AGUILLARD v. STATE (2026)

In these consolidated appeals, Luke Aguillard and Trever Bertrand ¹ (referred to collectively as “Plaintiffs”) appeal from a trial court judgment granting summary judgment in favor of Defendants, State of Louisiana, Department of Public Safety and Corrections (“DPSC”), and Howard J. Desselle (referred to collectively as “Defendants”), and dismissing their lawsuits on the basis of Defendants’ immunity from liability pursuant to La.R.S. 29:735(A)(1). Plaintiffs also appeal from the trial court's denial of their cross motions for partial summary judgment as to liability. For the reasons herein, we affirm.

FACTS AND PROCEDURAL HISTORY

The accident giving rise to this litigation occurred during the existence of a state-wide emergency declaration by Governor John Bel Edwards prior to Hurricane Laura's landfall on August 27, 2020. On August 25, 2020, Master Trooper (“MT”) Howard Desselle, a Louisiana State Trooper and a member of the Louisiana State Police Mobile Field Force (“MFF”), struck a vehicle that was operated by Mr. Aguillard and in which Mr. Bertrand was a passenger. MT Desselle, who was traveling in a convoy of other MFF vehicles, was entering U.S. Highway 190 from the parking lot of a restaurant in Eunice when he drove his state-assigned vehicle directly into the path of Mr. Aguillard's vehicle. Plaintiffs each filed suit against DPSC and MT Desselle, and their suits were consolidated for trial purposes.²

In answering Plaintiffs’ petitions, Defendants’ affirmatively pled that they were immune from liability pursuant to La.R.S. 29:735. Defendants subsequently filed a motion for summary judgment, arguing that they were immune from liability pursuant to La.R.S. 29:735(A)(1) of the Louisiana Homeland Security and Emergency Assistance and Disaster Act (the “Act”). Mr. Bertrand opposed the motion and moved for partial summary judgment, arguing that MT Desselle was not immune from liability at the time of the accident as he was not engaged in emergency preparedness activities. Mr. Aguillard also opposed Defendants’ motion and filed a motion for partial summary judgment, arguing that he was entitled to judgment based on MT Desselle's admission that he was at fault in causing the accident. Mr. Aguillard further adopted by reference Mr. Bertrand's motion and exhibits.

The motions were heard on June 9, 2025, after which the trial court took the matter under advisement. In its June 13, 2025 reasons for judgment, the trial court noted that only Defendants’ and Mr. Bertrand's motions were heard and that Mr. Aguillard had adopted Mr. Bertrand's motion. In reaching its decision, the trial court stated:

In reference to DEFENDANTS’ Motion for Summary Judgment, the Court finds that DEFENDANTS established that there is no genuine issue of material fact, accordingly the immunity provisions of [the Act] does apply. The burden then shifted for PLAINTIFFS to show an issue that the immunity provisions does [sic] not apply. PLAINTIFFS have not shown or produced factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. The motion is hereby GRANTED.

In reference to PLAINTIFFS’ Motion for Partial Summary Judgment, having rendered the decision on DEFENDANTS’ Motion for Summary Judgment, this motion is now MOOT.

Judgment was rendered in this matter on July 1, 2025, granting Defendants’ motion and dismissing Plaintiffs’ claims against them with prejudice. The judgment also denied Plaintiffs’ motion as being moot. It is from this judgment that Plaintiffs appeal.

On appeal, Mr. Bertrand raises one assignment of error:

The trial court committed reversible error by denying the Motion for Partial Summary Judgment filed on behalf of BERTRAND on the issue of liability, and granting the Motion for Summary Judgment filed on behalf of DESSELLE, which granted immunity to the latter, who would otherwise be liable to BERTRAND under the laws of the state. The court found that he (DESSELLE) was engaged in emergency preparedness activities while leaving a restaurant in a non-emergency situation.

