author: AMY, Judge.

text:
    Eva L. BANKSTON v. LSU HEALTH SCIENCES CENTER, etc.
    No. 2008-1334.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.

      Owen M. Goudelocke, Assistant Attorney General, Lafayette, LA, for Defendant/Appellee: State of Louisiana, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
    Joseph J. Bailey, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Defendant Appellee: Louisiana Safety Association of Timbermen-Self Insurers Fund.
    Douglas D. McGinity, McGinity Law Firm, Metairie, LA, for Plaintiff Appellant: Eva L. Bankston.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

hThe plaintiff sustained injuries after slipping on a wet floor in a hospital where she was assigned to work by another organization. She filed suit, naming the state-owned hospital as the defendant. The defendant filed a motion for summary judgment, contending that it was immune from tort liability and that the plaintiffs exclusive remedy was in workers’ compensation on the grounds that the plaintiff was its borrowed employee. The trial court granted the motion. The plaintiff appeals, arguing that the trial court erred in its determination of her employment status and in allowing the hearing to proceed despite the plaintiffs alleged lack of representation. For the following reasons, we affirm the trial court’s decision and grant the defendant’s motion to strike.

Factual and Procedural Background

The plaintiff, Eva Bankston, was employed by the Lafayette Council on Aging (“LCOA”) — an organization, which according to the affidavit of the executive director of Senior Service America, is related to a federal training program authorized under Title V of the Older Americans Act. LCOA operates using the grant funds from the Department of Labor and is designed to generate employment among the elderly. LCOA contracted with University Medical Center (“UMC”) a Host Agency, for its Senior Aides to perform community service work assignments. The plaintiff, a Senior Aide, was assigned to UMC to perform her work assignment. The plaintiff alleges that on July 20, 1994, she slipped on the wet floor outside of a patient’s room at UMC. She contends that the fall caused injuries to, among other things, her knees, wrist, and elbow.

The plaintiff filed a negligence suit against the defendant. Louisiana Safety ^Association of Timbermen-Self Insurers Fund, the compensation carrier for LCOA, intervened in order to be reimbursed for the medical and rehabilitative benefits it had paid should the plaintiffs claim succeed. On December 6, 2007, the defendant filed a motion for summary judgment, arguing that it was immune from tort liability pursuant to La.R.S. 23:1034 because the plaintiff was an employee in the service of the state at the time of her accident. The trial court denied the motion, reasoning that La.R.S. 23:1034 precluded a finding that the plaintiff was a borrowed or joint employee in light of the language that stated that an employee of a contractor who has contracted with the state is not an employee of the state.

Thereafter, the defendant filed a Motion for New Trial/Rehearing, which the trial court denied. The defendant then filed a writ application, which was subsequently denied by this court in an unpublished writ opinion, Eva Bankston v. LSU Health Sci. Center Health Care Serv. Div. Univ. Med. Center, CW 08-527 (La.App. 3 Cir. 5/7/08). On May 8, 2008, a hearing was conducted, at which time the State resubmitted its exhibits. At this hearing, after noting that the plaintiffs counsel waived its presence, the trial court found that the plaintiff was a borrowed employee of UMC. Accordingly, it granted the defendant’s motion for summary judgment. The plaintiff appeals, asserting the following assignments of error:

(1) The trial court erred by reversing its earlier denial of the Hospital’s motion for summary judgment, as the matter is simply inappropriate for summary judgment because there are genuine issues of material fact vigorously contested by the parties in this case. The contract between the parties is disputed, and the sworn testimony presented puts several genuine issues of material fact at issue. The trial court erred by finding that there are no genuine issues of material fact as required when granting a summary judgment.
(2) The trial court erred in concluding that the plaintiff!,] Eva Bankston[,] and other paid employees of the Lafayette Council la[on] Aging who volunteered their time at the Hospital were actually “employees of the state” at the Hospital, and as such, limited to recovery for any injuries incurred while volunteering there, under the Louisiana Workers Compensation Act.
(3) The trial court erred by not having the plaintiff represented by counsel at the May 8, 2008 motion for new trial hearing, where the Trial Court reversed its earlier position denying the Hospital’s summary judgment.

Discussion

Standard of Review

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination” of actions. La. Code Civ.P. art. 966(A)(2). The supreme court in Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910, stated:

This court reviews a grant or denial of a motion for summary judgment de novo. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, this court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945.

Status of Employment

The defendant argues that it is immune from tort liability in light of the fact that it was the plaintiffs joint employer; accordingly, it asserts that the plaintiffs recovery is limited to workers’ compensation benefits. The plaintiff, however, contends that she was an employee of LCOA, not the defendant. Therefore, we first discuss the statutory employee and borrowed servant doctrines and whether these doctrines are | ¿available to employees of contractors who contract with the State in light of the plaintiffs argument that La.R.S. 23:1034 precludes such an application.

Regarding the statutory employer relationship, La.R.S. 23:1061(A) provides:

(1)Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.

| .^Insofar as the borrowed servant doctrine is at issue, we set forth the pertinent law. Louisiana Revised Statutes 23:1031(C) provides:

C. In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a “special employer”, and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a “general employer”, shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.

Also, this court set forth the following factors to aid in the determination of whether a borrowed employment relationship is present:

1) Which employer has control over the employee and his or her work, beyond the mere suggestion of details or cooperation; 2) Which employer’s work is being performed; 3) Whether an agreement existed between the general employer and the borrowing employer; 4) Whether the employee acquiesced in the situation; 5) Whether the general employee terminated his relationship with the employee; 6) Which employer furnished the necessary tools and the place where the work was performed; 7) Whether the new work situation was over a considerable period of time; 8) Which employer had the right to terminate the employee; and 9) Which employer had the obligation to pay the employee’s wages. Barnett v. Meridian Res. & Exploration, 01-1114, p. 4 (La.App. 3 Cir. 2/6/02), 815 So.2d 1016, 1019 (quoting, Vaughn v. BFI Waste Systems of North America, Inc., 01-1105 (La.App. 4 Cir. 7/25/01), 793 So.2d 410.

Cobb v. Delta Exports, Inc., 05-509, pp. 6-7 (La.App. 3 Cir. 12/30/05), 918 So.2d 1080, 1086-87, writ denied, 06-0225 (La.4/24/06), 926 So.2d 551. The fourth circuit | ¿further instructed that no single factor is decisive. Andrew-Hong v. Gray Ins. Co., 06-93 (La.App. 4 Cir. 11/2/06), 945 So.2d 124.

While they disagree as to the doctrines’ application, the parties acknowledge that there is a difference between a statutory employee relationship and a borrowed servant relationship as evidenced by the plaintiffs brief and a discussion that took place at the hearing. The first circuit in Arable Brothers Trucking Co. v. Gautreaux, 03-120, p. 10 (La.App. 1 Cir. 8/4/04), 880 So.2d 932, 940, in distinguishing between statutory employees and borrowed servants for workers’ compensation purposes, stated:

The terms “statutory employee” and “borrowed employee” are distinguishable for workers’ compensation purposes. This distinction is still recognized following the 1997 amendments to La. R.S. 23:1031 and 23:1061, which overruled the statutory employer tests as stated in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986), and Kirkland v. Riverwood International USA, Inc., 95-1830 (La.9/13/96), 681 So.2d 329. Moreover, the test for determining who is a borrowed employee is still applied by the courts. See Doucet v. National Maintenance Corp., 2001-1100, p. 8, n. 6 (La.App. 1 Cir. 6/21/02), 822 So.2d 60, 67, n. 6; Maddox v. Superior Steel, 2000-1539, p. 7 (La.App. 1 Cir. 9/28/01), 814 So.2d 569, 574.

