Subcontractor’s Status as Plaintiff’s “Two-Contract” Statutory Employer Establishes Owner’s Immunity

For years, Louisiana plaintiffs attorneys have argued that the force ofimpact in an auto accident is not determinative of their clients’ injuries andshould be afforded little, if any, weight. A recent decision out of theLouisiana First Circuit Court of Appeal does damage to that argument. In Jonesv. Bravata, Jr. and The City of Baton Rouge, 2018 CA 0837 (La. App. 1 Cir.5/9/19), the First Circuit upheld the trial court's jury instruction on “forceof impact” where photographs showed only minor damage and the defendantdescribed the accident as a “bump.”

The accident occurred when a City employee rear-ended the plaintiffs'vehicle. Liability was stipulated and the only question at trial was damages.Mrs. Jones alleged severe neck and back injuries. She began treatment with anorthopedist within a week of the accident and thereafter received five“relatively non-invasive surgical procedures” in lieu of a lumbar fusionsurgery. The jury returned a verdict of $200,000, which included $150,000 inpast medical expenses and $35,000 in future medical expenses, but awardedlittle for general damages. Mrs. Jones appealed the verdict, asserting that thetrial court erred in instructing the jury on force of impact.

The "force of impact" jury instruction in dispute provided:

Whilethe force of a collision may be considered in determining whether a person wasinjured by an accident and the extent of the injuries sustained, it should notbe the only factor to consider in making such a determination. Even though theforce of impact may be slight, it does not preclude an award of damages.However, in determining causation, you may consider the minimal nature of theaccident.

In considering the plaintiff's assignment of error, the First Circuit noted that Mrs. Jones was correct that no witness specifically testified that the accident was too minor to have caused her injuries. However, there was evidence in the record upon which the jury could have reached the conclusion that this was a minimal impact.

Common sense would appear to support a connection between the force of an impact and the injury one could be expected to suffer. The recent Jones decision allows defendants to promote this common sense argument. Where the claimed injuries are disproportionate to the forces involved, this argument can make the difference at trial.

John Grinton is a partner of the firm admitted in state, federal and appellate courts throughout Louisiana. His practice focuses on commercial and construction litigation, representing insurance companies, architects, engineers, contractors and other businesses in all aspects of litigation. His workers’ compensation practice includes representing clients in medical billing disputes, healthcare provider disputes, statutory/borrowing/special employer disputes, and court approved settlements. John has been involved in complex cases involving construction defect claims, breach of contract and negligence actions, insurance coverage issues, lender liability, securities litigation and personal injury matters. He has firsthand experience in jury trials and arbitration's, as well as mediation, appellate briefing and oral argument.

Uninsured/underinsured motorist coverage (“UM coverage”) is included in all automobile liability policies by Louisiana law unless the insured “rejects [UM] coverage, selects lower limits, or selects economic only coverage.” What constitutes an adequate rejection of UM coverage has been the crux of countless lawsuits across the state. Recently, in Havard v. Jeanlouis, et al, 2021-C-00810 (La. 6/29/22), the Louisiana Supreme Court examined the validity of a corporate representative’s signature in the context of execution of a UM waiver form. Louisiana courts have found that without a valid signature, UM coverage generally may not be waived.

The Havard court recognized that a corporation cannot “sign” its own name, and that an authorized representative must act on its behalf. Under the facts of this case, an administrative assistant attempted to execute a UM waiver form at the corporate representative’s direction with a stamp of the representative’s signature. The plaintiff argued that the use of the stamp did not meet the requirements for proper execution of the UM waiver form at issue.

Considering these facts, the court noted that Louisiana law of mandate provides that “when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.” The court continued: “Accordingly, where one individual signs a UM form on behalf of another individual and authority is not conferred by law, our Civil Code requires this authority be in writing.”

While the corporate representative in Havard verbally instructed his administrative assistant to complete the waiver with his signature stamp, no written mandate existed between the representative and the assistant to confirm this authority. Absent the written mandate, the court disregarded the express intention of the corporate representative and held the form invalid.