Mr. Aguillard raises two assignments of error:

1. Immunity statutes are strictly construed against the party claiming the immunity thus the Trial Court erred by concluding that the fact of Trooper Desselle's careless operation, given his 30 years as a Louisiana State Trooper, did not constitute an issue fact [sic] which once [sic] could conclude to be evidence of willful misconduct or gross negligence.

2. Aguillard adopts by reference the assignments of error put forth by Trevor [sic] Nertrand [sic] in No: 25 00691-CA.

OPINION

In Reed obo Cope v. Black Star Energy Services, LLC, 23-148, pp. 4-5 (La.App. 3 Cir. 11/22/23), 374 So.3d 419, 422, this court addressed the standard of appellate review applied to trial court decisions granting summary judgment:

Appellate courts review summary judgments de novo under the same criteria that governed the trial court's consideration of whether or not summary judgment was appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La. 1991). Summary judgment is proper if the motion, memorandum, and supporting documents show that there is no genuine issue of as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(A)(3).

Louisiana Code of Civil Procedure Article 966 charges the moving party with the burden of proving that summary judgment is appropriate. In doing so, the moving party's supporting documentation must be sufficient to establish that no genuine issue of material fact remains at stake. Townley v. City of Iowa, 97-493 (La. App. 3 Cir. 10/29/97), 702 So.2d 323. Once the mover makes a prima facie showing that there is no genuine issue as to a material fact and that summary judgment should be granted, the burden shifts to the non-mover. Id.

Pursuant to La.R.S. 29:735(A)(1) (emphasis added), the state and its agencies are afforded total immunity and their employees and agents are afforded qualified immunity from liability while engaged in emergency preparedness or recovery activities under the Act:

Neither the state nor any political subdivision thereof, nor other state agencies, nor, except in case of willful misconduct, the employees or representatives of any of them engaged in any homeland security and emergency preparedness and recovery activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.

Pursuant to La.R.S. 29:723(4), a “disaster” results from “a natural or man-made event which causes loss of life, injury, and property damage, including” hurricanes. An “emergency” includes “[t]he actual or threatened condition which has been or may be created by a disaster[.]” La.R.S. 29:723(6)(a). “ ‘Emergency preparedness’ means the mitigation of, preparation for, response to, and the recovery from emergencies or disasters.” La.R.S. 29:723(7).

As La.R.S. 29:735(A)(1) is an affirmative defense, the burden of proof on the motion for summary judgment rests with Defendants.

A claim of emergency-preparedness immunity under La. R.S. 29:735 is treated as an affirmative defense under Louisiana law. Banks v. Parish of Jefferson, 2008-27 (La. App. 5 Cir. 6/19/08), 990 So.2d 26, 30, writ denied, 2008-1625 (La. 10/24/08), 992 So.2d 1043. Thus, despite the plaintiff's burden at trial to prove the defendants’ liability for the claims alleged, the defendants bear the burden of proving the applicability of the emergency-preparedness immunity provision to the plaintiffs claims. See Monteville v. Terrebonne Parish Consolidated Government, 567 So.2d 1097,1106 (La. 1990); Banks, 990 So.3d at 30. Moreover, immunity statutes are strictly construed against the party claiming the immunity. Monteville, 567 So.2d at 1101.

Thibodeaux v. Am. Alt. Ins. Corp., 24-383, pp. 5-6 (La.App. 1 Cir. 12/20/24) (unpublished opinion).

Once Defendants establish the application of La.R.S. 29:735(A)(1), “the burden shifts to a plaintiff to establish a genuine issue of material fact exists as to the applicability of an exception.” Bowman v. Williams, 26-187, p. 3 (La. 4/28/26), 431 So.3d 1189, 1192 (per curiam).

