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Elmore v. Kelly7/29/2005
Before CARAWAY, PEATROSS and DREW, JJ.
On May 27, 2002, Johnny Elmore was driving a 1988 Freightliner tractor-trailer rig hauling scrap metal from West Monroe to Jackson, Mississippi. The rig was owned by Houston Hines d/b/a Houston Trucking. A tire blew out on the rig on I-20 in Madison Parish. Elmore moved the rig to the interstate shoulder, activated the emergency flashers, and exited the vehicle. As Elmore checked the tire, he noticed that the trailer and tractor had become disconnected, allegedly because of an adjustment made to a lever by Houston Trucking. He entered the tractor in order to realign it with the trailer. After Elmore exited the vehicle to ensure that the trailer and tractor were realigned, Elmore was struck by a 1994 Nissan owned by Steve Kelly, Sr. and driven by Kelly's minor son. Elmore was momentarily pinned by the Nissan against one of the rig's tire wells. His right leg was subsequently amputated because of trauma received during the impact.
Elmore and his wife filed suit against Kelly, Safeway Insurance (Kelly's insurer), Houston Trucking, American Brokers Insurance Company, and Scottsdale Insurance. Scottsdale was Houston Trucking's liability insurer, and American brokered this business auto policy. Elmore alleged that but for Hines's modification of the vehicle, the trailer would not have disconnected from the tractor and he would not have been struck by the Nissan while checking the connection. He also asserted that American and Scottsdale failed to procure the minimum insurance coverage of $750,000 required by federal law. The trial court sustained American's exception of no right of action and motion for summary judgment, and this court affirmed that judgment. Elmore v. Kelly, 39,080 (La. App. 2d Cir. 12/15/04), 889 So. 2d 1173.
Hines and Scottsdale subsequently filed motions for summary judgment in which they asserted that, as an employee, Elmore's exclusive remedy against Hines was in workers' compensation. Scottsdale also asserted that it did not provide coverage to Hines for damages arising from bodily injury to an employee under his business auto policy. Finding that Elmore was Hines's employee, the trial court granted the motions. The Elmores appeal, arguing that a genuine issue of material fact exists regarding whether or not Johnny Elmore was an independent contractor who did not fall under workers' compensation.
DISCUSSION
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, and the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La. App. 2d Cir. 8/21/96), 679 So. 2d 477.
In general, an employee's exclusive remedy against his employer for on-the-job injury is workers' compensation; an exception is made for intentional torts. See La. R.S. 23:1032.
The Louisiana Workers' Compensation Act establishes a statutory presumption of employment status. Hillman v. Comm-Care, Inc., 2001-1140 (La. 1/15/02), 805 So. 2d 1157. La. R.S. 23:1044 states that a "person rendering service for another in any trades, businesses or occupations covered by this Chap
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