STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-180 consolidated with 15-181
ESTATE OF SHELLIE BELAIRE (JUDGE J. AYO ON BEHALF OF MINOR SON G.M.A.)
VERSUS
CRAWFISH TOWN USA, ET AL.
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - # 9 PARISH OF ST. MARTIN, NO. 14-02955 C/W 14-02958 ELIZABETH CLAIRE LANIER, WORKERS’ COMPENSATION JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.
AMY, J., dissents and assigns reasons.
PICKETT, J., dissents for the reasons assigned by Judge Amy.
REVERSED AND REMANDED.
Jeffery F. Speer Doucet & Speer P. O. Drawer 4303 Lafayette, LA 70502-4303 Telephone: (337) 232-0405 COUNSEL FOR: Plaintiff/Appellant - Estate of Shellie Belaire (Judge J. Ayo o/b/o G.M.A.) Eric J. Waltner Allen & Gooch, A Law Corporation P. O. Box 81129 Lafayette, LA 70598-1129 Telephone: (337) 291-1400 COUNSEL FOR: Defendants/Appellees - LUBA Workers’ Compensation and Crawfish Town USA THIBODEAUX, Chief Judge.
In this workers’ compensation case, Plaintiffs, the dependent children
of a deceased employee, appeal the grant of a motion for summary judgment filed
by the employer, Crawfish Town USA, Inc., and its insurer, LUBA Workers’
Compensation. Plaintiffs filed a claim against these Defendants for death benefits
alleging the employee’s death was caused by an overdose of medication prescribed
as a result of a work accident. Defendants filed a motion for summary judgment,
contending that the claim was filed after the prescriptive period of one year from
the employee’s death and that Plaintiffs would not be able to establish causation at
trial. In turn, Plaintiffs argued that the prescriptive period should have commenced
on the date they discovered they had a cause of action and that they established
causation with the coroner’s testimony and documents from his investigation.
Because we find Plaintiffs’ claim timely, pursuant to the doctrine of contra non
valentem, and because we find that a genuine issue of material fact exists as to
causation, we reverse.
I.
ISSUES
We must determine:
(1) whether the trial court erred in granting Defendants’ Motion for Summary Judgment on the ground of prescription; and
(2) whether the trial court erred in granting Defendants’ Motion for Summary Judgment on the ground of Plaintiffs’ inability to establish causation at trial. II.
FACTS AND PROCEDURAL HISTORY
In November 2010, Shellie Belaire, an employee of Crawfish Town
USA, Inc. (“Crawfish Town”), allegedly sustained injury in an accident while in
the course and scope of employment. Crawfish Town denies that Ms. Belaire
sustained a work-related injury. It concedes, however, that Ms. Belaire was paid
indemnity benefits. Following the accident, Ms. Belaire was prescribed
medication for chronic pain resulting from the work injury.
On April 12, 2013, Ms. Belaire died. Ms. Belaire’s family believed
her death to be of natural causes. On May 20, 2013, Ms. Belaire’s death certificate
was issued. The certificate listed Ms. Belaire’s cause of death as an accidental
overdose of prescription medication. A formal demand on behalf of Ms. Belaire’s
two surviving sons was then made upon Defendants, Crawfish Town and LUBA
Workers’ Compensation, for conversion of Ms. Belaire’s previously paid
indemnity benefits to death benefits and burial expenses. Defendants requested the
birth certificates of Ms. Belaire’s two sons. The certificates were tendered by
Plaintiffs, the estate of Ms. Belaire through Judge J. Ayo and through Larry Joseph
Wiltz, Jr., the respective fathers on behalf of each of Ms. Belaire’s sons.
Subsequently, no death benefits or burial expenses were paid.
On May 7, 2014, Plaintiffs filed a Disputed Claim for Compensation
on behalf of each son seeking death benefits, funeral expenses, outstanding
medical expenses, penalties, and attorney fees on the basis of Ms. Belaire’s alleged
overdose of medication prescribed to treat her work injury. Upon receipt of these
claims, the trial court assigned each son a separate docket number, and the claims
were consolidated into one case. Defendants answered and filed a motion for
2 summary judgment on grounds of prescription and Plaintiffs’ alleged inability to
establish causation between Ms. Belaire’s death and her alleged work accident at
trial. In opposition, Plaintiffs contended that their claim had not prescribed
because they filed the claim within a year of the date Ms. Belaire’s actual cause of
death was known and, therefore, within a year of the date they learned of a cause
of action against Defendants. Plaintiffs also claimed that prescription was
interrupted by Defendants’ acknowledgment of liability for death benefits.
