LYNETTE THOMAS WIFE OF AND LEROY THOMAS v. OWE INSURANCE COMPANY GEICO GENERAL INSURANCE COMPANY AND SOUTHERN PRIORITY LOGISTICS CORP (2025)

Plaintiffs, Lynette Thomas, Chesarae Thomas, Joel Slack, Michael Short, Sr., Joey Lee, Melissa Mason, Corey Tillman, and Demetrice London, appeal the trial court's judgment which granted the motion for summary judgment filed by defendant, Southern Priority Logistics Corporation (“Southern”), on the issue of direct negligence. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2016, Marco Cardenas worked as a delivery driver for Southern, tendering deliveries in the New Orleans area to Southern's customers in his own vehicle.¹ On the morning of November 12, 2016, Mr. Cardenas accepted a delivery job. He picked up a package from 5616 Salmen Street in Jefferson Parish and delivered it to Louis Armstrong International Airport in Kenner. After leaving the airport, Mr. Cardenas was driving on U.S. Highway 61 when he allegedly lost consciousness. His car crossed over into oncoming traffic and struck a vehicle being driven by Leroy Thomas and occupied by his wife, Lynette Thomas. Mr. Cardenas died four days later on November 16, 2016.

Mr. and Mrs. Thomas filed suit against Southern, its insurer, and Mr. Cardenas’ insurer for damages they sustained as a result of the accident. Specifically, Mr. and Mrs. Thomas claimed Southern was vicariously liable for Mr. Cardenas’ actions, and directly negligent in the following particulars: failing to require proper medical testing and physical examinations of Mr. Cardenas; allowing Mr. Cardenas to make deliveries while knowing he had previously lost consciousness while operating a vehicle; failing to take reasonable and appropriate actions to assure that Mr. Cardenas was mentally and physically competent to safely operate a vehicle; and failing to properly train and supervise Mr. Cardenas.²

On May 11, 2022, the trial court granted Southern's motion for partial summary judgment on the issue of vicarious liability. The trial court found that at the time of the accident, Mr. Cardenas was not in the course and scope of his assignment by Southern. This Court affirmed, finding that at the time of the accident, Mr. Cardenas had completed delivery of the package. This Court found there was no evidence that he accepted another delivery or that he was conducting any further business on behalf of Southern at the time of the accident. Thomas v. Owe Ins. Co., 22-586 (La. App. 5 Cir. 10/4/23), 374 So.3d 157, 164.

Subsequently, on November 15, 2023, Southern filed a motion for summary judgment, relative to the remaining direct negligence claims. Southern argued Mr. Cardenas was an independent contractor and it had no duty to retain and adequately train an independent contractor. Further, Southern asserted that the accident occurred as a result of Mr. Cardenas’ unexplained unconsciousness, and there is no evidence that Southern knew or should have known that he was going to pass out.

Plaintiffs filed a cross-motion for partial summary judgment. They argued Mr. Cardenas was an employee of Southern, rather than an independent contractor, and Southern had a duty to exercise reasonable care in making sure Mr. Cardenas could complete his job without harming others. Plaintiffs argued that the affidavit of Olga Paz Cardenas, Mr. Cardenas’ wife, attached in support of their cross-motion for summary judgment, shows that Southern knew Mr. Cardenas had health issues, including a history of passing out, and was involved in prior automobile accidents.

In opposition to the cross-motion for partial summary judgment, Southern objected to Mrs. Cardenas’ affidavit for lack of personal knowledge. Southern also argued that it only had knowledge of Mr. Cardenas’ involvement in an accident on June 14, 2014, but did not learn about it until March 1, 2016.

Following a hearing on the motions for summary judgment, the trial court signed a written judgment on March 21, 2024, granting Southern's motion for summary judgment and dismissing plaintiffs’ claims. The judgment also overruled Southern's objection to Mrs. Cardenas’ affidavit. Upon an Order from this Court, the trial court signed a new judgment on December 18, 2024, whereby it granted Southern's motion for summary judgment, dismissed plaintiffs’ claims with prejudice, and denied plaintiffs’ cross-motion for partial summary judgment.

LAW AND ANALYSIS

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Varrecchio v. Lemoine Company, 23-603 (La. App. 5 Cir. 1/31/24), 381 So.3d 210, 214. A motion for summary judgment should be granted “if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2).

The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claims. Id. Thereafter, the burden shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Caminita for & on Behalf of Caminita v. Roman Cath. Church of Archdiocese of New Orleans, 20-54 (La. App. 5 Cir. 7/8/20), 299 So.3d 1269, 1272. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. Id. Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

The decision as to the propriety to grant a motion for summary judgment must be made with reference to the substantive law applicable to the case. Vincent v. Nat'l Gen. Ins. Co., 21-227 (La. App. 5 Cir. 10/13/21), 330 So.3d 378, 381.

