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Temple v. Sherman9/24/2003
lie, instituted this action against Sherman and Clarendon America Insurance Company ("Clarendon"), Hartec's automobile liability insurer, seeking damages for the employees' injuries. The Louisiana Worker's Compensation Corporation intervened in the suit seeking reimbursement or recovery of worker's compensation benefits paid to both plaintiffs.
Following trial, the jury found Sherman 100% at fault in causing the accident but denied Leon's tort damage claim after finding him to have been within the course of his employment with Hartec. Nevertheless, the jury awarded Nellie Temple loss of consortium damages in the amount of $2,500, and the trial court awarded Leon recovery of the costs for his expert witnesses. Steven was awarded $225,000 in general and special damages after the jury determined that he was not within the course of his employment with Hartec at the time of the accident. All parties sought either a new trial and/or a judgment notwithstanding the verdict on the inconsistent jury verdict. After the trial court denied all motions, both sides to the dispute appealed.
Discussion
Under the Workers' Compensation Act, employers are responsible for compensation benefits to employees only when the injury results from an accident "arising out of and in the course of his employment." La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, 02-1539 (La. 7/2/03), ___ So.2d ___. The employer and the negligent employee are given immunity from civil liability for employment-related accidents covered by the Act. La. R.S. 23:1032. Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course of his employment, and thus, are not compensable under the Act. One exception to the going-and-coming rule set forth by the jurisprudence occurs when "the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses." McLin, supra, and cases cited in fn. 1.
A claim by the spouse of an injured worker for loss of consortium is barred when the injury is covered by workers' compensation. Whiddon v. Livingston Parish Council, 00-1349 (La. App. 1st Cir. 9/28/01), 809 So.2d 421, writ denied, 01-2893 (La. 1/25/02), 807 So.2d 837.
In Phillips v. Epco Carbon Dioxide Products, Inc., 35,740 (La. App. 2d Cir. 2/27/02), 810 So.2d 1171, writ denied, 02-0979 (La. 6/7/02), 817 So.2d 1146, this court had the occasion to review the jurisprudential development of this exception to the going-and-coming rule. We cited several cases where employees were injured while being transported from work in company-owned vehicles, thus placing the employee within the coverage of the Act. Whether the employer was paying the employee an allowance for the actual mileage of the specific trip or a fixed sum for a monthly travel allowance, as was the case in Phillips, was not critical to our determination in that case that the employer had interested himself in the transportation. Additionally, we determined that employer control over the employee during the commute to or from work was not the emphasis of the jurisprudence in fashioning this exclusion. Instead, the exclusion "rests entirely on the fact that the employer has taken an interest in the transportation of the employee as an inducement to the employment agreement." Id. at 1175.
In Boyte v. Ward North American Insurance Co., 35,929 (La. App. 2d 5/8/02), 818 So.2d 293, writs denied, 02-1520 (La. 9/20/02), 825 So.2d 1179, 02-1591 (La. 9/20/02), 825 So.2d 1181, the job site was many hours away from the employees' homes s
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