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Temple v. Sherman9/24/2003
o that their trip in furtherance of employment involved much greater risk of travel than the ordinary work commute. Boyte involved a summary judgment where the appellants contended that a material fact dispute remained regarding the employee's lack of wages for the return trip from the out-of-state job site. Nevertheless, the alleged factual controversy did not require a reversal of the summary judgment in view of the injured employee's use of a company vehicle driven by his fellow employee. Just as the employer had surely interested himself in the driver's transportation to the distant work site, the injured passenger/employee was also within the exclusion to the going-and-coming rule, and the accident was found to have arisen out of and in the course of employment.
In this case, Leon and Steven attempt to distinguish these cases by arguing that on the morning of the accident they had not gone to the job site in Mandeville and performed work for their employer. Thus, they argue that they were not traveling from work at the time of the accident and were thus outside the "course of employment."
This time and place distinction suggested by the plaintiffs fails to remove them from the course of their employment. The employment benefit of furnishing the company van was to defray the cost to all the Monroe employees of the long trip to and from Mandeville each week. The employees were on that trip when the accident occurred, having been notified by their employer on the morning of the accident that work had been suspended for the week. The risk of an accident on a long drive was incident to the plaintiffs' employment, and their leaving for Monroe following the company's decision to suspend work, regardless of the performance of no work on that date, placed their return commute in the course of employment.
Finally, the assessment of Leon's expert witness costs against the defendants is reversed. Under La. C.C.P. art. 1920, the defendants were not cast in judgment for Leon's claims, and we find no separate justification for the assessment in this case. Hodnett v. Hodnett, 36,532 (La. App. 2d Cir. 9/18/02), 827 So.2d 1205.
Conclusion
Based upon the jurisprudential standard for the employer taking an interest in the transportation of the employee to and from the job site and the facts concerning the employees' return trip to Monroe, we find that the jury's verdict that Steven was outside the coverage of the Act was clearly wrong and manifestly erroneous and the judgments against the defendants regarding the claims of Steven are reversed. The verdict dismissing the claim of Leon is affirmed, and the assessment of Leon's expert costs by the trial court against the defendants is reversed. Likewise, because Leon was covered under the Act, the judgment in favor of his wife, Nellie, is reversed. Costs of appeal are assessed to plaintiffs.
AFFIRMED IN PART, REVERSED IN PART.
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