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Chabert v. Mothe Life Insurance Co.11/30/2004
AFFIRMED
Plaintiff/Appellant, Kim Chabert, appeals from a trial court ruling which granted summary judgment in favor of defendants, Mothe Life Insurance and Nick Beninate, on the issue of whether Chabert's cause of action qualified as an intentional act exception to La. R.S. 23:1032. For the following reasons, the judgment of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY
On September 7, 2001, plaintiff/appellant Kim Chabert ("Chabert") was employed as a collection agent by Mothe Life Insurance Company ("Mothe"), which is located in Jefferson Parish. On the morning of that date, Chabert was in the process of obtaining paperwork from a file drawer when she claims that she was deliberately pushed down by a co-worker, Nicholas Beninate ("Beninate"). Chabert alleges that as a result of the fall that ensued, she sustained a herniated disc in her back which required surgery.
Chabert thereafter filed suit on August 20, 2002, in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against both Beninate and Mothe ("defendants") alleging that Beninate's acts were intentionally performed within the course and scope of his employment with Mothe, and that Mothe was therefore vicariously liable. Following discovery, defendants filed a Motion for Summary Judgment on December 29, 2003, alleging that Beninate did not commit an intentional act as a matter of law, and that Chabert's exclusive remedy was under Louisiana Workers' Compensation Law.
Following a hearing on February 19, 2004, the trial court granted defendants' Motion for Summary Judgment. Chabert timely filed the present appeal.
LAW AND ARGUMENT
On appeal, Chabert raises four assignments of error: 1) That the trial court failed to apply the correct legal standard for defining an intentional tort; 2) The trial court erred in finding that Chabert was not the victim of an intentional tort; 3) Genuine issues of material fact exist in this case which preclude summary judgment, and; 4) The trial court erred in finding that Beninate's conduct was not committed within the course and scope of employment.
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law.
The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case.
There must be a "genuine" or "triable" issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show "that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." A material fact is one that would matter on the trial of the merits.
In her first assignment, Chabert asserts that the trial court failed to apply the correct standard to determine whether Beninate's alleged act rose to the level of an intentional tort.
Louisiana jurisprudence is replete with illustrations and explanations of the intentional act exception to La. R.S. 23:1032 as it pertains to an employer's liability to prosecution. As the Louisiana Supreme Court noted in Smith v. Tanner Heavy Equipment Co., Inc., citing its previous opinion in Bazley v. Tortorich:
We held that the meaning of "intent" in this context "is that the perso
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