COOKS, J.
Bonnie Romero (Plaintiff) was allegedly injured in an automobile accident when her car was struck by an eighteen wheeler tractor-trailer driven by Gregory J. Vidrine (Vidrine). Plaintiff alleges Vidrine ran through a stop sign and collided with her vehicle. She further alleges Vidrine was acting in the course and scope of his employment with Renae G. Stanford, Inc.
Plaintiff amended her original petition for damages alleging she is entitled to recover punitive damages against all defendants named in her suit under the provisions of La.Civ.Code art. 2315.4. Stanford asserts Plaintiff has no right of action and no cause of action against it for punitive damages as a matter of law, maintaining that punitive damages are only recoverable against Vidrine individually.
Plaintiff filed a motion for summary judgment on the issue of punitive damages against Stanford and its insurers, and filed a motion to compel discovery of information relating to Stanford's financial worth. Stanford filed a cross motion for summary judgment alleging it is not vicariously liable for any punitive damages which may be awarded against Vidrine. The trial court denied Plaintiff's motion for summary judgment and her motion to compel discovery and granted Stanford's cross motion for summary judgment finding Stanford is not liable for any punitive damages which may be awarded against Vidrine. Plaintiff filed a writ of review with this court which we denied with instructions to Plaintiff that she request the trial court certify its ruling as a final judgment. The trial court certified the ruling as a final judgment and Plaintiff now appeals the trial court's denial of her motion for summary judgment and denial of her motion to compel discovery. Vidrine also assigns error on appeal alleging the trial court erred in failing to dismiss Plaintiff's motion for summary judgment as premature. However, Vidrine did not file an Answer to the appeal nor did Vidrine appeal the trial court's ruling. We, therefore, cannot consider Vidrine's assignment of error.
Plaintiff is not entitled to recover punitive damages from Stanford. Although our courts have not had occasion to rule directly on the question of whether punitive damages, such as those imposed under the provisions of La.Civ.Code art. 2315.4, can be imposed upon a party vicariously liable for general damages, the jurisprudence applying Article 2315.4 and other punitive damage statutes is instructive.
Ross v. Conoco, Inc., 02-299, p. 14 (La.10/15/02), 828 So.2d 546, 555.
Louisiana Civil Code Article 2315.4 provides:
Vicarious liability of employers for the actions of their employees is established in
First, we note, there is no evidence nor allegation that Stanford "might have prevented" Vidrine's intoxication. Additionally, Stanford insisted that Vidrine be tested immediately following the accident and fired him when he refused to be tested. Thus, under the express provisions of La. Civ.Code art. 2320, Stanford's vicarious liability for damages which resulted from Vidrine's intoxicated state hinges upon whether it could have prevented Vidrine from driving while under the influence of drugs or alcohol. Further, we find this Article addresses only the compensatory damages which Stanford's servant may have caused by his negligence. The Louisiana Supreme Court, when reviewing similar language found in La. Civ.Code art. 2324, held:
Likewise, there is no reference in Article 2320 to vicarious liability for punitive damages imposed upon an individual for proscribed behavior.
The language of Article 2315.4 is clear and unambiguous. It expressly provides for punitive damages against "a defendant" who recklessly or wantonly disregards the safety of others by driving while intoxicated. The article is clearly aimed at the offending person's behavior and none other. We addressed the application of Article 2315.4 to persons who supplied liquor to a driver in Bourque v. Bailey, 93-1657 (La.App. 3 Cir. 9/21/94), 643 So.2d 236, writ denied, 94-2619 (La.12/16/94), 648 So.2d 392. In that case, later cited by the Louisiana Supreme Court with approval, we refused to hold
We also rejected the contention in Bourque that the third parties who supplied liquor to the defendant should be held liable in solido for any exemplary damages assessed against the defendant intoxicated driver. We held:
In Ross, the Louisiana Supreme Court, quoting from our decision in Bourque, rejected the assessment of punitive damages against co-conspirators under the provisions of former LSA-Civ.Code art. 2315.3. The court in Ross stated:
Ross, 828 So.2d at 554 (emphasis added). There is nothing in the record which demonstrates any behavior on the part of Stanford for which Stanford should be penalized as an offending tortfeasor.