Further, Plaintiffs contended that causation was established by the deposition of
the coroner who completed Ms. Belaire’s death certificate, Dr. Warren Degatur,
and information collected in his investigation of Ms. Belaire’s death.
The trial court granted Defendants’ Motion for Summary Judgment.
The trial court found that Plaintiffs’ claim had prescribed and that Plaintiffs could
not be able to meet their burden of proof at trial as to causation between Ms.
Belaire’s death and treatment for her workers’ compensation accident. Plaintiffs
appealed.
III.
STANDARD OF REVIEW
“Appellate courts review summary judgments de novo, using the same
criteria that govern the district court’s consideration of whether summary judgment
is appropriate.” Hogg v. Chevron USA, Inc., 09-2632, p. 5 (La. 7/6/10), 45 So.3d
991, 996. The considerations for whether summary judgment is appropriate are set
forth in La.Code Civ.P. art. 966 which states, in part:
B. (2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for
3 summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
....
C. (2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
The issue of prescription when raised by motion for summary judgment is subject
to the same de novo review. Hogg, 45 So.3d 991. In our review, we will consider
“the record and all reasonable inferences that may be drawn from it in the light
most favorable to the non-movant.” Hines v. Garrett, 04-806, p. 1 (La. 6/25/04),
876 So.2d 764, 765.
IV.
LAW AND DISCUSSION
Prescription
Plaintiffs contend the trial court erred in granting Defendants’ Motion
for Summary Judgment because prescription was interrupted by Defendants’
alleged acknowledgement of liability. Alternatively, Plaintiffs contend the
prescriptive period commenced when they discovered they had a cause of action.
We agree in part. Applying the doctrine of contra non valentem, we find the
4 prescriptive period commenced when Plaintiffs’ cause of action was reasonably
discoverable and that Plaintiffs’ claim filed within a year of that date was timely.
The applicable prescriptive period for work-related death benefits is
set forth in La.R.S. 23:1209(A) which states, in part:
A. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
Pursuant to La.R.S. 23:1209(A), a claim for death benefits is prescribed unless
“agreement is reached between the parties on death benefits within at least a year
of the employee’s death” or “a claim for death benefits [is] filed within one year of
the employee’s death.” Jonise v. Bologna Bros., 01-3230, p. 5 (La. 6/21/02), 820
So.2d 460, 464.
If a claim for death benefits has prescribed on its face, the burden is
on the plaintiff to show that the prescriptive period has been suspended or
interrupted. Id. One means by which prescription is interrupted is
acknowledgment under La.Civ.Code art. 3464. Pursuant to this article
“[p]rescription is interrupted when one acknowledges the right of the person
against whom he had commenced to prescribe.” Id. An acknowledgement
“involves an admission of liability, either through explicit recognition of a debt
owed, or through actions of the debtor that constitute a tacit acknowledgement.”
Gary v. Camden Fire Ins. Co., 96-55, pp. 4-5 (La. 7/2/96), 676 So.2d 553, 556. “A
tacit acknowledgement arises from a debtor’s acts of reparation or indemnity,
unconditional offers or payments, or actions which lead the creditor to believe that
the debtor will not contest liability.” Id.
5 Alternatively, prescription may be suspended pursuant to the common
law doctrine of contra non valentem, which halts prescription from running against
a person who is unable to bring suit. Causby v. Perque Floor Covering, 97-1235
(La. 1/21/98), 707 So.2d 23. The Louisiana Supreme Court has recognized four
grounds for the application of contra non valentem:
(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action;
(2) where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and
4) where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.
Id. at 25.
The fourth ground of contra non valentem is commonly known as the
discovery rule. Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So.2d 206. This
rule “provides that prescription commences on the date the injured party discovers
or should have discovered the facts upon which his cause of action is based.” Id. at
211. Stated another way, pursuant to this doctrine prescription will not begin to
run against a plaintiff until he has “a reasonable basis to pursue a claim” against a
defendant. Jordan v. Employee Transfer Corp., 509 So.2d 420, 424 (La.1987). A
plaintiff’s ignorance of the facts giving rise to his cause of action, however, must
not be “willful, negligent or unreasonable.” Wimberly, 635 So.2d at 212. Further,
the discovery rule standard is stringent and should only be applied in exceptional
circumstances. Eastin v. Entergy Corp., 03-1030 (La. 2/6/04), 865 So.2d 49.
