Hebert v. Richard
166 So. 3d 1265
La. Ct. App.2015Background
- On March 3, 2007 Tommie Hebert fell from a moving helicopter during a deer-netting operation in Mexico and suffered severe injuries; the helicopter was owned by Industrial Helicopters, Inc. (Industrial).
- Hebert had been employed by Industrial ~30 years primarily as a commercial fuel truck driver and was paid by Industrial; he performed deer-netting only occasionally, unpaid, and described it as helping friends.
- J. Oran Richard owned both Industrial and Game Management, Inc. (GMI); defendants argued Hebert was a "borrowed servant" doing GMI work at time of accident.
- Defendants repeatedly filed statements and briefs asserting Hebert was not performing Industrial’s work at the time (i.e., was not in Industrial’s course and scope). The trial court initially granted summary judgment finding borrowed-servant status, but this was reversed on appeal and remanded.
- At the second trial, the jury found Hebert was in the course and scope of employment with Industrial; judgment for Industrial followed. Appellants appealed, arguing (inter alia) Industrial had judicially confessed Hebert was not in its course and scope, evidence of that should have been admitted, and a directed verdict should have been entered.
- The appellate court concluded Industrial’s multiple clear statements amounted to a judicial confession that Hebert was not in Industrial’s course and scope, reversed the trial court on that issue, rendered judgment that Hebert was not in the course and scope of Industrial employment, affirmed the special-damages award, and remanded for a possible workers’ compensation offset.
Issues
| Issue | Plaintiff's Argument (Hebert) | Defendant's Argument (Industrial) | Held |
|---|---|---|---|
| Whether Industrial judicially confessed Hebert was not in its course and scope, precluding dispute at trial | Industrial repeatedly admitted Hebert was doing GMI work and not Industrial’s work; those statements should bind Industrial and entitle plaintiffs to summary judgment | Statements were alternative arguments or tactical; not intended as a binding waiver; employment status remained contested | Court held Industrial’s repeated, unequivocal statements were a judicial confession that Hebert was not in Industrial’s course and scope and granted summary judgment for plaintiffs |
| Admissibility of Industrial’s prior statements (statement of contested facts / uncontested facts) | Excluded admissions were high probative value and should have been admitted; exclusion prejudiced plaintiffs | Argued statements were not binding confessions or were made for alternative pleading purposes | Court found exclusion was legal error; the statements were admissible and should have been applied as judicial confession |
| Denial of directed verdict on course-and-scope issue | Evidence (including Industrial’s admissions and witness testimony) overwhelmingly showed Hebert was not acting in course and scope; directed verdict should have been granted | Evidence created factual issues for jury; denial proper | Court concluded that, with the admissions and other evidence, reasonable jurors could not have reached a contrary verdict and rendered judgment Hebert was not in course and scope |
| Special damages sufficiency/challenge to amount awarded ($1,500,000 vs claimed $1,782,826.99) | Jury should have awarded the higher, undisputed amount | Life-care and future-loss items were speculative; jury properly discounted some items | Court affirmed the $1,500,000 award as within jury discretion and not manifestly erroneous |
Key Cases Cited
- Hebert v. Richard, 72 So.3d 892 (La. App. 3 Cir. 2011) (prior appellate opinion reversing summary judgment on borrowed-servant issue)
- Ramelow v. Bd. of Trustees of the Univ. of La. Sys., 870 So.2d 415 (La. App. 3 Cir. 2004) (judicial confession constitutes full proof against party who made it)
- C.T. Traina, Inc. v. Sunshine Plaza, Inc., 861 So.2d 156 (La. 2003) (attorney/mandatary statements bind client as judicial confession)
- Bennett v. Porter, 58 So.3d 663 (La. App. 3 Cir. 2011) (judicial confession must be applied in the case where made)
- Ryan v. Zurich Am. Ins. Co., 988 So.2d 214 (La. 2008) (factfinder may accept or reject expert opinion; common sense substitute allowed)