In reaching its decision in Ross, the Louisiana Supreme Court also relied on its decision in Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708:
Ross, 828 So.2d at 554 (emphasis added). The Louisiana Supreme Court in Ross expressly rejected the lower court's "expansive interpretation" of former Article 2315.3 and found it failed to adhere to the policy of strict construction of our punitive statutes. Id. at 555. In view of the rationale stated in these decisions we do not believe that the punitive damages provided for in LSA-Civ.Code art. 2315.4 can be assessed against Stanford as Vidrine's employer, especially where there has been no allegation nor any showing made that Stanford in any manner contributed to Vidrine's intoxication. The trial court correctly rejected Plaintiff's motions. The ruling of the trial court is affirmed and all costs of this appeal are assessed against Plaintiff.
THIBODEAUX, Chief Judge, dissents and assigns written reasons.
THIBODEAUX, Chief Judge, Dissenting.
The majority is simply wrong.
The majority quotes La.Civ.Code art. 2320 emphasizing that portion which states that the vicarious responsibility only attaches when the masters might have prevented the act which caused the damage and have not done it. The majority then states: "there is no evidence nor allegation that Stanford `might have prevented' Vidrine's intoxication." The majority also notes that "[t]here is nothing in the record which demonstrates any behavior on the part of Stanford for which Stanford should be penalized as an offending tortfeasor." The majority further points that no damages can be assessed against Stanford "especially where there has been no allegation nor any showing made that Stanford in any manner contributed to Vidrine's intoxication."
Neither compensatory nor punitive damages would accrue to Stanford because La.Civ.Code art. 2320 applies, at the very least, to compensatory damages. Moreover, this view fails to recognize that if there were evidence of Stanford's behavior in that manner, the plaintiff would not need the vicarious theory of liability. It could proceed against Stanford directly. The majority's interpretation of the statute would render the doctrine of respondeat superior virtually meaningless by limiting
If for some reason I have misunderstood the majority's reasoning, and Stanford can be liable for compensatory damages, then, Stanford is liable for punitive damages as well. The majority begins by an erroneous assertion: "our courts have not had occasion to rule directly on the question of whether punitive damages ... can be imposed upon a party vicariously liable for general damages...." In fact, "[e]mployers have been held vicariously responsible for the punitive damages chargeable to their employee-drivers." 12 WILLIAM E. CRAWFORD, LOUISIANA CIVIL LAW TREATISE § 9:16 (2d ed.2009) (citing Lacoste v. Crochet, 99-602 (La.App. 4 Cir. 1/5/00), 751 So.2d 998; Curtis v. Rome, 98-966-70 (La. App. 4 Cir. 5/5/99), 735 So.2d 822, writ denied, Rambo v. Rome, 99-1617 (La.10/1/99), 748 So.2d 441). Thus, while ignoring the on-point jurisprudence, the majority relies exclusively on the jurisprudence which held La.Civ.Code art.
First, when the supreme court faced the question as to whether solidarily liable defendants could be solidarily liable for punitive damages, it expressly cautioned that its analysis did not encompass vicariously liable defendants. Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708. Second, the same court that held the employer vicariously liable for punitive damages distinguished that jurisprudence and ruled that the solidarity of an obligation to pay compensatory damages does not make all of the defendants solidarily liable for punitive damages. Berg v. Zummo, 99-974 (La.App. 4 Cir. 5/10/00), 763 So.2d 57, rev'd on other grounds, 00-1699 (La.4/25/01), 786 So.2d 708. Thus, both the supreme court and our sister jurisdiction at the fourth circuit had no difficulty recognizing that solidary and vicarious liability are two completely different and unrelated theories of liability.
Quoting at some length Ross, 828 So.2d 546, the majority fails to distinguish the relationship and the accompanying policy considerations between the punitively—liable tortfeasor and his co-conspirators and the punitively—liable tortfeasor and his employer. The focus in the conspirators' punitive liability is on the person(s) whose culpable conduct caused plaintiff's injuries. Thus, "the solidarity imposed by Article 2324 cannot be used to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each co-conspirator's individual conduct must fall within the scope of the applicable penal statute." Id. at 553. The theory of vicarious liability is different in that the focus is not on the culpability of the defendant but on who will be paying for the damages once they are assessed. This is because a corporate employer who acts only through its employees is always deemed culpable when the employee, acting in the course and scope of the employment, is held liable for punitive damages.
The courts of this state have understood this wisdom for some time. Over ten years ago, the fifth circuit confronted the question of whether to assess punitive
Rivera v. United Gas Pipeline Co., 96-502, 96-503, 97-161, p. 10 (La.App. 5 Cir. 6/30/97), 697 So.2d 327, 336, writs denied, 97-2030-32, 97-2034, (La. 12/12/97), 704 So.2d 1196-97.
