STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
03-303
ANTHONY DESHOTEL, ET AL
VERSUS
GUICHARD OPERATING COMPANY, INC.
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 78,315 HONORABLE HERMAN CLAUSE, PRESIDING
************** SYLVIA R. COOKS JUDGE ***************
Court composed of Ulysses Gene Thibodeaux, Sylvia R. Cooks, and Billy H. Ezell, Judges.
AFFIRMED. Thibodeaux, J., dissents and assigns written reasons.
J. Bryan Jones, III P.O. Drawer 1550 Cameron, Louisiana 70631 (337) 775-5714 COUNSEL FOR PLAINTIFFS/APPELLANTS: Anthony Deshotel, et al
Joel E. Gooch Mr. Raymond C. Jackson, III Allen & Gooch P.O. Drawer 3768 Lafayette, Louisiana 70502 (337) 291-1210 COUNSEL FOR DEFENDANT/APPELLEE: Guichard Operating Company, Inc.
COOKS, Judge STATEMENT OF THE CASE
On February 26, 2001, Ray Deshotel was killed while engaged in the course
and scope of his employment with Guichard Operating Company, Inc. (Guichard).
Mr. Deshotel was a passenger in a vehicle owned by Guichard and driven by an
employee of Guichard. While driving in the parking lot of Guichard, the brakes on
the vehicle failed. Mr. Deshotel jumped out of the vehicle. The vehicle subsequently
ran over him and he died as a result of the injuries received in the accident. The
Plaintiffs are all major non-dependent children of Mr. Deshotel. They filed a
wrongful death claim against Guichard, Mr. Deshotel’s employer, under La.Civ. Code
art. 2315.2. Guichard filed a Motion for Summary Judgment alleging the Plaintiffs’
claim is barred by provisions La.R.S. 23:1032, La.R.S. 23:1231, and La.R.S.
23:1251of the Louisiana Workers’ Compensation Act (the Act). The trial court
granted Guichard’s Motion for Summary Judgment and dismissed the claim.
Plaintiffs contend the recent Louisiana Supreme Court case of O’Regan v. Preferred
Enterprises, Inc., 98-1602 (La. 3/17/00), 758 So.2d 124, permits a wrongful death
claim, under Louisiana Civil Code Article 2315.2, by the non-dependent children of
an employee against the employer. We disagree. For the reasons assigned below, we
affirm the judgment of the trial court.
LAW AND DISCUSSION
The Louisiana Workers’ Compensation Act provides the exclusive remedy
against an employer for injury or death of an employee. La.R.S. 23:1032 provides in
relevant part:
A. (1)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies,
2 and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
(Emphasis added.)
If an injury falls within the scope of the Act, the amount of recovery due to an
employee or “his personal representatives, dependents, or relations”, is determined
by its provisions. Atchison v. Atchison, 201 La. 1003, 10 So.2d 785 (1942). Death
benefits to “personal representatives, dependents, or relations” of an employee are
governed by La.R.S. 23:1231 of the Act which provides in relevant part:
A. For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.
Legal dependents of an employee are defined in La.R.S. 23:1251, which
provides in relevant part:
The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
(1) A surviving spouse upon a deceased spouse with whom he or she is living at the time of the accident or death.
(2) A child under the age of eighteen years (or over eighteen years of age, if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the injury of the parent, or until the age of twenty-three if enrolled and attending as a full-time student in any accredited educational institution.
(Emphasis added)
Those claimants not conclusively presumed to be dependent on the employee
must prove dependency by a preponderance of the evidence before recovery is
allowed. See, Ceco Concrete Constr., L.L.C. v. Pennington, 01-1945 (La.App. 1 Cir.
10/2/02), 836 So.2d 164.
3 The case before us highlights a potential anomaly in the law. Under the express
provisions of the Act, if an employee is killed on the job, has no surviving spouse
and no legal dependents, there is no recovery for wrongful death against his
employer.1 The early Louisiana Supreme Court case of Atchison, 10 So.2d 785, is
illustrative.
In Atchison, Henry Knight was killed while engaged in “an admittedly
hazardous occupation” in the course and scope of his employment as a result of being
burned by steam which escaped from a defective stationary engine. He had no wife
and no legal dependents. Plaintiffs, Ethel Atchison and Edman Knight, were the
surviving sister and brother of Henry Knight and brought suit, under La. Civ. Code
art. 2315, against Henry’s employer to recover for the wrongful death of their brother.
