* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 17, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 L iberty 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 fo und that the employee’s injury at

issue arose out of and in the course of her employment. We AFFIRM.1 In re Endeavor Marine Inc.

, 234 F.3d 287, 290 (5th Cir.

2000).

2 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 ra ped 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 settl ed 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. Surrat t’s injury “arose out of”

and occurred “in the course of” her employment. The district

court’s subject matter juri sdiction was based on diversity, and

Louisiana law applies. Our review of the summary judgment is de

novo. 12 Mundy v. Dep’t of Health and Human Res.

, 593 So.2d 346, 349

(La. 1992).

3 Id

.

4 Id

.

5 Id

.

3 II

In Louisiana, an injury occurs in the course of one’s

employment when “the employee su stains an injury while actively

engaged in the performance of his duties during working hours,

either on the emplo yer’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 whet her 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 t o 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 normal ly not be responsible.” 5 The

Louisiana Supreme Court has noted various situations where an

injury arises out of employment.6 Id . (internal citations omitted).

7 Id

.

8 Id

.

9 Id . at 350.

10 Id . at 348.

4 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 ar ise 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 incre ased 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 M undy

, a nurse was attacked before

work while riding the hospital’s elevators to her floor. 1 0

Louisiana law entitled the employer to tort immunity if it showed11 Id . at 349.

12 Id . at 350 (emphasis added).

13 Id

.

14 Id . at 351.

5 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 ge neral 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” s howing 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 to15 Id. at 349.

6

the employee than to the general public. But M undy 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 M undy is

indistinguishable because bot h 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 un der 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 o ccur 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

casin o. 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 condi tion of her16 Id . at 349.

7

employment was that she park in the employees’ lot. Despite being

off the clock, Ms. Surratt’s compliance with the par king policy

constitutes an employment activity and effectively places her under

the control of her employer. Therefore, M undy 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 t he 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 empl oyee than the

general public, Liberty has met t he 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 was17 Id

.

8

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 e mployer

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 th e district court’s

summary judgment.