United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-30927
Summary Calendar
LOUISIANA CASINO CRUISES, INC., d.b.a. CASINO ROUGE UNDERWRITERS
INSURANCE CO.; AFG MAT; CERTAIN UNDERWRITERS AT LLOYDS; OSPREY
UNDERWRITING AGENCY LTD,
Plaintiffs - Appellants,
versus
LIBERTY MUTUAL FIRE INSURANCE CO.,
Defendant - Appellee.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 02-CV-937-D-M3
--------------------
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Louisiana Casino Cruises, Inc. (“LCCI”)
appeals the district court’s order granting summary judgment in
favor of Liberty Mutual Fire Insurance Company (“Liberty”).
Liberty’s insurance policy excluded coverage for injuries arising
out of and in the course of employment. The district ordered
summary judgment because it found that the employee’s injury at
issue arose out of and in the course of her employment. We AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
The facts are undisputed. Dorothy Surratt was an employee of
LCCI on February 9, 1998. LCCI is the owner of a gaming ship that
operates on the Mississippi River in Baton Rouge, Louisiana. While
attempting to leave work, Ms. Surratt was attacked in the
employees’ parking lot and raped in her car. An LCCI policy
required Ms. Surratt to park in the employees’ parking lot owned by
LCCI. The distance from the employees’ lot to the casino is about
400 yards.
Ms. Sarratt sued LCCI and won a judgment. LCCI and its P&I
insurers eventually settled with Ms. Surratt and then demanded
contribution from Liberty based on its Commercial General Liability
Policy. Liberty’s CGL policy excluded injuries to employees that
arise out of and occur in the course of employment. Based on this
exclusion, the district court granted Liberty’s motion for summary
judgment.
The question is whether Ms. Surratt’s injury “arose out of”
and occurred “in the course of” her employment. The district
court’s subject matter jurisdiction was based on diversity, and
Louisiana law applies. Our review of the summary judgment is de
novo.1
1
In re Endeavor Marine Inc., 234 F.3d 287, 290 (5th Cir.
2000).
2
II
In Louisiana, an injury occurs in the course of one’s
employment when “the employee sustains an injury while actively
engaged in the performance of his duties during working hours,
either on the employer’s premises or at other places where
employment activities take the employee.”2 Although the category
has been extended to include “accidents during times for rest or
lunch periods or before and after work on the employer’s premises
. . . , the principal criteria for determining course of employment
are time, place and employment activity.”3
To determine whether an injury arises out of employment, a
court “focuses on the character or source of the risk which gives
rise to the injury and on the relationship of the risk to the
nature of the employment.”4 The objective of the “arising out of”
analysis is to “separate accidents attributable to employment
risks, which form the basis of the employer’s obligation under the
compensation system, from accidents attributable to personal risks,
for which the employer should normally not be responsible.”5 The
Louisiana Supreme Court has noted various situations where an
injury arises out of employment.
2
Mundy v. Dep’t of Health and Human Res., 593 So.2d 346, 349
(La. 1992).
3
Id.
4
Id.
5
Id.
3
An accident arises out of employment if the
risk from which the injury resulted was
greater for the employee than for a person not
engaged in the employment. Moreover, an
accident has also been held to arise out of
employment if the conditions or obligations of
the employment caused the employee in the
course of employment to be at the place of the
accident at the time the accident occurred.
Thus, when the employee is squarely within the
course of his employment, virtually any risk
(whether an increased risk or not) has been
considered as arising out of employment.6
The inquiry, of course, is fact-intensive.
The “in the course of” and “arising out of” requirements are
interdependent.7 “In a close case a strong showing of ‘course of
employment’ has been held to counterbalance a relatively weak
showing of ‘arising out of employment.’”8 And when there is a weak
showing of “course of employment,” “a very strong showing by the
employee that the risk arose out of the employment is necessary to
establish the relationship between the injury and the employment.”9
Both parties rely on Mundy, the Louisiana Supreme Court case
explaining these principles. In Mundy, a nurse was attacked before
work while riding the hospital’s elevators to her floor.10
Louisiana law entitled the employer to tort immunity if it showed
6
Id. (internal citations omitted).
7
Id.
8
Id.
9
Id. at 350.
10
Id. at 348.