It was undisputed they were not financially dependent on Henry for support. The
district court dismissed the suit holding the Workers’ Compensation Act was the
exclusive remedy for death benefits against the employer. The appellate and supreme
court affirmed. The court cited the exclusivity provision of the Act and reasoned as
follows:
The foregoing mandate of the Legislature is explicit and affords a full answer to the proposition advanced by the Plaintiffs in this case. It is conceded by the Plaintiffs that their deceased brother was employed by the defendant in a hazardous occupation and that he met his death as a direct result of an accident which occurred while he was engaged in the course and scope of his employment. Therefore, it follows that, as to the employee, the provisions of the compensation law were applicable since, in the absence of a special agreement of employment to the contrary, it was presumed under the law that the parties to the contract of employment were to be governed by the provisions of the act. This contract of employment became binding not only upon the employer and employee but equally so upon ‘his widow, and relatives, personal representatives, heirs, and dependents * * *’ as stated in paragraph 1 of section 3 of the above-quoted statute and operated as a complete surrender by those persons of all their rights against the employer for compensation or damages other than that provided by the act. The
1 In this case, Mr. Deshotel was survived by his wife, Mary Janise Deshotel, who is currently receiving workers’ compensation benefits from Guichard Operating Company, Inc.
4 restriction of the rights and remedies to those granted under the compensation law is made absolute by the provisions of section 34 of the act with respect to the employee, his personal representatives, dependents, ‘relations, or otherwise.’
Id. at 787.
Once the injury falls within the purview of the Act, its provisions become
binding not only upon the employer and employee, but equally binding on the
employee’s “personal representatives, dependents, or relations.” See La.R.S.
23:1032(A)(1)(a). Since the Plaintiffs in Atchison could not establish dependency,
there was no recovery under the Act.
We note the legislature did effect a change in the law with respect to recovery
by non-dependent parents of an employee. Prior to 1980, Miller v. Lambert, 380
So.2d 695(La.App. 4 Cir. 1980), represented the state of the law.
In Miller, an eighteen-year old maintenance worker was electrocuted when he
cut into a high voltage wire when attempting to repair an air conditioning vent. His
parents filed a wrongful death and survivorship action against their son’s employer.
The appellate court held the parents’ exclusive remedy against the employer is under
the Workers’ Compensation Act. However, the court found his parents failed to
establish actual dependency and were not entitled to death benefits under the Act as
it existed at the time. In 1980, the Louisiana legislature amended the Workers’
Compensation Act to specifically provide for the recovery by non-dependant parents
of an employee. La.R.S. 23:1231(B)(2) now provides in relevant part:
[I]f the employee leaves no legal dependents entitled to benefits under any state or federal compensation system, the sum of seventy-five thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.
The rationale for this change was articulated by the Louisiana Supreme Court
in Sherman v. Cabildo Constr. Co., 490 So.2d 1386 (La. 1986), as follows:
5 Because compensation is an exclusive benefit which bars recovery in tort, Act 509 of 1980 was enacted to give a lump sum benefit to surviving nondependent parents. The legislation resulted from the inequity of denying death benefits for a worker without dependents, despite his or her parents’ substantial economic investment in upbringing and education and the windfall to the employer and/or insurer.
Id. at 1388.
We recognize the same windfall exists to the employer and/or insurer for the
death of an older widowed employee with grown non-dependent children. The
Plaintiffs contend O’Regan v. Preferred Enterprises, Inc., 98-1602(La. 3/17/00), 758
So.2d 124, changed the law and now permits a cause of action in tort against the
employer when the Act provides no compensation for a class of litigants. We
disagree. O’Regan permits an employee to pursue a tort action against the employer
only when the injury suffered is not within the scope of the Act. O’Regan recognized
a “conceptual distinction” between “injuries which do not come within the Act’s
coverage provisions and injuries which are covered, but for which no compensation
is payable.” Id. at 137. When the injury or death is within the course of employment,
the provisions of the Act preempt an employee’s common law rights. Id. at 137.