In Bowman, the supreme court recently overruled several opinions to find that “[w]hether a defendant's actions constitute willful misconduct is a question of fact[,]” rather than a question of law.³ Id. at 1191. In addressing what conduct qualifies as willful misconduct under La.R.S. 29:735(A)(1), it stated:

Only the most egregious conduct exhibiting an active desire to cause harm, or a callous indifference to the risk of potential harm from flagrantly bad conduct, rises to the level of willful misconduct. See McQuirter v. State through Louisiana Dept. of Public Safety and Corrs. Elayn Hunt Corr. Ctr., 20-1192, p. 2 (La. 1/12/21), 308 So.3d 285, 285-86. The risk must be so obvious and so great as to impute an awareness upon the actor that it is highly probable, amounting almost to a willingness, that harm would follow. See Koonce v. St. Paul Fire & Marine Ins. Co., 15-0031 (La. 8/5/15), 172 So.3d 1101, 1106 (quoting Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907, 916 (La.App. 3d Cir. 1975)). Thus, the term willful misconduct applies “to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated ․ as if harm was intended.” McQuirter, 20-1192, p. 2, 308 So.2d at 285 (quoting Koonce, supra). A reasoned, but nevertheless erroneous, assessment of the risk does not rise to the level of willful misconduct. Cf. Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, p. 9 (La. 7/5/94), 639 So.2d 216, 221.

Whether a defendant's actions constitute willful misconduct is a question of fact. Nevertheless, “summary judgment may be granted when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 29 (La. 7/5/94), 639 So.2d 730, 752; Dixon v. Louisiana State Police, 22-0013, p. 9 (La.App. 4 Cir. 3/2/22), 336 So.3d 631, 638 (“reckless disregard normally is a factual question resolved by a trial on the merits; however, when there are no material facts in dispute, summary judgment may be appropriate”). Once a movant establishes an immunity statute applies as an affirmative defense, the burden shifts to a plaintiff to establish a genuine issue of material fact exists as to the applicability of an exception. See Citron v. Gentilly Carnival Club, Inc., 14-1096, pp. (La.App. 4 Cir. 4/15/15), 165 So.3d 304, 314. A genuine issue is one as to which reasonable persons could disagree - “if reasonable persons could reach only one conclusion, there is no need for a trial on that issue.” Smith, 93-2512, p. 27, 639 So.2d at 751. Whether a fact is material turns on the applicable substantive law. Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La.App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith, 93-2512, p. 27, 639 So.2d at 751). Evidence establishing a callous indifference to a highly probable risk of harm must therefore exist before a jury could reasonably determine a defendant's actions constitute willful misconduct. In the absence of such evidence, a court may conclude that no reasonable juror could find such actions constituted willful misconduct.

Id. at 1191-92 (alteration in original) (footnote omitted).

Defendants’ properly submitted summary judgment evidence included a copy of Governor John Bel Edward's executive proclamation, MT Desselle's deposition, and the affidavit of Louisiana State Trooper Scott Coco. Governor Edward's proclamation declared a state-wide state of emergency due to Tropical Storm Laura and Tropical Depression 14, lasting from August 21, 2020 to September 20, 2020.

MT Desselle testified extensively about his duties during the declared emergency by Governor Edwards. On the day of the accident, he was in his state-assigned mobile unit, in his designated MFF uniform, and was driving his unit from a designated emergency site back to State Police Headquarters in Baton Rouge to regroup for the next assignment during the emergency. The MFF's specific duties that day were for the officers comprising the MFF to familiarize themselves with Lake Charles's landmarks and emergency facilities in preparation for emergency response to Hurricane Laura and to examine the damage that had already occurred due to the early rains/storms preceding its landfall.

MT Desselle was specifically questioned regarding the timeline of his duties:

Q. So you said you went ․ the Mobile Field Force assembled in Baton Rouge at state police headquarters; right?

A. Right.

Q. Then you went to Lake Charles, before the hurricane, for the day and came back to Baton Rouge; right?

A. One day.

Q. Yeah.

A. One day.

Q. And then, after that, you went back to Lake Charles after the hurricane hit and stayed there for --

A. Right. We stayed in Lake Charles.

Q.  Right — for a week or two?

A. At least.

MT Desselle testified that he was on duty, working emergency preparedness and/or recovery the entire day of the accident and for at least two weeks thereafter:

Q. Okay. Now, from the time that the Mobile Field Force first assembled in Baton Rouge to the time that you were relieved in -- after -- after the first couple of weeks in Lake Charles, were you always under the control of the state police?