(Footnotes added).

In Willis v. Redfish Renovations, LLC, 04-968, pp. 3-4 (La.App. 4 Cir. 12/15/04), 891 So.2d 748, 751, the fourth circuit held:

The 1997 amendments to La. R.S. 23:1061 presented some very important additions to the statutory employer determination. Act 315 of 1997 provided that “work shall be considered part of the principal’s trade, business or occupation if it is an integral part of or essential to the ability of the principal to generate that individual’s principal’s goods, products, or services.” The amendments further provided that, except in the two-contract situation under La. R.S. 23:1061(A)(2), a statutory employer relationship “shall not exist ... unless there is a written contract between the principal and the contractor which ... recognizes the principal as a statutory employer.” La. R.S. 23:1061(A)(3). When there is such a written contractual recognition of the relationship, there is then a “rebuttable presumption” of such a relationship, which may be |7overcome “only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” Id.
In the present case, the record reflects that the contract between Redfish and Rapid does not provide an express provision stating that Redfish was a statutory employer of Rapid’s employees. Since the contract between Redfish and Rapid fails to include the necessary provision, Redfish does not satisfy the criteria for a statutory employer pursuant to La.R.S. 23:1061(A)(3). Therefore, in order to be considered a statutory employer, Redfish must fulfill the criteria of the two-contract defense. See La. R.S. 23:1061(A)(2).

The court in Griffin v. Wickes Lumber Co., 02-0294, p. 6 (La.App. 4 Cir. 12/20/02), 840 So.2d 591, 596, elaborated on the significance of a written contract when distinguishing between the two doctrines: “there was no intention of the legislature to require the written contract provision to extend to borrowed employers under La. R.S. 23:1031. Moreover, a plain reading of La. R.S. 23:1031 and 1061 reveals that the written contract provision only applies to statutory employers, not borrowing employers.”

However, the plaintiff argues that La.R.S. 23:1034 prohibits the application of these doctrines when the State is the defendant. Louisiana Revised Statutes 23:1034(A) provides:

The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing |8police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.

We find no merit in the plaintiffs assertion regarding the preclusive effect of La. R.S. 23:1034. Rather, we find that the classification of an employee as public or private is inconsequential as explained in H. Alston Johnson, III, Workers’ Compensation Law and PRACTICE § 122, in 13 Louisiana Civil Law Treatise (4th ed.2002). The author stated:

There is no suggestion in the Act that the provisions of La.R.S. 23:1061 are not fully applicable to public and private employers alike, and this matter was decided favorably to the employee of a contractor in the well-considered opinion in Washington v. Sewerage and Water Board [180 So. 199 (La.App.Orl.Cir.1938) ]. There was at least some support for the contrary argument, principally based upon a portion of La.R.S. 23:1034 which, in discussing the obligatory nature of compensation for public employees, states:
One employed by an independent contractor who has contracted with the State or other political subdivision, or incorporated public board or commission [....], shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission.
In view of the fact that the employee of an independent contractor is never to be regarded as the direct employee of the principal, the question arises as to why this express provision was included. The answer seems to lie in the fact that the claimant who is a direct public employee enjoyed certain advantages which are not accorded a private employee (mandatory coverage, as well as the right to recover even though the work done is not a part of the employer’s regular business). The legislature may have felt that no sound policy would be served by extending these special advantages to the employee of a private concern acting as an independent contractor for a public body principal.
It was thus concluded that if an employee of an independent contractor hired by a public body was to recover from the latter, he was |arequired to show that the contract was for the execution of hazardous work and that it covered a part of the regular business of the public body. This placed public and private employers on precisely the same footing in this respect, and any apparent conflict between La. R.S. 23:1034 and La. R.S. 23:1061 was resolved in this way.
With the elimination of the hazardous business requirement, and the imposition of mandatory coverage in almost all instances, there is some doubt that public employees would any longer have any special advantages over private employees. Thus the distinction (if any were intended by these provisions) may no longer be of any practical significance. The conclusion of the Washington court remains sound: the public body principal is to be treated in the same fashion as a private principal would be under La. R.S. 23:1061.

Accordingly, we find that La.R.S. 23:1034(A) does not preclude the arguably excluded employees and employers from establishing an employer-employee relationship via the statutory employer or borrowed servant doctrines. Having found no preclusive effect of La.R.S. 23:1034, we turn to consideration of the facts presented to determine whether the defendant meets the definition of a borrowed or statutory employer.

We evaluate the contractual language in the agreement between UMC and LCOA to determine if UMC qualifies as a statutory employer. The contract provides in pertinent part:

105 SENIOR AIDES Project/Host Agency Agreement

To comply with the requirements of the Senior Service America, Inc., Senior AIDES Program, operated under Title V of the Older Americans Act, this Agreement is voluntarily entered into by UNIVERSITY MEDICAL CENTER[,] hereinafter referred to as the Host Agency, and LAFAYETTE COUNCIL ON AGING[,] a subgrantee of the Senior Service America, Inc., Senior AIDES Program, hereinafter referred to as the Sponsor Agency.
The Host Agency agrees to provide a safe and healthful work site for each Senior Aide, to provide adequate orientation and training necessary to perform assigned duties in accordance with a written community service assignment description, to provide additional training as | mopportunities occur, and, to the extent possible, to treat each Senior Aide as a regular member of the Host Agency staff.
The Host Agency agrees to consider each Senior Aide for regular employment, either full-time or part-time, when vacancies occur in the Host Agency Staff or when new positions are created. The Host Agency will also recommend suitable training for unsubsidized placement of the Senior Aide.
The Host Agency understands that the maximum length of time that a Senior Aide may remain in the same assignment shall not exceed a total of 24 months, except under limited circumstances which will be determined by the Senior AIDES Program. Moreover, the Host Agency understands that the Sponsor Agency reserves the right, following reasonable notice, to reassign any Senior Aide at any time that reassignment will increase the Senior Aide’s opportunities for training or unsubsidized employment, or will otherwise serve the best interests of the Senior Aide, or will better support the goals and objectives of the Senior AIDES Program.
The Host Agency agrees that no other national Title V project sponsor will be provided a work site while this Agreement is in effect.
The Host Agency agrees to abide by the hours and work schedules mutually agreed to for each Senior Aide and to provide properly prepared time sheets, periodic performance evaluations, and other required documents. In addition, the Host Agency agrees and understands that each Senior Aide will be required to attend periodic Senior AIDES Project meetings during regular working hours.

This agreement may be amended by written mutual agreement.

This contract includes no express language making UMC a statutory employer of LCOA’s employees, particularly, the plaintiff. Accordingly, UMC is not a statutory employer of the plaintiff. See La. R.S. 23:1061(A)(2) and La.R.S. 23:1061(A)(3). We, therefore, consider the borrowed servant factors set forth above.

