Plaintiff filed a personal injury action against his employer, Industrial, and other defendants for sustaining injuries when falling from Industrial’s helicopter. Industrial’s principal business was applying aerial herbicide. Part of Industrial’s business included supplying helicopters for fish and game surveys and captures. Co-defendant and president of Industrial, also owned a company named Game Management, Inc. (GMI). GMI performed wildlife surveys in Mexico which included the aerial tracking and capturing of deer. On the weekend of the accident, plaintiff was serving as a deer netter in Mexico.

Plaintiff filed a petition for damages alleging he was not in the course and scope of his employment with Industrial at the time of the accident, and further, that he was an exclusive employee of Industrial. The trial court, however, found GMI was Plaintiff’s special employer who had borrowed him from his general employer, Industrial. Accordingly, the trial court found both companies solidarily liable for worker’s compensation benefits, and thus, immune from suit in tort.

On appeal, the appellate court found GMI was not a borrowing employer, thus rendering Industrial and not GMI liable for worker’s compensation benefits if plaintiff was in the course and scope of his employment with Industrial at the time of the accident. Initially, Industrial argued plaintiff was not in the course and scope of his employment. Plaintiff filed a partial motion for summary judgment pertaining to Industrial’s tort immunity because Industrial judicially admitted plaintiff’s injuries did not occur in the course and scope of his employment with industrial. The trial court denied the motion and proceeded to trial. The jury found plaintiff was in the course and scope of his employment with Industrial at the time of the accident. Accordingly, the trial court entered judgment in favor of Industrial based upon the jury’s finding that plaintiff was in the course and scope of his employment.

Plaintiff appealed, asserting the trial court erred in denying the summary judgment motion and allowing Industrial to assert immunity as plaintiff’s direct employer because Industrial judicially confessed that plaintiff was not in the course and scope of his employment during the accident. Industrial stated in multiple documents filed into the record that plaintiff was not doing the work of Industrial but rather GMI’s work during the accident. Industrial asserted that its multiple statements were merely part of alternative arguments and that plaintiff’s employment status was a central issue to the case from the start.

The appellate court disagreed, concluding that the statements were not part of alternative arguments. The court found Industrial judicially confessed that plaintiff was not in the course and scope of his employment with Industrial as the record is replete with statements by Industrial expressly acknowledging this fact. It was only after plaintiffs filed their motion for summary judgment as to Industrial’s ineligibility for tort immunity did industrial attempt to retract their multiple statements.

Hebert v. Richard