Hebert v. Richard
72 So. 3d 892
La. Ct. App.2011Background
- Mr. Hebert, Industrial Helicopters, Inc. employee, fell from a helicopter during a deer-netting trip in Mexico arranged by GMI, owned by J. Oran Richard; Hebert alleges multiple defendants were negligent and seeks tort damages, workers’ compensation, and spoliation relief.
- Industrial provided the helicopter, pilot, and some support; GMI allegedly leased land and directed deer-netting activities, with little documentation of a separate payroll or contract.
- The trial court granted summary judgment in favor of the defendants on employment status/tort immunity, spoliation, and intentional tort; Hebert appeals on all three issues.
- Evidence about who paid Hebert, who controlled the activity, and whether it was within the course and scope of employment is contested, with gaps in documentation of GMI’s independent operations.
- The court must determine (i) whether Hebert was a borrowed employee at the time of injury, (ii) whether the injury arose out of and in the course of employment, (iii) whether spoliation of evidence precluded relief, and (iv) whether an intentional tort exception to workers’ compensation applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Borrowed servant status and tort immunity | Hebert disputes borrowed-employee status; seeks application of course-and-scope factors. | Industrial/GMI contend borrowed-servant status applies; both owe workers’ compensation protections | Reversed; material facts preclude summary judgment on borrowed servant and immunity |
| Intentional tort claim | If injury was substantially certain due to harness/helicopter modifications, intentional tort exists | No evidence of conscious desire or substantial certainty | Affirm summary judgment; no intentional tort |
| Spoliation of evidence | Evidence (harness, lanyard, carabiner) was not preserved; spoliation claim viable | No deliberate destruction shown; not preserved for trial | Reversed; issues of fact preclude summary judgment; remand for merits trial |
Key Cases Cited
- Perry v. Perry & Sons Vault & Grave Serv., Inc., 872 So.2d 611 (La.App. 3 Cir. 2004) (borrowed-servant and joint-enterprise distinctions in workers’ comp context)
- Humphreys v. Marquette Casualty Co., 103 So.2d 895 (La.1958) (two separate employers may share liability and protections; separate entities matter)
- Wells v. Higginbotham, 989 So.2d 848 (La.App. 2 Cir. 2008) (summary judgment considerations with course-and-scope issues)
- Mundy v. Dept. of Health and Human Resources, 593 So.2d 346 (La.1992) (mutual interdependence of course-and-scope and arising-out-of-employment concepts)
- Bazley v. Tortorich, 397 So.2d 475 (La.1981) (test for intentional act: conscious desire or substantial certainty)
- Reeves v. Structural Preservation Systems, 731 So.2d 208 (La.1999) (substantial certainty standard explained)
- Wainwright v. Moreno’s, Inc., 602 So.2d 734 (La.App. 3 Cir. 1992) (intentional tort considerations for employer knowledge of risk)
- Abney v. Exxon Corp., 755 So.2d 283 (La.App. 1 Cir. 1999) (summary judgment standards and evidentiary issues in occupational settings)
- Clark v. Division Seven, Inc., 776 So.2d 1262 (La.App. 4 Cir. 2000) (intentional tort standards in workplace injuries)