The facts in O’Regan are as follows. Michelle O’Regan was employed by
Preferred Enterprises, d/b/a Number One Cleaners from July 1990 through November
1990, less than twelve months. Her duties required her to remove spots by rubbing
methoxyethanol into the clothing with her bare hands. In 1993, after she left Preferred
Enterprises, she was treated for myelodysplasia, a form of aplastic anemia, which
causes the bone marrow to produce abnormal cells. The disease is caused by exposure
to toxic chemicals and may take several years to manifest itself. She filed a workers’
compensation claim against Preferred Enterprises’ contending her exposure to
methoxyethanol caused her anemia. The hearing officer denied Ms. O’Regan’s claim
finding she did not meet the heightened burden of proof (overwhelming
6 preponderance of the evidence) under the Act and therefore failed to overcome the
statutory presumption that her disease was non-occupational because she was
employed by Preferred Enterprises’ for less than twelve months. Ms. O’Regan then
filed a tort action against her employer. The district and appellate court denied
Preferred Enterprises motion to dismiss the plaintiff’s case. The Louisiana Supreme
Court affirmed. The court found since Ms. O’Regan was employed for less than
twelve months and her illness was presumed to be outside the scope of the Act, she
was permitted to pursue a claim in tort against her employer.
Plaintiffs also rely on Walls v. American Optical Corp, 98-0455 (La. 9/8/99),
740 So.2d 1262 (La.1999). In Walls, George Walls was employed as a sandblaster for
Land & Marine and Coastal from 1964 to 1970 where he was exposed to silica dust.
Mr. Walls contracted silicosis and died on March 17, 1995. His survivors filed a
survival and wrongful death suit against the executive officers of his employer. The
executive officers of Land & Marine filed a motion for summary judgment asserting
the Plaintiffs exclusive remedy for wrongful death was under the Workers’
Compensation Act. Prior to the 1976 amendment to the Workers’ Compensation Act,
the survivors of an injured worker could bring a survival action and a wrongful death
action against the executive officers of a company. The amendment provided
compensation under the Act was the exclusive remedy not only against the employer
but also against any “principal, officer, director, stockholder, partner or employee of
the employer or principal.” La.R.S. 23:1032(A)(1)(a). The purpose of the 1976
amendment was to broaden the class of defendants who were immune from tort suits.
The Supreme Court held since the Plaintiffs wrongful death action arose upon the
death of the employee, after the effective date of the amendment, Plaintiffs wrongful
death action was barred. We fail to see how Walls supports the position of the
Plaintiffs.
7 Plaintiffs contend their wrongful death claim is an independent cause of action
and not a derivative one, i.e., a survival action. Plaintiffs rely on Theriot v. Damson
Drilling Corp., 471 So.2d 757(La.App. 3 Cir.) writ denied, 472 So.2d 907 (La.1985)
to support their position. In Theriot, the wife and children of an injured employee
brought an action in tort for loss of consortium against the employer. The Plaintiffs
argued that their tort claim for loss of consortium was an independent cause of action,
not the injured employee’s claim, and, therefore, not barred by the provisions of the
Workers’ Compensation Act. This court held the injury fell within the scope of the
Act and, therefore, Plaintiffs claim was barred. This court stated:
Concededly, if Mr. Theriot had died as a result of his injuries, the Plaintiffs could not have recovered under Article 2315 for his wrongful death or the survivorship action provided by that article. They would have been relegated to such rights as they may have under the Worker’s Compensation law. See Malone and Johnson, Louisiana Civil Law Treatise, Worker’s Compensation, Section 366 (Vol. 14). On its face, therefore, the legislature did not intend to grant an action for loss of consortium, service and society because of injuries to an employee covered by worker’s compensation. The act explicitly states that such damages “shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.”
Id. at p. 758. (emphasis in original).
In this case, Plaintiffs seek to distinguish their wrongful death claim from the
loss of consortium claim in Theriot. We cannot make that distinction. Plaintiffs
wrongful death claim is based on an “accident arising out of and in the course of” Mr.
Deshotel’s employment with Guichard which brings it squarely within the scope of
the Workers’ Compensation Act. La.R.S. 23:1031(A). The Act provides the exclusive
remedy against the employer for any claims for damages. La.R.S. 23:1032. While
we recognize the inequity Plaintiffs complain of may result in the potential windfall
to the employer or insurer, change in this area must come from the legislature not the
judiciary. Therefore, we affirm the decision of the trial court dismissing Plaintiffs’
8 claim.
DECREE
Based on the foregoing review of the evidence, the decision of the trial court
granting Guichard’s Motion for Summary Judgment is affirmed. All costs of this
appeal are assessed to Plaintiffs.
AFFIRMED.
9 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
ANTHONY DESHOTEL, ET AL.
THIBODEAUX, J., dissenting.
A basic tenet of statutory interpretation is that laws should be applied as
written. Further,
The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it. The statute must therefore be applied [and] interpreted in a manner which is consistent with logic and the presumed fair purpose and intention of the legislature in passing it.
City of Pineville v. American Federation of State, County, and Municipal Employees,
AFL-CIO, Local 3352, 00-1983 (La. 6/29/01), 791 So.2d 609, 612 (citations omitted).