6 Where a plaintiff has been “effectually prevented from enforcing his rights for
reasons external to his own will,” however, “principles of equity and justice”
demand that prescription be suspended. Wimberly, 635 So.2d at 211.
Here, the claim for death benefits has prescribed on its face. Plaintiffs
filed their claim on May 7, 2014, more than the prescriptive period of one year
from Ms. Belaire’s death on April 12, 2013. Further, the record does not show that
the parties reached an agreement as to the payment of death benefits. The burden
then shifted to Plaintiffs, who contended that prescription was interrupted by
Defendants’ alleged acknowledgment pursuant to La.Civ.Code art. 3464.
Alternatively, the prescriptive period commenced on May 20, 2013, when
Plaintiffs discovered they had a cause of action.
Addressing the acknowledgement issue first, we find Plaintiffs’
argument without merit. Plaintiffs allege that Defendants’ failure to deny a death
benefits claim, Defendants’ failure to file a WC-1003 “Stop Payment of Benefits”
form, and Defendants’ request for birth certificates amount to an acknowledgment
of liability. However, the absence of an outright denial of a possible death benefit
claim is not an overt admission of liability nor is it an act of reparation or
indemnity, an unconditional offer or payment, or an “[action] which [would] lead
the creditor to believe that the debtor will not contest liability.” Gary, 676 So.2d at
556.
Further, the failure to file a WC-1003 “Stop Payment of Benefits”
form is not an admission of liability. Pursuant to La.R.S. 23:1204, “[n]either the
furnishing of medical services nor payments by the employer or his insurance
carrier shall constitute an admission of liability for compensation under this
Chapter.” Under this statute, an employer’s payment of workers’ compensation
7 benefits is not an admission of liability and, by extension, neither is an employer’s
decision to file or not file paperwork indicating such payment. While an
employer’s payment of benefits will interrupt prescription pursuant to the statutory
command of La.R.S. 23:1209(A), Defendants here ceased paying benefits upon
learning of Ms. Belaire’s death.
Additionally, Plaintiffs contend that Defendants’ request for birth
certificates constituted an acknowledgment of liability. Other than Defendants’
admission in their Answer that they did request birth certificates, there is no
correspondence in the record from Defendants on the matter to suggest that the
request for information presented an unconditional offer of payment, included
language acknowledging liability for death benefits, or included language which
would lead a party to believe that liability would not be contested. Thus, Plaintiffs
have failed to establish that Defendants made an acknowledgment to interrupt
prescription under La.Civ.Code art. 3464.
Alternatively, Plaintiffs contend that the prescriptive period
commenced on May 20, 2013. On this date, Ms. Belaire’s death certificate was
issued listing the immediate cause of death as an overdose of prescription
medication. Plaintiffs contend that prescription commenced on this date because it
is the date they discovered their cause of action, employing a legal theory
tantamount to a discovery rule argument.
Applying the discovery rule, we find prescription commenced on May
20, 2013. The discovery rule is applicable to suspend prescription “where some
cause of action is not known or reasonably knowable by the plaintiff, even though
his ignorance is not induced by the defendant.” Causby, 707 So.2d at 25. Here,
Plaintiffs stated they believed Ms. Belaire to have died of natural causes. Further,
8 there is nothing in the record to suggest that there was information prior to the
issuance of the death certificate to alert Plaintiffs to a possible connection between
Ms. Belaire’s death in her home and a work accident occurring several years prior
to her death. Plaintiffs’ cause of action, then, was not “known or reasonably
knowable” until the death certificate was issued, and they learned that Ms.
Belaire’s death may have resulted from treatment prescribed for her work accident.
Defendants cite Jonise v. Bologna Bros., 00-485 (La.App. 1 Cir.
