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  • Writer's pictureMary Watson Smith

SOLIDARITY: The Effect of a "Course and Scope" Admission on Employer Liability for Direct Negligence

If your practice involves personal injury claims against tortfeasing truck drivers and the trucking companies who employ them, then you are probably familiar with the defense bar’s fairly recent ploy to admit to “course and scope” (i.e., to the vicarious nature of any liability) in an employer trucking company’s answer and then to seek dismissal as a matter of law of all independent negligence claims (e.g., for negligent hiring, negligent equipping/improper maintenance, negligent supervision, negligent training, etc.) plaintiff may be asserting against the employer for the employer’s own individual negligence. The theory pushed by defense counsel is that plaintiff’s direct negligence claims against an employer are subsumed in plaintiff’s direct negligence claims against the employee-truck driver when the employer admits to “course and scope.” The reasoning—adopted in at least sixteen federal district courts and now, regrettably, in the Louisiana First, Third, and Fifth Circuit Courts of Appeal—goes like this:

[S]hould [the truck driver] be found to be negligent, that finding will include the negligence of [the employer] in [the truck driver’s] hiring, training, supervision, etc. Likewise, should [the truck driver] be found not to be negligent, then no amount of negligence on the part of [the employer] in hiring, training, or supervising [the truck driver], could be the cause-in-fact or legal cause of the accident that occurred.

Wheeler v. United States Fire Insurance Company, 2018-1422 (La. App. 1 Cir. 6/13/19), 2019 WL 2612903; see also Elee v. White, 2019-1633 (La. App. 1 Cir. 7/24/20), 2020 WL 4251974; Landry v. National Union Fire Insurance Company of Pittsburg, 2019-337 (La. App. 5 Cir. 12/30/19), 289 So.3d 177, 184-86, writ denied, 20-0188 (La. 5/1/20), 295 So.3d 945; Perro v. Alvarado, 2020-339 (La.App. 3 Cir. 9/30/20), 304 So.3d 997.

This reasoning is grounded in a misinterpretation of Louisiana law that originated in Dennis v. Collins, No. CV 15-2410, 2016 WL 6637973 (W.D. La. Nov. 9, 2016), an unreported federal district court case. Dennis offered an attractive and deceptively simple bright-line rule—if an employer admits to “course and scope” then plaintiff cannot maintain a direct negligence cause of action against the employer. However, this bright-line “Dennis rule” conflicts with multiple bedrock principles of our Civil Code. In my view, the key to correcting the courts’ error is a focus on the Civil Code, especially Article 2323 and Article 2324(B).

In some reported cases, plaintiffs’ counsel have directed courts to La. Civil Code Article 2323 and its mandate that “the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined….” At least two federal courts have rejected this argument, reasoning that the responsibility of the employer is coextensive with that of the employee who committed the tort. Because the employer will purportedly be held responsible for any potential liability by operation of its stipulation, the allocation of fault—mandated in no uncertain terms by Article 2323—is "not necessary." See, e.g., Giles v. ACE Am. Ins. Co., No. CV 18-6090, 2019 WL 2617170 (E.D. La. June 26, 2019); Pigott v. Heath, No. CV 18-9438, 2020 WL 564958 (E.D. La. Feb. 5, 2020). The courts have chosen to ignore the plain language of Article 2323 in well-intentioned pursuit of various stated policy goals, e.g., to streamline litigation and to protect defendants from prejudice. Respectfully, this is error. In order to correct this error, it is critical that the plaintiffs’ bar not only argue the Article 2323 fault allocation mandate but also explain to the courts why this fault allocation is necessary. This is where Article 2324(B) comes into play.

In all of these cases, the courts’ decisions have been premised on the notion that the employer’s liability is coextensive with the liability of the employee. The problem is that the employee’s liability is not coextensive with the liability of the employer. In other words, although the employer is solidarily liable for the wrongs of the employee, the employee is not liable at all for the wrongs of the employer. See La. C.C. art. 2324(B) (“A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person….”); Dumas v. State ex rel. Dep’t of Culture, Recreation & Tourism, 2002-0563 (La. 10/15/02), 828 So.2d 530, 537 (“This provision abolishes solidarity among non-intentional tortfeasors, and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to Article 2323.”). In my opinion, this is the paramount reason a plaintiff’s claims against the employee and its independent claims against the employer must remain separate and why there must be an allocation of fault at the conclusion of the case, as mandated by Article 2323. Employer and employee are solidarily liable for the negligence of the employee. The employer is independently liable for its own negligence. If, as the First Circuit and the Fifth Circuit have held, an employer’s liability for its own direct negligence is subsumed in the cause of action against the employee, then an employee becomes solidarily liable along with the employer for the damages attributable to their combined fault. Not only does this violate the express terms of La. Civil Code Article 2324(B), but it is profoundly unfair to the employee-driver, who may bear minimal fault for his employer’s failure to train him or failure to appropriately equip his vehicle. Moreover, to the extent that employer and employee have the same defense counsel, this tactic creates a serious conflict of interest as it exposes the employee to solidary liability for negligent acts he did not commit.

Defendants often frame the issue as “whether Louisiana law allows a plaintiff to maintain both a vicarious liability and a direct negligence claim against an employer for the alleged negligence of its employee when the employer stipulates to ‘course and scope.’” It is critical that we correct this characterization. These cases involve separate acts of negligence—some committed by the employer and some committed by the employee. Ultimately, there is no dispute that an employer’s admission to “course and scope” can subject an employer to vicarious liability for any damages attributable to the fault of its employee. Such an admission makes an employer and an employee solidarily liable for any damages attributable to the fault of the employee. But it does not and cannot make an employee liable for damages attributable to the fault of an employer.

This issue is so important because this “Dennis bright-line rule” is not limited to trucking cases. It would apply equally to all negligence causes of action in this state. By design, this holding operates to hide the employer’s sins from the factfinder, and it does so at the expense of plaintiff and of employee co-defendant and in express violation of multiple articles of our Civil Code.

If there is anything me or my firm can do to aid my fellow members of the bar in correcting what I view as an injustice to plaintiffs and co-defendants alike, please do not hesitate to contact me. As a former Louisiana Supreme Court and Louisiana Fifth Circuit law clerk, I am very comfortable litigating before our state’s reviewing courts, and I have personally conducted extensive research on this issue which I would be delighted to share.

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