On appeal, plaintiffs argue that the jurisprudence has established that when an employer hires an employee who in the performance of his duties will have a unique opportunity to commit a tort against a third party, the employer has a duty to exercise reasonable care in the selection of that employee. Plaintiffs assert that Southern is subject to this rule since every time Mr. Cardenas was dispatched to drive, he was provided with a unique opportunity to cause harm to others on public roadways. According to plaintiffs, Mrs. Cardenas’ affidavit creates a genuine issue of material fact about whether Southern had knowledge that Mr. Cardenas was a “dangerous driver.” Plaintiffs argue that Southern had a duty to the general public to protect them from dangerous drivers in their employment, and by knowing of Mr. Cardenas’ medical history and history of car accidents and still employing him, Southern gave him a unique opportunity to create the wrongdoing.

A claim against an employer for the torts of an employee based on the employer's alleged direct negligence in hiring, retaining, or supervising the employee generally is governed by the same duty-risk analysis used for all negligence cases in Louisiana. Kelley v. Dyson, 08-1202 (La. App. 5 Cir. 3/24/09), 10 So.3d 283, 287, citing Griffin v. Kmart Corp., 00-1334 (La. App. 5 Cir. 11/28/00), 776 So.2d 1226, 1231. When an employer hires an employee who in the performance of his duties will have a unique opportunity to commit a tort against a third party, he has a duty to exercise reasonable care in the selection of that employee. Kelley, supra.

This rule is applicable when there is an employer/employee relationship. In the present case, the parties dispute whether Mr. Cardenas was an employee or an independent contractor. Though the trial court did not make a finding as to Mr. Cardenas’ status as either an employee or an independent contractor, we find it necessary to do so in our de novo review of this matter.

Was Mr. Cardenas an independent contractor or an employee of Southern?

The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Ocampo v. Maronge, 17-403 (La. App. 5 Cir. 12/27/17), 237 So.3d 627, 632-33, writ denied, 18-0314 (La. 4/16/18), 240 So.3d 920; Collins v. Home Depot, U.S.A., Inc., 15-199 (La. App. 5 Cir. 12/9/15), 182 So.3d 324, 329-30. The term independent contractor connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants. Hickman v. S. Pac. Transp. Co., 262 La. 102, 262 So.2d 385, 390 (1972). The following factors are relevant in determining whether the relationship of principal and independent contractor exists: (1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor's own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. Ocampo, 237 So.3d at 633.

Where the essence of an independent contractor is freedom of action and choice, the essence of the employer-employee relationship, by contrast, is the employer's right to control the employee. Id., citing Hillman v. Comm-Care, Inc., 01-1140, (La. 1/15/02), 805 So.2d 1157, 1162. The independent nature of the work turns not on the supervision or control actually exercised, but whether, based on the nature of the relationship, the right to do so exists. Hickman, 262 So.2d at 391.

Southern argued in its motion for summary judgment that Mr. Cardenas was an independent contractor, not an employee. Southern asserted that the Transportation Agreement signed by Mr. Cardenas refers to him as an independent contractor, and he received a Form 1099, not a W-2. Further, Mr. Cardenas drove his own car, determined his own delivery routes, and made his own schedule.

Plaintiffs claimed that Southern asserted control over Mr. Cardenas as an employer does to an employee by setting the pick-up and delivery locations, pickup times, and expected delivery times. They also argued that Southern required that Mr. Cardenas meet a quarterly controllable on time performance percentage of 99.6%, and dictated the order in which the driver should proceed down the route for multiple deliveries. Plaintiffs argued the deliveries had to be made in accordance with the customer's job specifications.

Mr. Cardenas signed a “Transportation Agreement” when he first contracted with Louisiana Consulting and Training Corporation. In several places therein, the agreement is referred to as an “Independent Contractor Agreement.” The agreement refers to Mr. Cardenas as a “contractor” and states that he is responsible for providing his own vehicle and maintaining his own insurance. The rate addendum provides the rate for standard deliveries within 15 miles of the company warehouse, and provides additional rates depending on the circumstances. The agreement notes that the rate addendum set forth in the agreement shall continue for the remaining one-year term of the current “Independent Contractor Agreement,” and for successive periods of one year until it is terminated by either party.

As to the job specifications, the agreement notes that pickups must occur immediately after the dispatch is received, and deliveries must be made no later than “the deadline time.” Before the contractor can leave the pick-up location, he should tell the dispatcher of any changes in the delivery shipment and any delays. Upon delivery, the contractor must notify dispatching if there are any delays. After delivery, the contractor must call the dispatcher within 10 minutes to give the dispatcher the time the shipment was delivered, the name of the person signing for the shipment, and the department the shipment was delivered too. The agreement also lists the appearance requirements of the contractor, specifically that he must be in a clean collared shirt, clean pants or walking shorts, and clean shoes. He must maintain a professional and neat appearance. As to “Quality Metrics,” the contractor is required “to meet a quarterly controllable ontime performance and must be 99.60% of total activities performed.”

