     Case: 09-30976     Document: 00511152053         Page: 1     Date Filed: 06/23/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           June 23, 2010
                                     No. 09-30976
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

WENDY Y. REYES, Widow of Juan Ramon Cornejo;
CLEMENTINO CORNEJO; JOSE A. RAMOS,

                                                  Plaintiffs-Appellants,

v.

HORNBECK OFFSHORE SERVICES, L.L.C.,

                                                  Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:08-CV-4488


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        The issue in this appeal is whether the district court erred when it granted
summary judgment in favor of Hornbeck Offshore Services, L.L.C. (Hornbeck).
The district court found that Scott Sclafani, an employee of Hornbeck, was not
acting in the course and scope of his employment when he was involved in an
automobile accident while commuting home at the end of his work day on
February 25, 2008. 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         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
   Case: 09-30976    Document: 00511152053 Page: 2       Date Filed: 06/23/2010
                                 No. 09-30976

      On February 25, 2008, Scott Sclafani, who was employed as a purchasing
manager for Hornbeck, was traveling home from his office around 5:30 p.m.
Sclafani was driving in the southbound land with his cruise control set at 65
miles per hour, and he changed into the right-hand lane where traffic seemed to
be moving faster. He looked down at the console for a moment but when he
looked up he discovered that the car that had been traveling in front of him was
nearly stationary. Sclafani had no time to react, and he collided with the car in
front of him while traveling at 65 miles per hour. The passenger in the rear seat
of the vehicle was killed. The passenger’s widow and children subsequently filed
suit against Sclafani and his liability insurer, State Farm. The plaintiffs have
also sued Hornbeck, claiming that Sclafani was acting in the course and scope
of his employment at the time of the accident and that Hornbeck is vicariously
liable for their damages.
      Grants of summary judgment are reviewed de novo, with this court
applying the same standard as the district court, viewing the evidence in the
light most favorable to the non-movant. Lauderdale v. Tex. Dep’t of Criminal
Justice, Institutional Div., 512 F.3d 157, 162 (5th Cir. 2007). Summary judgment
is appropriate when a review of the evidence reveals no genuine issue of material
fact, and the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(c)(2). “Conclusory allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for trial.” TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002) (citing SEC
v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
        Reyes argues that the distraction that caused the accident was an
employment-related cell phone call, and that this alleged call imposes vicarious
liability on Hornbeck. Reyes also argues that the district court erred in shifting
the burden of proof to the Appellants and that the effect of circumstantial
evidence was disregarded.

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                                 No. 09-30976

      Under Louisiana law, “[m]asters and employers are answerable for the
damage occasioned by their servants and overseers, in the exercise of the
functions in which they are employed.” La. Civ. Code art. 2320. For an employer
to be held vicariously liable for the tortious actions of its employee, the employee
must have been acting within the course and scope of his employment. Ellender
v. Neff Rental, Inc., 965 So. 2d 898, 901 (La. Ct. App. 2007). “[T]he determinative
question [when assessing vicarious liability] is whether the employee’s tortious
conduct was so closely connected in time, place, and causation to his employment
duties as to be regarded as a risk of harm fairly attributable to the employer’s
business, as compared with conduct motivated by purely personal considerations
entirely extraneous to the employer’s interest.” Id. (citing Richard v. Hall, 874
So. 2d 131, 139 (La. 2004)).
      Reyes relies heavily on the decision in Ellender where the court granted
summary judgment in favor of the plaintiff on the course and scope of
employment issue. We conclude, however, as did the district court, that the facts
in the present case are sufficiently distinguishable from Ellender. Sclafani was
commuting home at the end of the work day in his personal vehicle and was not
traveling for business. He was not given any compensation for his travel to and
from work, and, at the time of the accident, he did not have a company cell phone
for conducting business while driving.
      Louisiana courts have consistently held that traveling to and from work
is not an employment function for which the employer should be held liable.
Hargrave v. Delaughter, 10 So. 3d 245, 250 (La. Ct. App. 2009). Based on the
facts in the present case, Sclafani’s act of driving home after work was not “so
closely connected in time, place, and causation to his employment duties” that
he was acting within the course and scope of his employment at the time of the
accident. Ellender, 965 So. 2d at 901. Reyes’ mere speculation that the cause of
the distraction was a cell phone call and, further, that the cell phone call was
business related, is insufficient to support a showing of a genuine issue of

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                                 No. 09-30976

material fact at trial. See TIG Ins. Co., 276 F.3d at 759. Accordingly, the district
court properly held that no genuine issue of material fact exists in this case and
that Hornbeck is entitled to judgment as a matter of law.
      AFFIRMED.




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