329 So.3d 831
La. Ct. App.2021Background
- On April 4, 2018, co-employee Ernesto Rivera struck Kenneth Chevis on the hardhat with a piece of scaffolding while both were working for Apache Industrial Services, Inc.
- Chevis sued Rivera and Apache alleging intentional and negligent torts; he moved for partial summary judgment that the act was intentional and Apache vicariously liable.
- Apache moved for summary judgment arguing workers' compensation was Chevis's exclusive remedy because the conduct was not an "intentional act" under the intentional-act exception.
- The trial court granted Chevis's partial summary judgment (finding an intentional tort and employer vicarious liability) and denied Apache's summary judgment; the court certified that ruling as final.
- Apache appealed. The First Circuit reviewed the competing depositions and an affidavit that presented conflicting accounts of whether Rivera "tapped" or "pushed/hit" Chevis and whether the act was work-related or personal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rivera's conduct constituted an "intentional act" removing workers' comp exclusivity | Chevis: under Caudle (battery), Rivera intended an offensive/harmful contact; intent need not be malicious | Apache: Bazley standard controls — intent requires conscious desire or substantial certainty of harm; no evidence of that here | Genuine factual dispute over intent exists; summary judgment inappropriate; appellate court reversed the trial court's grant that the act was an intentional tort |
| Whether Apache's motion for summary judgment (dismissal on workers' comp exclusivity) should have been granted | Chevis: intentional-act exception applies so suit may proceed | Apache: exclusivity applies absent intentional act; SJ should dismiss the tort claim | Denial of Apache's summary judgment affirmed because factual disputes about intent preclude disposition on SJ |
| Whether Apache is vicariously liable for Rivera's act | Chevis: employer vicariously liable if co-employee committed intentional tort | Apache: premature to impose vicarious liability while intent is unresolved | Trial court's finding of vicarious liability vacated as premature |
Key Cases Cited
- Bazley v. Tortorich, 397 So. 2d 475 (La. 1981) (defines intent for the intentional-act exception: conscious desire or knowledge that harm is substantially certain)
- Caudle v. Betts, 512 So. 2d 389 (La. 1987) (applies battery principles to intentional-act exception; intent to make offensive contact suffices)
- Cole v. State Dept. of Public Safety & Corrections, 825 So. 2d 1134 (La. 2002) (limits application of intentional-act exception; distinguishes negligent/reckless conduct)
- Miller v. Sattler Supply Co., 132 So. 3d 386 (La. 2014) (mere probability or knowledge of risk does not establish substantial-certainty intent)
- Stanley v. Airgas-Southwest, Inc., 171 So. 3d 915 (La. 2015) ("certain" means near-inevitable; substantial-certainty is a high standard)
- Degeyter v. First American Title Co., 252 So. 3d 475 (La. 2018) (summary judgment inappropriate where resolution requires weighing credibility, motive, or intent)