A. Always.

Additionally, MT Desselle testified that the reason the convoy of MFF troopers stopped to eat in Eunice just prior to the accident was because they were not going to make it back to the State Police Headquarters in time to eat the meal being provided for them at that location.

MT Desselle admitted that he was at fault in causing the accident. When Mr. Bertrand's counsel asked if “[f]rom a layman's viewpoint,” he believed that he “did anything wrong” in causing the accident, he stated:

A. Well, it was an accident.

Q. Well, I don't think you were intentional.

A. Yeah. No, I didn't intentionally do anything wrong.

Q. Oh, I got you. Nobody's claiming that.

A. Yeah. Yeah. But I did pull out in front of a vehicle that had - that had the right of way.

The affidavit of Trooper Coco, who travelled with MT Desselle the day of the accident, supports the facts as testified to by MT Desselle. Specifically he stated:

On August 25, 2020, which was two days prior to Hurricane Laura's landfall, the members of the MFF were instructed by our lieutenant to make a day trip to Lake Charles to familiarize ourselves with the location of hospitals, jails, and other critical infrastructure there, so that we would be ready to quickly and efficiently respond to situations that could arise during recovery operations following Hurricane Laura.

Trooper Coco went on to aver that “[t]he sole purpose for our trip on August 25, 2020, was to prepare for disaster relief operations following Hurricane Laura's impending landfall[ ]” and that he and MT Desselle were “acting within the course and scope of [their] employment as Louisiana State Troopers with DPSC at all times during our trip from Baton Rouge to Lake Charles and back to Baton Rouge on August 25, 2020.” Finally, he stated that “[a]fter Hurricane Laura made landfall on August 27, 2020, the MFF returned to Lake Charles to conduct recovery operations.” Regarding the accident, Trooper Coco stated that he was “not aware of any information suggesting that Master Trooper Desselle intended for our unit to collide with” Mr. Aguillard's vehicle and that “the collision was accidental.”

In opposition to Defendants’ motion, Plaintiffs pointed out that MT Desselle testified that he “didn't think there was an emergency going on right now, an imminent emergency[ ]” at the time he was leaving the restaurant. MT Desselle further stated, “Well, I think – I think the governor said it was an emergency, because we weren't even preparing for a hurricane.” He said that anytime he “put on a Mobile Field Force uniform, I consider it an emergency.” When asked, “[b]ut just because you have your black outfit on doesn't mean it's an emergency, right[,] he responded, “Well, no, but the governor thought it was an emergency.”

Plaintiffs also introduced Mr. Bertrand's affidavit, wherein he stated that the accident occurred when “without any warning,” MT Desselle's vehicle “attempted to enter the highway from the parking lot at the Hacienda Restaurant.”

In Thibodeaux, 24-383, the first circuit held that a Terrebonne Parish pump attendant tasked with servicing pumps in preparation for a hurricane pursuant to an emergency declaration was “engaged in” emergency preparedness, such that immunity under La. R.S. 29:735(A)(1) applied. Id. at 7. The worker was told by his supervisor to return home to weather the storm after he had serviced two pumps and was on his way to service a third. He had not yet turned around to begin his drive home when an accident occurred. Considering the facts and circumstances of the case, including the fact that the pump attendee was paid hazard pay from the time he left for the emergency preparedness activity until the time he returned home, the court concluded that immunity applied, even though he was beginning to return home when the accident occurred.

In Lumpkin v. Lanfair, Civil Action No. 09-6248, 2010 WL 3825427, *8 (E.D. La. 2010), the U.S. District Court for the Eastern District of Louisiana held that a member of the Tennessee Army National Guard, who was deployed to Louisiana to assist in Hurricane Gustav, was “engaged in” emergency recovery efforts as a representative of Louisiana, and therefore, was entitled to immunity under La.R.S. 29:735(A)(1) for a vehicular accident that occurred during that time. The court considered several factors in reaching its conclusion. Even though the soldier and his unit had completed their work and were in the process of leaving Louisiana, the court noted that at the time of the accident, Lanfair and his unit were in a national guard vehicle and were transporting supplies that were used in the hurricane relief effort. The court found that this activity fit squarely within “ ‘response to’ and ‘recovery from emergencies or disasters.’ ” Id. at *8.