Bight of Control

The plaintiff claimed in her deposition that Eugenia Turner, a LCOA employee, was in “charge of the group.” The plaintiff confirmed that “once [the | uplaintiff] got [to UMC] somebody from UMC would either tell [her] or somebody else in [the] group .... ‘[o]kay. Tall go to Room 434’ or ‘Tail go up down the hall and do this[.]’ ” She also indicated that Mary Dell Berard, a UMC nurse, sometimes instructed her where to perform her assignments in the hospital. Mary Dell Berard confirmed, via affidavit, that “[w]hile Eva Bankston performed work assignments as a Senior Aide at UMC, she was supervised by UMC personnel.” She also explained that “[a]s a UMC supervisor, she personally verified the hours worked by Senior Aides.”

Further, the Project Director for the Senior Aides of LCOA, Brenda Pourciau, stated in her affidavit that “UMC personnel supervised Eva Bankston in the performance of her community service work assignments as a senior aide at UMC.” She continued, stating that LCOA “did not provide work site instruction, specific work assignments or supervision while senior aides or Eva Bankston engaged in the performance of their community service work assignments at UMC.” She further corroborated the assertion that UMC verified the hours worked by Senior Aides. This factor militates in favor of UMC being the plaintiffs borrowed employer.

Which Employers’ Work is Being Performed

The Senior Aide Assignment Description provides that the plaintiffs duty was to “help children with the Reading Program” in the “Pediatric Unit, Child & Adolescent Unit Family Practice Clinic, Kid-Med Outpatient Surgery” under the supervision of “Mary Dell Berard, Pediatric RN Supervisor 24 East/Pediatric Unit.” It also stated that the training was provided by the Host Agency, UMC.

The plaintiff testified that she and the other LCOA employees assigned to UMC read to the patients and occasionally brought them water. She claims that these |i2duties qualified her as a volunteer, because “[p]aid Hospital employees don’t sit for hours reading to patients unless they have a strong desire to be fired.” She contends that community work is the work of LCOA, not UMC. The defendant argues, however, that the intent of referring to the Senior Aides’ work as community service was to “satisfy the requirements of the Older Americans Act.”

The trial court hesitated in ruling on this factor, stating, “.... I have a question about one factor. And it’s the one factor that I think that is most important. And that is the question of whose work was being performed.” It further explains its hesitation, stating: “.... I guess the issue for me is who created those [community work] assignments. If it was UMC, then I agree with you, they’re doing the work of UMC. But its — I’m just looking for some indication in the record as to who determined.”

In reviewing the affidavit of Brenda Pourciau, we again find support in favor of UMC in the provision that states: “Lafayette Council on Aging did not provide work site instruction, specific work assignments or supervision while senior aides or Eva Bankston engaged in the performance of their community service work assignments at UMC.” The plaintiffs testimony regarding her work duties, the affidavit of a LCOA director, and the fact that the plaintiffs work extended beyond a reading program and crossed over into patient care (i.e. “giv[ing] them fresh water”) all support the conclusion that the work being performed was that of UMC.

Agreement between Borrowing and Lending Employer

The plaintiff argues that the contract’s language stating that the Hospital agreed to “provide additional training as opportunities occur, and, to the extent possible, to treat each Senior Aide as a regular member of the Host Agency staff,” shows that the | ^contract “specifically separated and distinguished the [LCOA] employee/volunteers at the Hospital from the regular Hospital employees.” (emphasis added). The defendant, however, contends that nothing in the agreement “preclude[s] the existence of a borrowed employee relationship.” The contract’s provisions that provide that UMC will treat each Senior Aide as a regular employee and “consider each Senior Aide for regular employment, either full-time or part-time, when vacancies occur in the Host Agency Staff or when new positions are created” lend support to the notion that there was an agreement between the two employers that the Senior Aides were being viewed as borrowed employees until they could fill a regular employee position.

The Employee’s Acquiescence

The work assignment description contains the plaintiffs signature, which evidences the fact that she did not object to the employment designation. Furthermore, she worked at UMC for approximately four months, without complaints as to her work assignment. Despite the plaintiffs argument that though she freely volunteered at the Hospital, she “never considered herself nor was she treated as an employee of the Hospital,” we find that her acquiescence to the work assignment was sufficient for purposes of this evaluation. Thus, this factor, too, weighs in favor of the defendant’s position.

Termination of the Employee by the General Employee

The plaintiff was never terminated by either LCOA or UMC. Accordingly, this factor does not offer much in the way of defining the plaintiffs work status.

Fimiishment of the tools and location necessary for employment

| uThe record reveals that the plaintiffs work was solely performed at UMC. The plaintiff asserts that the tools were her own, i.e. “her own labor and eyes while reading to the patients and her own labor and arms in sometimes replenishing their water.” While this assertion may be true, this factor is principally addressing the question of which employer made it possible for her to perform her work. Insofar as UMC provided the work space, this factor gives strength to the defendant’s assertion that the plaintiff qualified as a borrowed employee.

Length of Time at New Work Environment

The record indicates that the plaintiff performed her work assignments at UMC from March 2004 to July 2004. As we note that the duration of her time at UMC was relatively short, this factor does little to advance the argument of either party.

Right to Terminate the Employee

The affidavit of UMC supervisor, Mary Dell Berard, states that “UMC had the unilateral authority to dismiss and/or terminate Eva Bankston or any Senior Aide from working at UMC for actions that could endanger patient care or discredit the institution.” The Host Agency Agreement, however, provides that:

[T]he Host Agency understands that the Sponsor Agency [LCOA] reserves the right, following reasonable notice, to reassign any Senior Aide at any time that reassignment will increase the Senior Aides’ opportunities for training or unsubsidized employment, or will otherwise serve the best interests of the Senior Aide, or will better support the goals and objectives of the Senior AIDES Program.

Since the contract contemplates a reassignment and not specifically a termination, we turn to the affidavit of the LCOA Project Director, Brenda Pourciau, which provides that “[i]n the event UMC determined to dismiss Eva Bankston or discontinue her community service work assignment at UMC, the [LCOA] could not require that UMC change its position. Accordingly, the record shows that UMC had hr,the right to terminate the plaintiffs involvement with the Hospital, albeit not with LCOA. This factor, then, supports the defendant’s contention.

Payment of Employee’s Wages

This factor does not appear to be in dispute; LCOA paid the plaintiff. Accordingly, the plaintiff is afforded the benefit of this factor.

After applying all of the factors, we find that the jurisprudential test demonstrates that the plaintiff was a borrowed employee of UMC. This determination, which thoroughly covered the evidence presented, precludes the necessity of discussing the plaintiffs assignment of error regarding the existence of genuine issues of material fact. Thus, for the legal and factual reasons set forth above, the trial court correctly determined that the plaintiffs exclusive remedy is in workers’ compensation.

Counsel’s Waiver of Presence

The plaintiff also contends that the trial court erred by allowing the May 8, 2008 hearing to proceed without the plaintiff being represented by counsel. She claims that the “[t]rial [c]ourt very easily could have ruled in plaintiffs favor had plaintiff [sic] counsel been there to answer the trial [c]ourt’s questions regarding ‘whose work was being done’. We find that this assignment of error lacks merit for several reasons. Primarily, we disagree with the plaintiffs position in light of the factor that a waiver was noted for the record. Also, there does not appear to be any form of objection in the transcript of the hearing.