The structure of the workers’ compensation laws was designed as a trade-
off to the employer and employee. Under this quid pro quo arrangement, the
employer was afforded the advantage of reduced benefits to the employee and
immunity from tort. The employee was relieved of the obligation of proving delictual
fault. In this case, the major non-dependent children of the decedent do not have the
benefit of this compromise. They are not receiving anything in return for reduced
benefits or the freedom from proving negligence or fault. Indeed, they are getting nothing in return. The intent of the legislature is being subverted by the majority’s
refusal to allow a tort-based cause of action against the decedent’s employer.
Louisiana Revised Statutes 23:1032(A)(1)(a) specifically provides for
“the rights and remedies herein granted to an employee or his dependent on account
of an injury, or compensable sickness or disease for which he is entitled to
compensation under this statute, shall be exclusive of all other rights, remedies, and
claims for damages . . . .” The plaintiffs in this case are neither employees nor
dependents. Additionally, La.R.S. 23:1231 specifically refers to the “legal dependent”
of an employee. The Workers’ Compensation Act does not address major, non-
dependent children of a decedent. The Act, therefore, does not apply. The Act does
not mention nor does it exclude “non-dependent” major children who have claims for
wrongful death and survival damages. Certainly, if this class of major, non-dependent
children was excluded under the Act, then their injuries are subject to the exclusivity
provisions of the Act itself. That is not the case here. See, e.g., Hunt v. Milton J.
Womack, Inc., 616 So.2d 759 (La.App. 1 Cir.), writ denied, 623 So.2d 1309
(La.1993).
Judicial decisions are not intended to be an authoritative source of law
in Louisiana; they are secondary to legislation. See A.N. YIANNOPOULOS, LOUISIANA
CIVIL LAW SYSTEM, § 35, p. 53 (1977). Since the Workers’ Compensation Act does
not foreclose a remedy to major, non-dependent children, we must look elsewhere for
an authoritative source permitting such a remedy. Those authoritative sources are
La.Civ.Code arts. 2315 and 2316. The Louisiana Supreme Court has eloquently
stated:
Under these articles the courts of this state have been given a broad, general principle of legislative will under which we are required to determine when the interest of society is best served by allowing the act of man which causes harm to be accepted as a proper standard of conduct
2 or when society is best served by requiring one who harms another to respond in damages for the injury caused. See Malone, Nuisance and Fault, 8 La.L.Rev. 248. Our common law neighbors are required, conversely, to begin with the jurisprudence arising out of specific circumstances and to draw from this jurisprudence a general principle to govern future determinations. It has been said: “ * * * The merit of the civilian general principle lies in the fact that the principle is wider than the cases decided and that hence it has within itself the potentiality of growth.” Stone, Tort Doctrine in Louisiana, 17 Tul.L.Rev. 159, 166.
Langlois v. Allied Chemical Corporation, 249 So.2d 133, 137 (La.1971).
In affirming the trial court and denying a remedy to major, non-
dependent children, the majority has unnecessarily foreclosed a legitimate remedy.
Indeed, its observation that “change in this area must come from the legislature, not
the judiciary” is ironic. It implies that we cannot usurp a legislative function by
grafting a judicial remedy for this particular class of denied individuals. However, the
legislature has not excluded this class. To the contrary, the majority has judicially
excluded the class where the legislature has chosen not to act. The majority should
heed the dictate of Article 1, § 22 of our Constitution which provides that “every
person shall have an adequate remedy by due process of law and justice.” We should
heed the sage advice of Marbury v. Madison, 5 U.S. 137, 147 (1803) that “[i]t is a
settled and invariable principle, that every right, when withheld, must have a remedy,
and every injury is proper redress,” and that “[t]he very essence of civil liberty
certainly consists in the right of every individual to claim the protection of the laws,
whenever he receives an injury. One of the first duties of government is to afford that
protection.” Id. at 163. Finally, “[t]he government of the United States has been
emphatically termed a government of laws, and not of men. It will certainly cease to
deserve this high appellation, if the laws furnish no remedy for the violation of a
vested legal right.” Id. Our Civil Code has furnished a remedy in this case and the
Workers’ Compensation Act has not limited that remedy for this vested legal right.
3 We should heed the lessons of our Civil Code, our Constitution, and Marbury v.
Madison and allow a remedy in tort for major, non-dependent children of a decedent
who died in the course and scope of his employment.
For the foregoing reasons, I respectfully dissent.