The fifth circuit utilized a similar analysis in Rabee v. Louisiana Department of Public Safety and Corrections, 23-384 (La.App. 5 Cir. 11/2/23), 378 So.3d 71, writs denied, 23-1620, 23-1651 (La. 2/14/24), 379 So.3d 30, 34, wherein it held that La.R.S. 29:735(A)(1) provided immunity to a DPSC probation and parole officer, who rear-ended the plaintiffs’ vehicle. At the time of the accident, the officer was traveling to New Orleans to provide security for evacuees from Lake Charles following Hurricane Laura. In finding the officer immune from liability, the court stated:

The statute is clear: the State and its employees shall not be held liable for injury to the persons or damage to property when engaged in emergency preparedness activities. La. R.S. 23:735 A(l). The central issue in this case is whether driving in a State-owned car to a special assignment protecting hurricane evacuees constitutes an “emergency preparedness activity” that entitles Agent Farhud and the DPSC to immunity.

․

One of the enunciated purposes of the Disaster Act is “[t]o prepare for prompt and efficient evacuation, rescue, care, and treatment of persons victimized or threatened by disasters or emergency.” La. R.S. 29:722 A(5). The Act defines “emergency preparedness” activities to include the “response to” and the “recovery from” emergencies and disasters. La. R.S. 29:723 (6). Given DPSC's engagement in disaster relief and Agent Farhud's special assignment to protect hurricane evacuees, we find that driving to his special assignment is included within “emergency preparedness” activities, and that defendants are entitled to statutory immunity.

Finally, plaintiffs also suggest that summary judgment is inappropriate here because a determination of the vicarious liability of DPSC must be made at trial. We disagree. The “going-and-coming rule” to which plaintiffs refer does not change our immunity analysis, which is governed by the Disaster Act.

Id. at 74-75 (second alteration in original) (emphasis added).

Here, Defendants met their initial burden of proving that MT Deselle was engaged in emergency preparedness or recovery duties at the time of the collision and that Plaintiffs have failed to set forth rebuttal evidence to dispute that proof. Plaintiffs’ arguments that MT Desselle's and his fellow MFF agents’ stopping for a meal while returning to Baton Rouge was a personal choice or function not related to emergency assistance or recovery, are not compelling in the least considering the undisputed testimony that meals were provided at State Police Headquarters during the MFF's deployment for emergency services.

Further, applying several factors considered by courts in Rabee, Thibodeaux, Lumpkin, and others, such as Hebert v. Professional Outsource Services, LLC, 23-347 (La.App. 3 Cir. 2/14/24), 380 So.3d 755; and Benton v. State through Department of Children & Family Services, 20-1214 (La.App. 1 Cir. 8/13/21) (unpublished writ ruling), writ denied, 21-1815 (La. 1/26/22), 332 So.3d 82, we are compelled to grant summary judgment in favor of Defendants as MT Desselle's actions were undoubtedly within the scope of the declared emergency, he was using his state vehicle, and he was travelling between a designated worksite and his assigned lodging at State Police Headquarters. Rather than traveling to his home in Marksville, he was going to the designated staging area to await Hurricane Laura's landfall before heading back to Lake Charles to assist with recovery activities. According to his own undisputed testimony, he remained deployed, and he provided recovery services in the Lake Charles area for at least the following two weeks.