Southern's representative and current owner, Mr. Vernon W. William Pierot, testified that he understood all the delivery drivers to be independent contractors. There was a required amount of insurance the drivers had to have that was screened by Mr. Pierot and his son. He stated that only himself, his wife, and his son received W-2's. To his knowledge, Southern never gave Mr. Cardenas or any of the delivery drivers specified routes, and the drivers could go from pick-up to a delivery destination by any route they chose. As to pay, he testified that local jobs were paid per mile. Generally, it was standard pay per job, but under certain circumstances, the drivers could negotiate their pay. Mr. Cardenas was contacted about jobs through a dispatcher. When Southern acquired the company, it was Mr. Pierot's understanding that as independent contractors, the drivers could accept or decline jobs. They did not have to work at any point, but were available to work. Mr. Pierot testified that Mr. Cardenas could and did decline jobs; however, there was no documentation of this since when a driver declines a job, Southern just moved on to the next available driver. He stated that the drivers were required to look at their deliveries to make sure they matched the items that were supposed to be delivered. Also, the drivers had to meet all the requirements that were outlined in UPS's supplier job specifications. He stated that the delivery driver should also let the dispatcher know if he or she can't meet a deadline due to circumstances.

Based on the evidence presented, we find that no genuine issues of material fact remain to contradict that Mr. Cardenas was an independent contractor, rather than an employee of Southern. There is a valid contract between the parties. It was undisputed that Mr. Cardenas was able to decline a job if he chose to do so. Mr. Cardenas utilized his own vehicle with his own insurance to make the deliveries. Though timeliness was required by the terms of the agreement, there was no set route for the deliveries; Mr. Cardenas could determine his own routes. He was paid based on the mileage per job, with a rate for standard deliveries in the contract, and he received a Form 1099. In the end, considering the flexibility Mr. Cardenas had both with his schedule and carrying out the deliveries, we find that the evidence presented only supports a conclusion that Mr. Cardenas was an independent contractor, rather than an employee of Southern.

Was Southern negligent in entering into an independent contractor agreement with Mr. Cardenas?

The jurisprudence has recognized that one who contracts with an irresponsible independent contractor may be independently negligent. M.P. v. Am. Econ. Ins. Co., 23-338 (La. App. 5 Cir. 11/16/23), 377 So.3d 798, 803, writ denied, 23-01656 (La. 2/14/24), 379 So.3d 33; Certified Cleaning & Restoration, Inc. v. Lafayette Ins. Co., 10-948 (La. App. 5 Cir. 6/14/11), 67 So.3d 1277, 1282, writ granted in part and remanded on other grounds, 11-2174 (La. 11/18/11), 75 So.3d 466; Lafayette Steel Erector, Inc. v. G. Kendrick, LLC, 22-0895 (La. App. 1 Cir. 8/30/23), 375 So.3d 507, 514, writ denied, 23-01322 (La. 12/19/23), 375 So.3d 415; Evans v. Allstate Insurance Co., 194 So.2d 762, 767 (La. App. 1 Cir. 1967); Hemphill v. State Farm Ins. Co., 472 So.2d 320, 324 (La. App. 3 Cir. 1985). To determine whether a principal is negligent for contracting with an irresponsible independent contractor, the court must consider the principal's knowledge at the time of the contracting. Certified Cleaning, 67 So.3d at 1282-83. A claim for negligent contracting with an independent contractor is cognizable only if the claimant can show that the principal had knowledge when it contracted with the independent contractor that the independent contractor was irresponsible; negligent conduct that occurs after entering into the contract with the independent contractor is not determinative of the claim. Lafayette Steel, 375 So.3d at 515, citing Guillory v. Conoco, Inc., Continental Oil Co., 521 So.2d 1220, 1224-25 (La. App. 3 Cir. 1988), writ denied, 526 So.2d 801 (La. 1988).

However, this jurisprudential standard has generally been applied only when the independent contractor is in the process of fulfilling his contractual duties. As already noted, and as determined by this Court in its prior opinion, at the time of the accident, Mr. Cardenas was not in the course and scope of his assignment by Southern. Mr. Cardenas had completed his delivery, had not received any new delivery assignment, and was not conducting any other business on behalf of Southern at the time of the accident. Thomas, 374 So.3d at 164. Nevertheless, even if applicable, based on the evidence presented, we find that no genuine issues of material fact remain in support of plaintiffs’ allegations that Southern knew Mr. Cardenas was an “irresponsible” independent contractor at the time it acquired the company.

