalf of TSI.
(Rec. Doc. 35-3). Plaintiff also points to the Deposition of Joanna
Farris, owner and Vice President of Claims at TSI, in which Ms.
Farris
discusses
how
the
company's
written
and
unwritten
"procedures" and guidelines impose limits on how and what its
claims adjusters like Dentman must perform. (Rec. Doc. 35-5 at 3846). These and other items of evidence identified by Plaintiff
suffice to raise genuine issues concerning the fact-intensive
5
matter of Dentman's status as a TSI employee. Accordingly,
IT IS ORDERED that the Defendants' Motion for Summary Judgment
is DENIED. (Rec. Doc. 30).
IT IS FURTHER ORDERED that Defendant's Motion for Leave to
File Reply Memorandum (Rec. Doc. 44) is DISMISSED as moot and unnecessary.
New Orleans, Louisiana, this 13th day of March, 2014.
____________________________
UNITED STATES DISTRICT JUDGE
6
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