Our colleague on the fifth circuit, Judge Molaison, concurring in Rabee, 378 So.3d at 76, set out a sentiment that is appropriate here and is a clear reflection of our role as an appellate court, in that we are not legislators but, instead, are bound to apply the unambiguous and plain language of the laws enacted thereby:

I agree with the majority that La. R.S. 29:735 A(l) provides immunity to Agent Farhud and the DPSC under the facts of the case. I write separately to underscore that the very broad language of La. R.S. 29:735 lends itself to far-reaching interpretations where routine tasks, such as driving to work, become protected activities, even when there is no imminent threat to the health and safety of others. It is unclear whether such results are truly consistent with legislative intent of covering “emergency preparedness activity,” or if the statute's applicability should be further clarified.

The law in this matter compels us to reach a certain result. While cognizant of the deference owed the law as it has been written by our legislature and interpreted by the Supreme Court, I do so here with trepidation upon considering the resulting inequity our decision will have upon the plaintiffs’ causes of action. For the foregoing reasons, I reluctantly concur in the majority's disposition.

The provisions of La.R.S. 29:735(A)(1) are not ambiguous. The actions of state or local governmental officials or agents engaged in emergency preparedness or recovery efforts are, by declaration of our legislature, immune from tort liability. Applying the law as written to the undisputed facts of this case directs us to grant Defendants’ motion for summary judgment. Nothing submitted in opposition to the motion compels any other result. That this finding leaves the innocent victims of negligence with fewer or no remedies is unfortunate, but it is the decision of our legislature in weighing the competing interests of overall public safety versus individual protections from other's negligence during emergent events.

We further find that Plaintiffs have failed to establish that the immunity provided by La.R.S. 29:735(A)(1) is inapplicable to MT Desselle. Mr. Aguillard argues that MT Desselle should be held to a higher standard of care based on his thirty-years’ experience as a state trooper but cites no jurisprudence in support of this argument. However, we note that MT Desselle was already held to a heightened standard of care as a driver entering a highway from a driveway or parking lot, who was required to “yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” La.R.S. 32:124. MT Desselle's simple negligence in pulling out onto the roadway because of inattentiveness does not come close to exhibiting “the most egregious conduct exhibiting an active desire to cause harm, or a callous indifference to the risk of potential harm from flagrantly bad conduct[.]” Bowman, 431 So.3d at 1191.

Accordingly, the decision of the trial court granting Defendants’ motion for summary judgment is affirmed. Based on this finding, we need not address Plaintiffs’ assignments of error regarding the denial of their motions for partial summary judgment.

DECREE

For the forgoing reasons, the judgment of the trial court in favor of the State of Louisiana, Department of Public Safety and Corrections, and Howard J. Desselle is affirmed. The costs of this appeal are assessed equally between Luke Aguillard and Trever Bertrand.

AFFIRMED.

I respectfully dissent.

Immunity is not designed to let a trooper avoid responsibility for his carelessness when he has no need to hurry and is doing nothing but returning to his bed for the night. His conduct was merely routine at that time.

The majority ignores our obligation to construe the immunity statute strictly. “[W]hen a law confers civil immunity, such as La.R.S. 29:735, it must be strictly construed.” Murrell v. State through Dep't. of Wildlife and Fisheries, 25-320, p. 13 (La.App. 3 Cir. 11/19/25), 425 So.3d 844, 854, writ denied, 25-1600 (La. 3/18/26), 427 So.3d 1241.¹ Strict construction of a statute narrows or limits its scope.

In this case, we must construe the meaning of “engaged in ․ emergency preparedness[.]” La.RS. 29:735(A)(1). To view this strictly, we must look at when the accident happened. Was the trooper “engaged in emergency preparedness?” He was not. In my opinion, the majority errs in interpreting the language broadly, as if this were an employment, “course and scope” issue.

The majority also relies on Lumpkin v. Lanfair, 09-6248 (E.D. La. 9/30/10) (unpublished opinion) (2010 WL 3825427). But Lumpkin is a case where the court also failed to construe the statute strictly. There, a Tennessee National Guard unit was ordered to assist in Hurricane Gustav recovery efforts in Louisiana. A vehicle driven by one of the guardsmen rear-ended the plaintiff. The unit had been released from recovery efforts but was going to Mississippi to return equipment and conduct maintenance. To have immunity under La.R.S. 29:735, the guardsman had to be both an agent of Louisiana and “engaged in ․ emergency preparedness and recovery” activities.