According to the signed Stock Purchase Agreement, Debra Pierot, Mr. Pierot's wife, acquired the company effective on July 1, 2015. In Mr. Pierot's deposition, he stated that prior to acquiring the company, he met with all of the drivers. He did not seek the drivers’ medical history, investigate their driving records, nor require that they undergo drug testing. Mr. Pierot knew the drivers previously had background checks when obtaining their STA and TWIC clearances.³ He spoke with the customers to see if they had any issues with any of the drivers. He also met with the previous owner, Ralph Barlow, to discuss the business; Mr. Barlow provided that everything was going along smoothly and only mentioned one “fender bender” while he owned the business. Mr. Barlow did not convey any information to Mr. Pierot about Mr. Cardenas’ prior accidents. None of the records he received when he purchased the company had any accident reports concerning any of the contracted drivers. Mr. Pierot found no issues during his “investigation.”

Mr. Pierot met with Mr. Cardenas two or three times prior to acquiring the company, and used his assessment of him at the time—which was that he was dealing with a work-responsible individual that conducted himself in a professional manner—in deciding to allow him to continue making deliveries for Southern. Mr. Pierot did not know until March 2016, when he received a letter from an attorney related to the matter, that Mr. Cardenas had been involved in a car accident in June 2014 and was involved in a personal injury case related thereto. Mr. Pierot did speak with Mr. Cardenas about the lawsuit and was told by Mr. Cardenas that he was going through the motions based on the advice of his counsel for financial reasons, and that he was ok. Mr. Pierot noted that Mr. Cardenas had been working for the previous 8 months, and that he had no reason to believe that everything was not ok. He did not recall asking him for any medical records when he learned of the prior accident.

Plaintiffs rely on Mrs. Cardenas’ affidavit to establish that genuine issues of material fact remain as to what Southern knew about Mr. Cardenas when Southern acquired the company. In her affidavit, Mrs. Cardenas stated Mr. Cardenas previously lost consciousness while driving for Southern and ran off the road, injuring himself. She asserted Southern knew about this accident and required that he provide a doctor's release before he could return to work. She alleged that in 2012, Mr. Cardenas’ doctor told him not to operate a vehicle, but could not determine why he had lost consciousness. Mrs. Cardenas stated that Mr. Cardenas needed to return to work for Southern because he needed the income. She also stated that he was involved in accidents in 2011, 2014, and 2015 and Southern was aware of these accidents because he reported them and sustained injuries, and because his vehicle was damaged and he could not drive until it was repaired.

Upon review, we find that Mrs. Cardenas’ affidavit is facially deficient and thus was improperly considered by the trial court. Although parts of the affidavit were based on Mrs. Cardenas’ personal knowledge, the affidavit fails to show: (1) how the allegations contained therein regarding Southern's knowledge of Mr. Cardenas’ prior accidents and medical history are based on Mrs. Cardenas’ personal knowledge; and (2) when these allegations allegedly came to Southern's knowledge. Further, the 2011, 2012, and 2014 accidents described in the affidavit occurred prior to the Pierots’ ownership of Southern. Accordingly, given the lack of evidence in the affidavit as to Mrs. Cardenas’ personal knowledge of said specific facts, and the lack of information as to when such information allegedly came to Southern's knowledge, we do not find that Mrs. Cardenas’ affidavit creates a genuine issue of material fact regarding whether Southern knew Mr. Cardenas was an “irresponsible” driver when it acquired the company in 2015, or show that plaintiffs can meet their burden of proof at trial.

CONCLUSION

In conclusion, upon de novo review, for the foregoing reasons, we find that plaintiffs failed to meet their burden of producing factual support sufficient to establish the existence of a genuine issue of material fact on their direct negligence claims, and that Southern is not entitled to judgment as a matter of law thereon. Accordingly, the trial court did not err in granting Southern's motion for summary judgment on the issue of direct negligence and in dismissing plaintiffs’ suit with prejudice.

DECREE

The trial court's judgment which granted Southern's motion for summary judgment and dismissed plaintiffs’ suit against Southern with prejudice is affirmed.

AFFIRMED

FIFTH CIRCUIT

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SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

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FOOTNOTES

1.   Mr. Cardenas signed a “Transportation Agreement” with Louisiana Consulting and Training Corporation in 2011. Effective July 1, 2015, Debra Pierot purchased the stock and assets of Louisiana Consulting and Training Corporation. The company's name was subsequently changed to Southern Priority Logistics Corporation.

2.   Mr. Thomas subsequently died and his heirs were substituted as parties plaintiff.

3.   STA stands for “Security Threat Assessment.” TWIC stands for “Transportation Worker Identification Credential.”

JUDE G. GRAVOIS JUDGE