Further, La.Code Civ.P. art. 966(B), which states, in pertinent part: “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show hiJhat there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” This article does not list an oral argument as a permissible ground on which to base the granting or denial of summary judgment. The trial court’s request for more information regarding the issue of whose work was being performed was stated as follows: “[b]ut I guess what I’m asking you to address is the question of what else in the record might indicate that Ms. Bankston was, in fact, doing the work — or performing the ordinary work of UMC.” Because she did not rely on the counsel’s argument, but rather she sought the location of evidence in the record, we do not find that she exceeded the scope of La.Code Civ.P. art. 966. This is true, particularly in light of the fact that this was the second time this issue was before the court and the hearing on the first motion for summary judgment afforded the plaintiff an opportunity to present its evidence in opposition thereto. The second motion for summary judgment was heard and decided on the discovery of new law, rather than new evidence. Accordingly, this assignment is without merit.

Motion to Strike

We note that, on appeal, the plaintiff relies heavily on Eugenia Turner’s affidavit to support her assertion that she was not a borrowed employee of UMC. The defendant filed a Motion to Strike the affidavit from the record on the grounds that it was submitted to the court for the first time on appeal. The record shows that the affidavit was executed on December 12, 2008 — more than seven months after the hearing was conducted on the motion for summary judgment. Louisiana Code of Civil Procedure article 2132 provides:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by theJjjorder of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

The plaintiff does not seek to correct any “misstatements, irregularities or informalities” in the trial record. Id Instead, she attached to her brief a deposition taken after the hearing on the motion for summary judgment. As stated in State ex rel. Sabine River Auth. v. Meyer & Assocs. Inc., 07-214, p. 3 (La.App. 3 Cir. 10/3/07), 967 So.2d 585, 588, “an appellate court is not vested with the right to hear new evidence not part of the record in the trial court.” See White v. W. Carroll Hosp., Inc., 613 So.2d 150 (La.1992). Thus, the affidavit of Eugenia Turner has not been considered in this review. Also, we note that the defendant’s motion to strike includes “all reference to Plaintiff as 'unrepresented’ or a ‘pro se plaintiff be stricken from Appellant’s appeal brief[.]” As discussed above, we find that the waiver executed by the plaintiffs counsel at the hearing on the second motion for summary judgment precludes any characterization of the plaintiff as unrepresented. Accordingly, the motion to strike is granted.

DECREE

For the foregoing reasons, the grant of summary judgment in favor of UMC is affirmed. Furthermore, the affidavit of Eugenia Turner is stricken from the appellate record. All costs of these proceedings are assigned to the plaintiff, Eva Bank-ston.

AFFIRMED; MOTION TO STRIKE GRANTED.

      . According to UMC, UMC was established and is operated by the State of Louisiana, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Christopher O’NEAL, Appellant.
    No. 44,067-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.
    Rehearing Denied April 30, 2009.

      Louisiana Appellate Project By Edward Kelly Bauman, Lake Charles, for Appellant.
    Paul Joseph Carmouche, District Attorney, Tommy Jan Johnson, Dhu Thompson, Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

|, Christopher O’Neal was convicted of second degree murder and sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. He appeals. We affirm.

FACTS

On May 13, 2006, the defendant shot and killed Carlos Johnson in the carport of Johnson’s Queensborough area home in Shreveport. Johnson and his wife had just returned home from shopping. In June 2006, the defendant was indicted for second degree murder, and in November 2007, a jury returned a verdict of guilty.

On appeal, the defendant claims two trial errors:

• the denial of his motion to suppress the murder weapon and ski mask discovered in an allegedly illegal search of his car’s trunk; and
• the admission of prejudicial hearsay testimony concerning the results of a gun residue test.

TESTIMONY

Because of the limited nature of the assignments of error, the testimony of primary importance is that of Corporal Josh Feliciano of the Shreveport Police Department who, along with SPD Corporal Robert Morman, stopped the defendant’s vehicle shortly after the shooting, subsequently finding the weapon and ski mask. At the suppression hearing, Corporal Feliciano identified the defendant in open court, and further testified that:

• he came into contact with the defendant on May 13, 2006;
• he and Corporal Morman were in their vehicle in a parking lot at the intersection of Lakeshore and Hearne, a high crime area, at about 3:00 a.m.;
| ⅞* the defendant’s vehicle sped off an overpass, causing sparks to spray from the bottom of his vehicle as it hit the pavement at the bottom of the overpass;
• the officers pursued the vehicle and were able to stop it at the intersection of Hearne and Edgar;
• as Feliciano approached the vehicle, the defendant appeared to be concealing something under his leg;
• the defendant appeared to be very nervous;
• as the defendant produced his driver’s license, Feliciano noticed the initials “RSC” on his hand, known to the officer as a gang tattoo for Rolling 60 Crips;
• the defendant denied having any weapons in his vehicle;
• Feliciano had the defendant step out and move to the front of the vehicle;
• when the defendant exited the vehicle, the officer observed a broken gun magazine on the seat;
• after patting down the defendant, Feli-ciano was able to see a weapon under the seat by lowering his head to the level of the steering wheel;
• when the officer recovered the weapon, the defendant claimed that the police had planted the gun on him and began to run; and
• the defendant was taken into custody two or three blocks away.

The stop was recorded on the dash camera of the officers’ vehicle and was viewed by the trial court at the suppression hearing. The video indeed shows a great deal of movement by the defendant in the car prior to Corporal Feliciano’s approach. The tape is entirely consistent with the officer’s testimony.

The trial court denied suppression of the weapon and ski mask seized from the vehicle.

Is At trial, the court allowed testimony about the gun residue test, without objection. We affirm in all respects.

DISCUSSION

Motion to Suppress

The defendant argues that:

• neither probable cause nor exigent circumstances existed at the time the evidence was recovered;
• there was no justification for failing to secure a search warrant for the car;
• Corporal Feliciano’s report is inconsistent as to when he observed the broken magazine;
• Corporal Feliciano’s dash camera showed that he stopped three other males that night and conducted three warrantless searches of their vehicles;
• Corporal Feliciano’s testimony (that as he approached the vehicle, the defendant was concealing something) was based upon the vehicle’s rocking, but the video shows defendant was just getting his registration; and
• Officer safety was not a major concern because Corporal Feliciano was accompanied by Corporal Morman, who did not testify to seeing a weapon or a magazine in plain view from his side of the vehicle.

The state sees the proceedings differently, arguing that:

• the defendant does not contest the validity of the traffic stop;
• speeding is ample justification for a warrantless stop;
• the pat down was justified for safety reasons;
• on these facts, probable cause existed as well as exigent circumstances by which to justify the warrantless search; and
• the weapon was in plain view.

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the RFourth Amendment to the United States Constitution and Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Ledford, 40,318 (La.App. 2d Cir.10/28/05), 914 So.2d 1168.

The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. Johnson, 32,384 (La.App. 2d Cir.9/22/99), 748 So.2d 31.

If a police officer observes a traffic infraction, the subsequent stop for that offense is clearly legal; the standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. This objective standard is indifferent to the relatively minor nature of a traffic violation. State v. Stoutes, 43,181 (La.App. 2d Cir.4/2/08), 980 So.2d 230. To assess the validity of an investigatory stop, the critical Isinquiry focuses on the officer’s knowledge at the time of the stop. State v. Williams, 421 So.2d 874 (La.1982).