The plaintiffs argued that the unit had been relieved of its hurricane-related deployment, was leaving the state, and had not been ordered to go to Mississippi. The defendants argued that the unit was going to Mississippi to return supplies used in the relief effort. The court ruled:

[A]t the time of the accident [the Tennessee guardsman] was a representative of the State of Louisiana engaged in “emergency preparedness.” At the time of the accident, [he] and his unit were transporting supplies that had been used in the hurricane relief effort. That conduct comfortably falls within the ambit of “response to” and “recovery from emergencies or disasters.” La.Rev.Stat. § 29:723(4)[sic].

Lumpkin, 09-6248, p. 5.

The Lumpkin court acknowledged its obligation to strictly construe the statute (quoting Banks v. Parish of Jefferson, 08-27, p. 9 (La.App. 5 Cir. 6/19/08), 990 So.2d 26, 30, stating “immunity statutes are strictly construed against the party claiming the immunity”). But then it failed to do so. Instead, it granted immunity to “promote[ ] maximum availability of out-of-state assistance and coordination with federal resources.” That is not an exercise in strict construction. A guardsman, released from deployment and leaving the state, is not “engaged” in hurricane recovery efforts. Indeed, he was specifically disengaged from those efforts. Our case is arguably weaker than Lumpkin.

Focusing on the facts here, finding that the trooper was “engaged” in emergency preparedness during the entire time he, as part of the MFF, was away from his normal duties gives the term “engaged” an expansive scope. In contrast, the MFF had completed its work for the day. Finding that leaving a restaurant parking lot with no need for urgency is protected conduct goes against the plain meaning of “engaged” in La.R.S. 29:735(A)(1). At a minimum, it constitutes a broad construction rather than the strict construction which governs our analysis.

For these reasons, I respectfully dissent.

FOOTNOTES

1.   Although the appeal record in Docket Number 25-692 lists Mr. Bertrand's first name as “Trevor,” the correct spelling according to Mr. Bertrand's In Forma Pauperis affidavit is “Trever.”

2.   Mr. Bertrand's suit, Docket Number 23-C-461, was originally filed in Acadia Parish and then transferred to St. Landry Parish. His suit named MT Desselle, the State of Louisiana, Department of Public Safety, Mr. Aguillard, and State Farm Mutual Automobile Insurance Company, Mr. Aguillard's insurer, as defendants. He later amended his suit to remove the State of Louisiana, Department of Public Safety & Corrections, as a defendant. Mr. Aguillard's suit, Docket Number 21-C-2942, was filed in St. Landry Parish and named MT Desselle and the State of Louisiana, Department of Public Safety as defendants. He later amended his petition to correctly name the State of Louisiana, Department of Public Safety & Corrections, as a defendant.

3.   Overruled were Simmons v. Hughes, 19-1389 (La.App. 1 Cir. 11/25/20), 316 So.3d 488; Llopis v. La. State Bd. of Dentistry, 17-934 (La.App. 4 Cir. 8/29/18), 255 So.3d 627; Koonce v. St. Paul Fire & Marine Ins. Co., 15-31 (La.App. 3 Cir. 8/5/15), 172 So.3d 1101; and Haab v. E. Bank Consol. Special Serv. Fire Prot. Dist. of Jefferson Par., 13-954 (La.App. 5 Cir. 5/28/14), 139 So.3d 1174.

1.   See, for example, how strict construction is applied in the insurance policy context to construe any ambiguity in favor of coverage. Cadwallader v. Allstate, 02-1637 (La. 6/27/03) 848 So.2d 577. And in the penal context, a liberal construction would make the statute apply in more cases, while a strict construction would make it apply in fewer. State v. Boniface, 369 So.2d 115, (La.1979).

KYZAR, Judge.

Bradberry, J. dissents.