Ermert v. Hartford Insurance Company

559 So. 2d 467 (1990)

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Nature of the Case

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Facts

Ermert (P) was accidentally shot in the foot by Decareaux (D) while a guest at a hunting camp. Besides being a member of the hunting group, Decareaux (D) was president of and majority stockholder in Nu-Arrow Fence Company (D). Decareaux (D) was expected to seize any opportunity to further company business regardless of time and place. Decareaux (D) used the hunting camp to entertain his employees and to promote his business. He invited all of the Nu-Arrow (D) employees to the camp either at the same time or a few at a time. Decareaux (D) paid for their expenses out of the petty cash fund. Decareaux (D) also took advantage of the camp to develop customers and make sales. He had sold fences to the majority of his fellow hunters, and he derived other business through references given by the regular members of the hunting group. He invited people who had purchased fences to the camp, and these customers also referred business. Nu-Arrow (D) derived economic benefit and provided economic assistance to the hunting camp. P was spending the weekend as a guest of Russell Larrieu at the hunting camp. P, Larrieu, Brumfield, Caillouette, Bourcq, and Decareaux (D) were at the hunting camp to build duck blinds for the upcoming duck season. As the members of the group were awakening on Sunday morning, someone told Decareaux (D) that there was a nutria swimming across the canal. Decareaux (D) picked up a shotgun and some shells. In violation of the general agreement among the group, he began loading the shells into the shotgun as he was walking in the camp house. The gun accidentally fired and struck P's foot, severely injuring it. He was rushed to a hospital, where several surgeries were performed. P is permanently disabled. P sued Decareaux (D), Nu-Arrow (D), and their insurers. P also alleged that Decareaux (D), Larrieu, Caillouette, Bourcq, Cummings and Brumfield and their respective insurers should be held jointly and solidarily liable because of their alleged joint venture or partnership relationship. P claimed that the hunting camp was owned by an unincorporated association composed of the six hunters in the group. The trial court granted a motion for summary judgment and maintained exceptions of no cause of action in favor of the hunting group defendants. P appealed, and the court reversed holding that the evidence showed that there was a 'club.' A trial was held, and the judge found the group was not a partnership and then concluded that there was no vicarious liability arising solely out of membership in such an organization. He applied 'general agency principles' and concluded that the club members were not vicariously liable for Decareaux's (D) tort because his actions were in direct contravention of the group's established policy. The trial court also held that Nu-Arrow (D) benefited from the camp's existence and was therefore liable for Decareaux's (D) negligence while working at the camp because Decareaux (D) was within the scope of his employment at the time of the accident. The court entered judgment against Decareaux (D) and Nu-Arrow (D) for damages in the amount of $595,000. Ds appealed. The court held that the members of the hunting group were liable for the damages, with the exception of Cummings, who was not present at the time of the accident. The court of appeal disagreed with the trial court's finding that Decareaux (D) was within the scope of his employment at the time of the accident. It concluded that on the weekend of the accident Decareaux was engaged in a purely personal recreational pursuit. Everyone appealed.