Public safety requires some flexibility for police to investigate and prevent crime. State v. Wesley, 28,012 (La.App. 2d Cir.4/3/96), 671 So.2d 1257. Police officers are justified in ordering the driver as well as all passengers out of vehicles, for officer safety. This may be inconvenient, but it is not a serious additional intrusion upon privacy interests. See State v. Landry, 588 So.2d 345 (La.1991).

The plain view doctrine is an exception to the warrant requirement. State v. Young, 39,546 (La.App. 2d Cir.03/02/05), 895 So.2d 753. The plain view doctrine renders a warrantless search reasonable: (1) if the police officer is lawfully in the place from which he views the object; (2) where the object’s incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2310, 110 L.Ed.2d 112 (1990); State v. Young, supra. Inadvertence is no longer required. See Horton, supra.

In State v. Archie, 477 So.2d 864 (La.App. 4th Cir.1985), officers stopped a car with a bent license plate. As the driver and passenger exited the vehicle, the passenger ducked down and placed something under the seat. One officer looked under the seat and found a loaded gun. The appellate court found that the search did not exceed the scope of the traffic stop, noting that the stop took place in a high-crime area, that the defendant | fiwas seen trying to hide something under the seat, and that the officers were not obligated to let him re-enter the car without checking to see what he had placed under the seat considering the possibility that they might be in danger. The court cited Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), in which the supreme court held that a search of the passenger compartment is permissible if limited to those areas in which a weapon may have been hidden, if the officer possesses a reasonable belief “based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons.”

In State v. Wilder, 07-960 (La.App. 5th Cir.3/25/08), 983 So.2d 124, 127, writ denied, 2008-0821 (La.10/31/08), 994 So.2d 532, the defendant was stopped in a high crime area for a traffic violation and was observed concealing something “within a type of compartment in which police officers tend to find secreted weapons.” The officer testified that the purpose of his search was to uncover any firearms therein, and the search uncovered cocaine. The appellate court found that the state had presented evidence that the officer’s protective search was reasonable under Long, supra, and found that the state had borne its burden of proving that exceptions to the warrant requirement existed. Given the facts and the great weight afforded a trial court’s denial of a motion to suppress, the court found no error in the trial court’s denial of suppression.

17This was clearly a lawful traffic stop, and law enforcement officers are always justified in ordering the occupants out of a stopped vehicle. For officer safety, they need to see the hands of the occupants. See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); and Landry, supra.

The broken gun magazine was seen as the defendant exited the car. All these facts support both a frisk of the passenger compartment, as well as a full probable cause search of the entirety of this vehicle, predicated upon:

• the high speed at which the defendant had been traveling;
• the defendant’s nervous state;
• the presence of the previously hidden magazine;
• the nature of the high crime area where-the stop occurred;
• the late hour of this traffic stop; and
• the gang tattoo on defendant’s hand.

The alleged potential discrepancy as to when Corporal Feliciano discovered the broken magazine was addressed by the officer during cross-examination. He clarified that when he stated he later discovered the magazine, he was referring to after he saw the defendant attempt to conceal something under his leg; “later” referred to when the defendant exited the | ^vehicle. Obviously, the trial court believed the officer’s explanation of the events.

The defendant also argued that Corporal Feliciano’s dash camera showed that he stopped three other males that night and conducted three warrantless searches of their vehicles. This is of no moment. Regardless of any other warrantless searches, the only search that matters in this case is the search conducted by Corporal Feliciano of the car driven recklessly by this defendant, under the facts and circumstances of this stop.

Hearsay

Defendant objects to the admission of a portion of the testimony of Detective Shawn Hindenberger relative to the results of a gunshot residue test. Alternatively, he asserts that his trial counsel was ineffective for failing to make a contemporaneous objection in this regard.

Det. Hindenberger testified that he interviewed the defendant as part of his duties, that the defendant admitted ownership of the gun but denied firing it, and that the defendant submitted to a gunshot residue test. The defendant admits there was no contemporaneous objection when Det. Hindenberger further testified that there was a positive reading on the residue test, yet the defendant still denied firing the gun.

The defendant argues that:

• the swatch in the gunshot residue kit was removed and never recovered;
• the kit packaging, minus the swatch, was introduced into evidence over defense counsel’s objection;
|a* the results of the test should not have been admitted because Hindenber-ger’s testimony was inadmissible hearsay and violated the defendant’s right of confrontation; and
• in the event this court finds that the issue is not preserved for appellate review because there was no contemporaneous objection, then trial counsel was ineffective because there could be no strategic reason for counsel not to have objected to the testimony.

The state argues that without a contemporaneous objection, the alleged error is not subject to appellate review.

Further, as to the question of ineffective assistance of counsel, nothing was presented to support or suggest a different outcome would have been had at trial, but for the admission of this testimony. The defendant failed to establish a reasonable probability of a different outcome.

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Jones, 41,299 (La.App. 2d Cir.11/9/06), 942 So.2d 1215; State v. Smith, 39,698 (La.App. 2d Cir.6/29/05), 907 So.2d 192.

Generally, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App. 2d Cir.9/26/07), 966 So.2d 139. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App. 2d Cir.9/27/95), 661 So.2d 673.

| mOur law on ineffective assistance of counsel is well settled.

In State v. Boyer, 406 So.2d 143 (La.1981), the Louisiana Supreme Court held that results of a neutron activation test, used to determine whether a person has recently fired a hand weapon, were not inadmissible hearsay since the test results did not assert anything by themselves and were meaningless without interpretation by the expert who was available for questioning.

In the first place, it is not at all clear to us that the offending testimony was hearsay. Hindenberger was testifying to a test procedure that he himself performed and to his observation of the result. The test did not | n require any expert knowledge to perform or to state that there was a “positive result” to the extent of an observable change.

Furthermore, Det. Hindenberger was present for cross-examination as to his performing the test, and he could have been examined about his knowledge, or lack thereof, as to the way the test worked, its accuracy, and any other relevant questions, and defendant’s counsel could have called a witness as to shortcomings or other problems with such a test. On the other hand, defendant’s counsel could have objected to Hindenberger’s lack of expert qualifications to testify about the significance of the test results and the scientific basis for the test.

We find that counsel’s performance was not ineffective because failure to exclude Hindenberger’s testimony about gunshot residue cannot be said to have created a reasonable probability that the outcome of the trial would have been different. The defendant was stopped with the murder weapon shortly after the crime about a mile from the crime scene. His clothing matched the description of the assailant. He had been traveling at a high rate of speed and attempted to flee on foot once the gun was discovered in his vehicle. Guilty as sin.

Error Patent

The trial court did not advise the defendant at sentencing of the period within which to apply for posLconviction relief. Accordingly, the defendant is advised by this opinion, that except as otherwise provided in La. C. Cr. P. art. 930.8, no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if filed |t2more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. art. 914 or 922.

CONCLUSION

The defendant’s conviction and sentence are AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

LOLLEY, J., would not consider a rehearing.

      . Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

      . Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

      .Raising the questions: Where are the low crime areas? Do any exist?

      . Same questions.

      . And arguably, the weapon itself.

        .See Michigan v. Long, supra.