4
the injury occurred in the course of and arose out of employment.11
The court reasoned that the risk of attack in a public elevator was
no greater to the nurse than it was to the general public, and
although “the conditions of the employment arguably caused
plaintiff to be at the place of the attack at the time the attack
occurred, there were other alternative routes for her to reach her
work station.”12 Based on these considerations, the court found
only a weak “arising out of” showing, which required a strong
“course of employment” showing for the employer to prevail.
However, the court found a weak “course of employment” showing
because the nurse was attacked before her employment duties began,
she was in a public area, and she was not under the supervision and
control of the employer.13 Weighing these considerations, the court
found the employer was not entitled to immunity because the nurse’s
injury did not occur in the course of and arise out of her
employment.14
III
LCCI asserts that Mundy is dispositive. LCCI reads Mundy as
holding that when an injury occurs before or after work, it arises
out of one’s employment only if the risk of injury was greater to
11
Id. at 349.
12
Id. at 350 (emphasis added).
13
Id.
14
Id. at 351.
5
the employee than to the general public. But Mundy is not so
limited. The court also noted that an injury may arise out of
employment if the conditions of employment caused the employee in
the course of her employment to be at the place of the accident
when it occurred.15 Nonetheless, LCCI contends that Mundy is
indistinguishable because both the nurse and Ms. Surratt were at
the location of attack because of their employment, off the clock,
not performing an employment activity, and not under the
supervision or control of their employers. Based on these
similarities, LCCI asserts that Ms. Surratt’s injury, like that of
the nurse, did not arise out of and occur in the course of her
employment.
LCCI’s assertions do not account for material factual
distinctions between Mundy and this case. The nurse in Mundy was
not required as a condition of employment to take the elevator in
which she was attacked. Here, however, Ms. Surratt was required to
park in the employees’ parking lot. This requirement was for the
benefit of LCCI, leaving the closer spaces for LCCI’s patrons.
LCCI’s parking policy left Ms. Surratt no choice but to park in the
employees’ lot and traverse the 400 yards between her car and the
casino. Furthermore, LCCI’s assertion that Ms. Surratt was not
performing an employment activity and was not under the control and
supervision of her employer is incorrect; a condition of her
15
Id. at 349.
6
employment was that she park in the employees’ lot. Despite being
off the clock, Ms. Surratt’s compliance with the parking policy
constitutes an employment activity and effectively places her under
the control of her employer. Therefore, Mundy is factually
distinguishable from the case at hand.
The district court did not err in finding that Ms. Surratt’s
injury arose out of and occurred in the course of her employment.
The injury occurred (1) immediately after her shift ended, (2) on
LCCI’s property, and (3) at a location where the employee was
required to be as a condition of employment. These facts satisfy
the time, place, and employment activity requirements under
Louisiana law and constitute an injury “in the course of”
employment. The injury arose out of her employment because “the
conditions or obligations of the employment caused the employee in
the course of employment to be at the place of the accident at the
time the accident occurred.”16
Even if LCCI is correct in asserting that Liberty must show
that the risk of injury was greater to the employee than the
general public, Liberty has met the burden. LCCI’s employee
parking policy placed Ms. Surratt at a greater risk than the
general public because it required her to routinely walk a greater
distance to the casino than the general public. Although the
general public had the option to park in the employees’ lot, it was
16
Id. at 349.
7
not a requirement. Finally, the fact that the injury resulted from
a random criminal attack does not require reversal; the risk of
such an attack was greater for Ms. Surratt because of the parking
policy. The policy made Ms. Surratt’s 400-yard walk to and from
the casino routine and predictable, allowing a would-be attacker to
better plan and execute an attack. Because the greater risk of
attack resulted from a condition of employment, the principal
objective of the “arising out of” requirement is satisfied - “to
separate accidents attributable to employment risks . . . from
accidents attributable to personal risks, for which the employer
should normally not be responsible.”17
Although the employment activity, coming after hours, may not
be squarely within her course of employment, its interrelation with
the arising out of showing compels us to find that the injury arose
out of and occurred in the course of Ms. Surratt’s employment.
Liberty’s insurance clearly excludes injuries that arise out of and
occur in the course of employment.
IV
For the foregoing reasons, we AFFIRM the district court’s
summary judgment.
17
Id.
8