The court recognized the impracticality of its holding. However, it also commented “Concerns over the practical impact within the insurance industry in scrutinizing stamped signed UM forms are unavailing. Inconvenience is not absurdity. The insurer has the authority, opportunity, and responsibility to assure the UM form is completed properly. … Practical considerations regarding increased due diligence requirements are matters of policy best directed to the legislature.”

Cases involving UM waiver forms are fact-sensitive. Havard involved unique facts where the company’s authorized agent did not sign the UM waiver form personally. While Havard may be limited to its facts, it reminds that proper execution of a UM waiver form is necessary for UM coverage to be properly waived.

Louisiana Supreme Court Provides Updated Guidance on Execution of UM Waiver Forms

In Thompson v. Winn-Dixie Montogomery, Inc., et al., 2015-C-0477, – So.3d —, the Louisiana Supreme Court recently held that a merchant is not solidarily liable for “slip and fall” damages caused by the actions of an independent contractor, a janitorial services company. Additionally, the Thompson Court addressed the best practices for an appeals court to raise an issue “sua sponte,” i.e, on its own.

The facts of the case are straightforward. The plaintiff slipped on a puddle of water in front of a meat case in a grocery store. The merchant, Winn-Dixie, kept a floor mat in front of the meat case to address any condensation. At the time of the fall, the mat was rolled up to permit the area to be mopped. Winn-Dixie had contracted with Southern Cleaning Services, Inc. (“SCSI”) to provide janitorial services. SCSI then subcontracted with KAP Cleaning Services, Inc. (“KAP”) to perform this work. KAP’s employee was the one who rolled up the mat and was preparing to mop the meat case area when plaintiff fell.

Plaintiff settled with SCI and KAP prior to trial. However, KAP’s “third party fault” was still an issue at trial. The trial court found KAP 70% at fault and Winn-Dixie 30% at fault.

Hoping to impact the fault allocation on appeal, the plaintiff argued that Winn-Dixie possessed an exclusive duty over floor safety and was liable under La. R.S. 9:2800.6 (the “Merchant Liability Statute”) because its manager did not conduct inspections every thirty minutes as required by Winn-Dixie policies, and because the floor mat was undersized. Additionally, plaintiff argued that Winn-Dixie should have been aware of the water in front of the meat case because of a history of alleged “leaks.”

In response to plaintiff’s arguments, Winn-Dixie offered the testimony of its refrigeration maintenance technician, who explained that the meat case does not circulate water and, therefore, cannot leak. However, the technician conceded that condensation could develop depending on the temperature and humidity levels in the store.

The appeals court accepted the plaintiff’s arguments and reversed. In assessing 100% fault to Winn-Dixie, the appellate court held that: (1) Winn-Dixie could not delegate the statutorily-imposed duties of the Merchant Liability Statute; and (2) Winn-Dixie possessed “operational control” of KAP’s employee. The appeals court decision suggested that the independent contractor could never be assessed fault in connection with floor safety because Winn-Dixie possessed the duty under the law.

The Louisiana Supreme Court in Thompson reversed the appeals court. While the act of contracting with an independent contractor does not eliminate the merchant’s statutory duties, the independent contractor may also be liable if there is evidence of negligence on its part. Accordingly, the Court held that all fault must be assessed because a merchant is not solidarily liable for the actions of an independent contractor.

The Thompson Court also addressed whether Winn-Dixie controlled and supervised KAP’s employee to the extent that it had “operational control.” On this subject, the Court noted that the issue of “operational control” was not pled, briefed or argued by any party and was instead raised sua sponte by the appeals court. In this context, the Court instructed that, if an issue is raised sua sponte, the best “practice [for the appeals court] is to invite additional briefing from the parties prior to rendering judgment.”

The Thompson Court felt that it was erroneous for the appellate court to raise an issue without briefing or input from the parties on that issue. Nevertheless, it also found that the evidence in the record was insufficient to establish that Winn-Dixie exercised operational control over KAP. After determining the Winn-Dixie was not responsible for the actions of KAP’s employee, the Court applied the “Watson factors” and determined that the trial court had reasonably apportioned fault based upon the record created at trial.