      . The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      To establish that his attorney was ineffective, the defendant first must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney's performance requires his conduct to be evaluated from counsel's perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel's judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Tilmon, 38,003 (La.App. 2d Cir.04/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866.
      Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App. 2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067.


text:
    Joseph McLEOD and Rebecca McLeod, Plaintiff-Appellant v. Lile M. MOORE, Jr., Mike Moore Trucking, Inc., and Double R Transport, Inc., Defendant-Appellee.
    No. 44,022-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      W. Mark McKee, Columbia, for Appellants, Joseph McLeod & Rebecca McLeod.
    Eskridge Elgin Smith, Jr., Bossier City, Linda Lea Smith, for Intervenor-Appel-lees, Gray Insurance Company and Double R Transport, Inc.
    Theus, Grisham, Davis & Leigh, LLP by Phillip Doyce Myers, Monroe, for Appel-lee, D & J Construction Company.
    Lavalle Bernard Solomon, for Appellee, Lile M. Moore, Jr.
    Before GASKINS, DREW and MOORE, JJ.
   DREW, J.

| Joseph McLeod and his wife, Rebecca McLeod, appeal a judgment dismissing their claims against D & J Construction Company (“D & J”). We affirm.

FACTS

Joseph McLeod was employed as a truck driver by Double R Transport, Inc. (“DRT”). DRT was owned by Richard Richardson, who also owned D & J. DRT hauled materials exclusively on behalf of D & J.

In October of 2005, D & J was engaged in a road construction project (“project”) along 1-20 in West Monroe. D & J utilized the services of several trucking companies in addition to DRT to haul hot asphalt from its plant to the project site. Among these tracking companies was Moore Trucking Company, Inc. (“MTC”), which was owned by Lile Moore. While McLeod and Moore were waiting at the project site to deliver loads of hot asphalt, they allegedly began fighting, which resulted in injury to McLeod.

McLeod and his wife filed suit against Lile Moore, Mike Moore Trucking, Inc., and D & J. The McLeods asserted that Moore was an employee of D & J. D & J filed an answer denying that Moore was its employee or a borrowed servant at the time of the incident. A petition of intervention was filed by DRT a/k/a D & J and its insurance company to recover workers’ compensation benefits paid to McLeod.

D & J filed a motion for summary judgment against the main claim. Submitted in support of the motion were affidavits and excerpts from depositions. Submitted in opposition to the motions were depositions and | .¿corporate information regarding DRT and D & J. The trial court granted D & J’s motion for summary judgment and dismissed the claim against it. The McLeods have appealed.

DISCUSSION

A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Independent Contractor

The McLeods argue that Moore was not an independent contractor; rather, he was an employee of D & J who supplied his own equipment but was controlled by D & J, accordingly making D & J vicariously liable for the damages that Moore allegedly caused the McLeods.

Generally, masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed. See La. C.C. art. 2320. In contrast, a principal generally is not liable for the offenses committed by an independent contractor while performing its contractual duties. Ledent v. Guaranty Nat Ins. Co., 31,346 (La.App.2d Cir.12/28/98), 723 So.2d 531.

l :.The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Tower Credit, Inc. v. Carpenter, 2001-2875 (La.9/4/02), 825 So.2d 1125.

The supreme court has found the following factors to be 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. Hickman v. Southern Pac. Transport Co., 262 La. 102, 262 So.2d 385 (1972).

The most important inquiry is whether the principal retained the right to control the work. When applying this test, it is not the supervision and control actually exercised that is significant; the important question is whether, from the nature of the relationship, the right to do so exists. Hickman, supra; Ledent, supra.

Moore started his own trucking business in 1993 and began providing trucking services at that time to D & J, which is owned by his mother’s brother-in-law. In 1998, Moore started a new trucking business under the |4name of Moore Trucking Company of West Monroe. In 2005, MTC owned several dump trucks and paid for its own liability insurance on the trucks and its own workers’ compensation insurance. If MTC’s trucks ever needed repairs, Moore paid his father’s mechanic to perform the work.

For as long as Moore has owned trucks, he has had a verbal agreement with D & J to provide trucks to haul construction materials when needed by D & J. Although other companies utilized MTC’s hauling services, MTC was obligated to provide its trucks first to D & J when needed. In 2005, 80% of MTC’s work was done on behalf of D & J. MTC was not the only trucking company used to haul asphalt for D & J on the project, as companies owned by Moore’s brother and father were also used. Moore guessed that the project had started about a week before the fight occurred.

D & J agreed to pay MTC $4.50 per ton of asphalt hauled from its asphalt plant to the project site. Moore was not paid directly by D & J. Moore’s wife would send an invoice from MTC to D & J each Monday for the prior week’s work, and D & J would pay with a check made out to MTC. In 2005, D & J never issued a payroll check payable to Moore for trucking services, nor did D & J file any W-2s listing Moore as an employee.

Moore parked his trucks overnight at a garage leased by his father and used by the family members’ trucking companies. Jerry White, D & J’s Vice-President of Operations, would contact Moore’s mother each evening to tell her the number of trucks that were going to be needed the next day and where they were to go. White based the number of trucks needed on how much work the asphalt crew predicted they could perform the next day. | ^Moore’s mother then relayed this information to Moore and the rest of his family, and they usually decided among themselves who would send trucks.

D & J controlled the process of loading and unloading the asphalt, and all drivers were expected to operate under the same D & J rules and procedures for loading, delivering, and unloading the asphalt. For example, the load was dumped when the drivers were told to dump it, and the drivers left the project site when they were told to leave. If the paving crew said a load was not going to be dumped, then it was not dumped. MTC’s trucks had to be at the plant before a certain time each day when the loading process started up, but how early they arrived was otherwise up to them, and it was first come, first served, at the plant, although a plant worker could pull a truck out of line. Because the hot asphalt would harden as it cooled and because D & J did not want to keep its spreader at the project site waiting, MTC’s drivers were expected to deliver the asphalt as soon as possible. Once Moore left the asphalt plant, he controlled where he stopped and the duration of his stops as long as his stops were reasonable, although he was expected to keep the loads coming while still obeying traffic laws. MTC’s drivers continued delivering loads during the day until stopped by the foreman at the project or at the plant.

Even though the inquiry into whether or not Moore was an independent contractor is a fact-intensive one that is determined on a case-by-ease basis, it is helpful to examine the particular facts in Hickman, where Fowler, a truck driver, was found to be an employee of Southern Pacific.

1 f,Fowler’s job responsibilities for Southern Pacific were extensive. They included unloading trucks at Southern Pacific’s warehouse, obtaining bills of lading and loading freight onto his truck, delivering freight, collecting freight charges and remitting the collections to Southern Pacific’s agent, picking up freight from customers, and keeping the warehouse clean. A depot agent often determined the order of deliveries and pickups. In the case at hand, Moore was expected only to bring his truck to the plant for loading, and then to deliver the asphalt to the construction site.

Like Moore, Fowler owned and maintained insurance on his truck. However, except for a job opening graves for a funeral home, Fowler worked only for Southern Pacific. Although MTC hauled primarily for D & J, Moore also made his trucks available for hauling materials on behalf of others in the construction industry.

Fowler’s work for Southern Pacific was considered to be routine as he reported to work at Southern Pacific’s depot at the same time each morning. By contrast, Moore did not report for work with D & J each morning. MTC’s trucks showed up at the asphalt plant only on the days that their trucks were needed.