The fourth circuit, when presented with the same question this court now faces, has ruled twice that the employer is vicariously responsible for the punitive damages assessed against its intoxicated employee-driver in Curtis, 735 So.2d 822 and in Lacoste, 751 So.2d 998. Most likely because the resolution of the issue was so self-explanatory and self-evident the fourth circuit did not provide much reasoning behind its decision. I have no doubt, though, that the court was driven by the same considerations the fifth circuit so aptly observed in Rivera, 697 So.2d 327 noted above.
These observations are certainly not new. Over a hundred years ago, the courts of this country had the acumen of holding corporations vicariously liable for punitive damages and noted the folly of requiring corporate culpability independent of the employee's culpability:
Goddard v. Grand Trunk Ry., 57 Me. 202, 223-24 (1869) (emphasis added). Thus, when an employee is culpable and is liable for punitive damages, the corporate employer is always culpable as well because the corporate employer acts only through its employees.
Even if one entertains the idea that the employer is an innocent party the result must be, nevertheless, the same. The majority states that La.Civ.Code art. 2315.4 "is clearly aimed at the offending person's behavior and none other." That an insurer has been held liable for punitive damages assessed against its insured makes the majority's observation erroneous. See Sharp v. Daigre, 555 So.2d 1361 (La.1990); Creech v. Aetna Cas. & Sur. Co., 516 So.2d 1168 (La.App. 2 Cir.1987), writ denied, 519 So.2d 128 (La.1988). "LSA-C.C. art. 2315.4 has a dual purpose, to penalize (and therefore deter) the drunk driver, as well as to provide damages for the victim of such driver." Sharp v. Daigre, 545 So.2d 1063, 1064-65 (La.App. 1 Cir.1989), aff'd, 555 So.2d 1361 (La.1990) (citing Morvant v. U.S. Fid. & Guar. Co., 538 So.2d 1107 (La.App. 5 Cir.), writ denied, 541 So.2d 875 (La.1989)). As I have mentioned before, a different set of policy considerations applies when it comes to employers as opposed to co-conspirators, and those considerations are similar to those which hold an insurer liable for punitive damages.
The court explained:
Creech, 516 So.2d at 1173 (citation omitted).
Unlike the case of co-conspirators, the focus, when it comes to insurers and employers, is not on whose culpable conduct caused the injury but on who is responsible to pay the damages once the injury occurred. Even if I accepted the premise that the employer is an innocent party, the employer is still liable just like the innocent insurer is. This is because once the injury occurs in the manner that our legislature has deemed atrocious, reprehensible, and outrageous by way of providing for punitive damages between the two innocent parties: the victim and the insurer or the victim and the employer, the party who is more capable to bear the loss should do so. In this case, it is the employer.
Both employers and insurers accept the responsibility to pay for the culpable conduct of their employees and insureds, respectively. Like an insurer who chooses to insure a particular risk, an employer chooses to employ a particular person.
The majority quotes Ross, 828 So.2d 546, at some length regarding the object of punitive damages. As explained above, the object of deterrence is achieved if the exemplary "damages will encourage employers to exercise closer control over their servants for the prevention of outrageous torts." W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 2 (5th ed.1984). Yet, I also note that the majority fails to recognize that punitive damages have a "hybrid nature." 6 SAUL LITVINOFF, LOUISIANA CIVIL LAW TREATISE § 7.2 (1999). "Deterrence is only one aspect of exemplary damages." Sharp, 545 So.2d at 1068. "It is true that the purpose of punitive damages is to discourage egregious conduct. However, deterrence is one of the complex of purposes that is said to lie at the heart of all tort law, not merely that aspect labeled `punitive.'" Creech, 516 So.2d at 1173 (citation omitted). See also 6 SAUL LITVINOFF, LOUISIANA CIVIL LAW TREATISE § 7.2, 7.7 (1999) for a discussion on the nature of punitive damages.
Moreover, in our legal system where the plaintiff bears her attorney costs, it is difficult to maintain that compensatory damages adequately compensate the victim. Thus, punitive damages, in addition to punishing the tortfeasor, help defray the plaintiff's legal expenses as well as "solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation, or other aggravations of the original wrong." Sharp, 545 So.2d at 1064 (quoting BLACK'S LAW DICTIONARY 352 (5th ed.1979)). Therefore, holding the employer vicariously liable for the punitive damages assessed against its employees acting in the course and scope of their employment achieves all of the goals of punitive damages.
For the foregoing reasons, I respectfully dissent.