The rate of Fowler’s compensation was based upon the weight of the freight that he handled. Fowler was paid by a monthly check from Southern Pacific, with the cost of cargo insurance the only deduction. No other deductions were made. MTC’s rate of compensation was somewhat similar, but Moore was not paid directly by D & J, which was billed by MTC. There were no employee withholdings from the payment given to MTC.

17FowIer had a written contract with Southern Pacific. The contract could be terminated by either party with 30 days’ notice, although Southern Pacific retained the right to terminate the contract at any time if it determined that Fowler’s services were unsatisfactory. MTC did not have a written contract with D & J, but there was a verbal agreement or understanding. The lack of a written contract is of no significance in this instance. See Tate v. Progressive Security Ins. Co., 2008-0950 (La.App. 4th Cir.01/28/09), 4 So.3d 915.

There are no material facts in dispute. The issue is whether, as a matter of law, the facts as presented establish that Moore was an employee of D & J. They do not. Moore was an independent contractor.

Borrowed Servant

The McLeods next contend that Moore was a borrowed servant of D & J. Regarding the test of whether an individual is a borrowed servant, this court has stated:

In deciding whether a borrowed employee relationship exists, the following factors are important to consider in making such a determination: (1) who has the right of control over the employee beyond the mere suggestion of details or cooperation; (2) who selected the employee; (3) who paid the employee’s wages; (4) who had the right to fire the employee; (5) who furnished the tools and the place to perform the work; (6) was the new employment over a considerable length of time; (7) whose work was being done at the time of the accident; (8) was there an agreement between the borrowing and lending employers; (9) did the employee acquiesce in the new work situation; and (10) did the original employer terminate his relationship with or relinquish his control over the employee.

|sCitations omitted. Clarendon Nat. Ins. Co. v. Jeansonne & Remondet, L.L.C., 37,765 (La.App.2d Cir.10/23/03), 859 So.2d 877, writ denied, 2004-0002 (La.3/12/04), 869 So.2d 826.

Control over the worker is the most important of the factors. Wells v. Traynor, 2004-0064 (La.App. 4th Cir.12/01/04), 892 So.2d 21, cert. denied, 546 U.S. 984, 126 S.Ct. 563, 163 L.Ed.2d 473 (2005).

Considering that Moore owned MTC, it would be highly unusual for D & J to borrow Moore from MTC. Moore, standing in the shoes of MTC, certainly would not terminate the relationship with himself or relinquish control over himself. There was no agreement that MTC would loan Moore to D & J, and there was no acquiescence by Moore to a new work situation. Moore furnished his own trucks and maintained them. Only part of his work was performed at D & J’s facilities, as he would have been on the road while in transit.

In support of their argument that Moore was a borrowed servant, the McLeods rely on Richardson v. Tate, 269 So.2d 278 (La.App. 4th Cir.1972), writs denied, 271 So.2d 260, 261 (La.1973), where the tortfeasor, Tate, who drove a truck carrying asphalt for a hauling contractor, B.T. Moore, was found to be a borrowed servant of James, who produced the asphalt and then had it delivered to the site where James was building a parking lot. B.T. Moore derived between 80% and 90% of his business income from James; they had a verbal agreement where compensation was fixed at a stipulated price per ton. Tate was subject to the directions of James’s personnel at both the loading and unloading sites. The operations at | ^James’s asphalt plant also determined when Tate would begin and end working each day.

Tate did not own the truck he drove, as the truck was owned by the hauling contractor. In addition, Tate was merely the driver. In this case, Moore was both the hauling contractor and the driver. Another crucial difference between Tate and this matter is that James caused B.T. Moore to fire one driver by insisting that the driver no longer drive. There is no evidence that D & J has ever caused Moore to fire any of his employees, much less himself.

As with the independent contractor issue, the material facts are undisputed. The facts as presented do not establish, as a matter of law, that Moore was a borrowed servant of D & J. The trial court was correct in its finding that Moore was neither an employee nor a borrowed servant of D & J.

DECREE

At appellants’ costs, the judgment is AFFIRMED.

      . MTC did business as Moore Trucking of West Monroe.


author: STEWART, J.

text:
    CARTER LOGGING, L.L.C., Plaintiff-Appellee, v. Dorothy Morman FLYNN, Mary Helen Morman, Wash Morman and Alfredia Q. Morman, Defendants-Appellants.
    No. 44,188-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Claire P. Sharp, for Appellants.
    James H. Colvin, Shreveport, for Appel-lee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   STEWART, J.

| j Defendants/Appellants, Dorothy Mor-man Flynn, Mary Helen Morman, Wash Morman, and Alfredia Q. Morgan (“the Mormans”), are appealing a summary judgment granted in favor of the Plaintiff/Appellee, Carter Logging, L.L.C., (“Carter”). Finding no merit in the Mor-mans’s claims, we affirm the trial court’s judgment.

Facts

This case involves a dispute over a sale of timber on a 240-acre tract of land. Prior to the execution of the timber deed at issue, Carter drafted and executed a cash deed transferring Alfredia Morman’s 1/5 interest in a 38-acre tract of land to Carter Logging on March 22, 2004 for the sum of $1,200.00. Carter claims that it checked the title on the 38-acre tract and confirmed that the tract was owned by the heirs of Orie Norman, who was deceased and left five children: Mary Helen Mor-man, Euradell Aubrey, Dorothy Morman Flynn, Wash Morman, and Alfredia Mor-man. Carter drafted an Affidavit of Death and Heirship stating that fact. The affidavit was also executed on March 22, 2004.

Shortly thereafter, Carter and the Mor-mans executed a timber deed, in which Carter purchased the timber on the 240-acre tract of land. In the Timber Deed, the Mormans warranted that they owned all of the timber on this tract of land and had good, merchantable, and unencumbered title to it. Sometime between February and March of 2004, Carter paid the Mormans $8,000.00, which was to serve as an advance on the timber that would be harvested from the 240-acre tract. Pursuant to the timber deed, which [ .¿provided for 80 acres to be cut per year and to be planted by Carter Logging, they began harvesting the timber.

On April 6, 2005, Carter was forced to cease harvesting the timber after Andre Morman and Scotty Morman, who were owners of the tract but not parties to the timber deed, filed suit against Carter, alleging that together they owned 75% of the 240-acre tract in question. Carter settled this suit for the sum of $10,650.00.

Carter claims that they had title work performed on the 38-acre tract, that the Mormans owned 80% of the timber on this tract, and that the Mormans told Carter that they had the same ownership interest in the 240-acre tract. The Mormans deny this allegation and argue that Alfredia Morman did not own 1/5 interest in the 38-acre tract. Rather, the 38-acre tract had been partitioned by the same attorney, David Newell, who originally represented Carter in this case. Therefore, the 38-acre tract was not owned in indivisión, like the 240-acre tract.

On April 4, 2006, Carter subsequently filed suit against the Mormans to recover the $8,000.00 advanced to them, along with the $10,650.00 paid to Andre Morman and Scotty Morman, plus costs, attorney’s fees and interest from the date of judicial demand.

Carter filed a motion for summary judgment, alleging that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Carter contends that the Mormans breached the timber deed by warranting that they were the owners of the timber and had good, | .¡merchantable, and unencumbered title to the timber when, in fact, there were two other co-owners. After reviewing the timber deed and other supporting evidence, the trial court granted the motion on July 2, 2008. It held that there was no genuine issue of material fact, and that Carter was entitled to judgment as a matter of law, because the Mormans breached the warranty of good and merchantable title contained in the timber deed, as well as the warranty of eviction implied by law in every sale. The trial court stated that the language in the deed was clear and unambiguous, rendering parol evidence inadmissible. Carter was awarded $18,650.00, plus legal interest and the cost of the proceedings.

LAW AND DISCUSSION

Extrinsic Evidence

The Mormans assert that the trial court erred in granting Carter’s motion for summary judgment and present three main issues to support this assertion. In the first issue, the Mormans assert that ambiguity in the timber deed requires it to be interpreted with reliance on extrinsic evidence.

Carter contends that the timber deed is unambiguous and proves that the Mor-mans clearly breached the warranty of good and merchantable title and the implied warranty of eviction.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

I/The Louisiana Code of Civil Procedure article 966 states in pertinent part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
(2)The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
B.The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art.2048.

A person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain its meaning. Dulin v. Levis Mitsubishi, Inc., 2001-2457 (La.App. 1 Cir. 12/20/02), 836 So.2d 340, writ denied, 2003-0218 (La.3/28/03), 840 So.2d 576.

When a contract may be interpreted from the four corners of the agreement, without consideration of extrinsic evidence, the interpretation is a matter of law. ScenicLand Construction Co., L.L.C. v. St. Francia Medical Center, Inc. 41,147 (La.App.2d Cir.7/26/06), 936 So.2d 251; NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., supra. In such cases, appellate review considers whether the trial court was legally correct or legally incorrect. Lawrence v. Terral Seed, Inc., 35,019 (La.App.2d Cir.9/26/01), 796 So.2d 115, writ denied, 2001-3134 (La.2/1/02), 808 So.2d 341.

In the instant case, the timber deed may be interpreted from within the its four corners, without the use of extrinsic evidence. The timber deed included the following statement:

4. Seller warrants that all timber located on the above described property, and sold to Buyer, is owned by the Seller and that the Seller has good, merchantable and unencumbered title thereto and have the right to sell the same.

The Mormans contend that the timber deed is ambiguous because Carter argued at the motion for summary judgment hearing that the “all timber” language within the timber deed actually meant eighty percent. The Mormans misinterpreted Carter’s statement. Carter was referring to La. R.S. 3:4278.2, which requires the consent of at least eighty percent of the ownership interest in the land before a buyer who purchases the timber can remove it. So long as the buyer has the consent of at least eighty percent of 16the co-owners or co-heirs, he can remove one hundred percent of the timber. Louisiana Revised Statute 3:4278.2(B) states, in pertinent part:

B. A buyer who purchases the timber from a co-owner or co-heir of land may not remove the timber without the consent of the co-owners or coheirs representing at least eighty percent of the ownership interest in the land, provided that he has made reasonable effort to contact the co-owners or co-heirs who have not consented and, if contacted, has offered to contract with them on substantially the same basis that he has contracted with the other co-owners or co-heirs.

This contention bears no relevance to the fact that the Mormans breached the timber deed with Carter by selling them the rights to timber, when they had no right to sell. The language in the timber deed clearly and unambiguously states that the Mormans are warranting that all the timber on the 240-acre tract sold to Carter, is owned by the Mormans and that the Mor-mans have good, merchantable and unencumbered title to this property. Even though the Mormans did not have “good merchantable, and unencumbered title,” such that they could convey any timber to Carter, they nevertheless accepted the $8,000.00 advance from Carter for timber that they could not convey.

The Mormans also argue that the following language includes warranty claims and frees them from liability. Therefore, there remains a genuine issue of material fact. The timber deed states:

7. Buyer agrees to forever indemnify and hold Seller harmless from any and all:
|7(a) liability for personal injuries or property damage sustained by an employee, agent, or any third party;
(b) claims, demands, debts, liens, causes of action, civil or criminal penalties, whatsoever;
(c) other kinds of action, arising out of or in any manner incident to the timber operations conducted by Buyer under this contract.

Agreements to indemnify are strictly construed, and the party seeking to enforce such an agreement bears the burden of proof. McGill v. Cochran-Sys-co Foods, 35,898 (La.App. 2 Cir. 5/8/02), 818 So.2d 301. Moreover, indemnity is not available to a party who is actually negligent. Id. In this case, the Mormans failed to overcome this burden to prove that they are protected under the indemnification provision in the timber deed.

Additionally, the Mormans breached the warranty of eviction. The seller warrants the buyer against eviction, which is the buyer’s loss of, or danger of losing, the whole or part of the thing sold because of a third person’s right that existed at the time of the sale. La. C.C. art. 2500. The warranty against eviction is implied in every sale. La. C.C. art. 2503. A buyer who avails himself of the warranty against eviction may recover from the seller the price he paid, the value of any fruits he had to return to the third person who evicted him, and also other damages sustained because of the eviction with the exception of any increase in the value of the thing lost. La. C.C. art. 2506.

It was implied that Carter would not be evicted while harvesting the timber that the Mormans sold to it. Unfortunately, the Mormans breached |8this warranty when Carter was evicted by Andre and Scotty Morman, which resulted in Carter sustaining additional damages in the amount of $10,650.00. As such, the Mor-mans are answerable to Carter for those damages.

The trial court granted Carter’s motion for summary judgment, finding that there was no genuine issue of material fact and that Carter was entitled to judgment as a matter of law. More specifically, the trial court found that the Mormans breached the warranty of good and merchantable title contained within the timber deed and the implied warranty of eviction.

After reviewing the record in its entirety, we find no manifest error in the trial court’s conclusion that the summary judgment was appropriate, based on the Mor-mans’ breach of the above mentioned warranties. Therefore, this assignment of error bears no merit.

Parol Evidence

In the second issue, the Mormans contend that Carter waived its objection to parol evidence when it relied on parol evidence in its pleadings, arguments and depositions by using verbal statements made by the Mormans. In the third and final issue, the Mormans argue that Carter waived its objection to parol evidence because Carter was aware that it was not getting all the timber as stated in the timber deed and that the timber deed did not reflect the intent of the parties.

As a general rule, parol evidence is inadmissible to modify, vary, explain, or contradict the terms of a writing. Kean v. Lemaire, 451 So.2d 151 (La.App. 1 Cir.1984). However, there are limited circumstances where parol evidence will be admissible. La. C.C. art. 1848 provides:

Testimonial or other evidence may not be admitted to negate or .vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent valid oral agreement.

The Mormans argue that even if the wording of the timber deed is clear and unambiguous, evidence is admissible to show that the agreement was modified or to show a mistake. As we discussed in the first assignment of error, the timber deed is clear and unambiguous. Carter’s intent and the Mormans’ intent can be determined from the four corners of the timber deed. For this reason, we cannot consider evidence, in addition to the actual timber deed.

As we have already concluded that the trial court did not err in determining the timber deed was clear and unambiguous and extrinsic evidence is not permitted, a detailed discussion of second and third assignments of error is pretermitted.

CONCLUSION

For the reasons discussed above, we affirm the trial court’s judgment. Cost of this appeal are assessed against the Mor-mans.

AFFIRMED.

      . Carter subsequently transferred the property back to Alfredia Morman for the sum of $800.00.

      . David Newell testified under oath that he could not recall being asked to perform title work on the 38-acre tract.