9/28/01), 809 So.2d 352, for the proposition that the prescriptive period for death
benefits commences on the date of death. In Jonise, the first circuit held that the
prescriptive period for death benefits did not commence on a date other than the
employee’s death where the plaintiff failed to show the employer lulled her into a
false sense of security and failed to show an employer’s knowledge of an
employee’s injury as having an effect on prescription. Id. Jonise is
distinguishable, however, as the court did not apply the discovery rule in ruling out
an alternate date for the commencement of prescription. Id.
This court’s decision in David v. Velsicol Chem. Corp., 09-1237
(La.App. 3 Cir. 10/27/10), 49 So.3d 997, writ denied, 10-2636 (La. 3/9/12), 83
So.3d 1052, is more pertinent. In David, plaintiffs filed suit against the
manufacturer of a cattle dip alleging its product contaminated their property with
arsenic. Id. Applying discovery rule principles, this court found that the plaintiffs
could not have had a reasonable basis to pursue a claim against the manufacturer,
and therefore prescription could not have commenced, before the plaintiffs learned
that the cattle dip could have been the cause of their arsenic contamination. Id. In
light of the foregoing legal principles and in the interest of equity and justice, we
find that prescription could not have begun to commence against Plaintiffs before
9 they learned that treatment prescribed for Ms. Belaire’s work injury could have
been the cause of her death, giving rise to their cause of action. As such, we find
that the prescriptive period commenced on May 20, 2013, and that Plaintiffs’ claim
filed within one year of this date was timely.
Causation
Plaintiffs contend the trial court erred in granting Defendants’ Motion
for Summary Judgment on grounds of causation because they presented sufficient
evidence to show a factual issue existed as to the cause of Ms. Belaire’s death. We
agree. The evidence gathered in the coroner’s investigation is sufficient to create a
genuine issue of material fact as to whether a causal connection exists between Ms.
Belaire’s death and treatment for her work injury.
To establish a claim for death benefits a plaintiff must prove, by a
preponderance of the evidence, that a causal relationship exists between the work
accident and death. McKelvey v. City of Dequincy, 07-604 (La.App. 3 Cir.
11/14/07), 970 So.2d 682. Further, a plaintiff is not required to establish the exact
cause of death. Id. In McKelvey, this court found that a plaintiff had established a
causal connection between a work accident and an employee’s death in evidencing
that, more likely than not, the employee died of a probable mixed drug intoxication
of medications prescribed for a work injury. Id. At trial, the plaintiff introduced a
toxicology report and pharmacy records which showed the employee had high
amounts of several medications prescribed for his work injury in his system at the
time of death and that the employee had continuously used these medications the
year leading up to death. Id. The toxicology report also indicated that the
employee did not have alcohol or controlled substances in his system at the time of
10 death. Id. Further, while not proof of causation in itself, the employee’s death
certificate was also introduced which stated that the cause of death was a “probable
mixed drug intoxication.” Id. at 687. The court found that the evidence taken
collectively indicated that there was a reasonable probability that the employee’s
work injury and death were causally related. Id.
In light of McKelvey, we find that Plaintiffs set forth sufficient
evidence to create a genuine issue of material fact as to a causal relationship
between Ms. Belaire’s death and her work accident. As in McKelvey, Plaintiffs
offered pharmacy records which show continuous use of prescription medication
for approximately a year leading up to Ms. Belaire’s death. Plaintiffs also offered
a toxicology report which showed that Ms. Belaire’s fluids at the time of death
were negative for alcohol and narcotics and positive for several drugs she had been
prescribed for her injury. Further, the toxicology report indicated that for three of
these drugs, the amounts found in her system at the time of death exceeded the
therapeutic range. Further, the coroner remarked that the medication levels in Ms.
Belaire’s vitreous fluids were “substantially high” and that this indicated the levels
in Ms. Belaire’s blood would be higher. He added that while he did not currently
have the information, that there was likely a way to extrapolate how much
prescription medication was in Ms. Belaire’s blood at the time of death from the
information on her vitreous fluids.
Defendants contend that there is no evidence of causation because the
coroner testified in his deposition that he could not rule out other causes of death
and could not opine that, more probably than not, prescription medications caused
Ms. Belaire’s death. However, the coroner also expressed in his deposition that it
was his feeling that Ms. Belaire had “over-taken two different opioids and that was
11 the cause of her death.” He affirmed that he based this decision on the itemization
of medications and pills missing from each bottle, Ms. Belaire’s fluid samples, a
review of her prescription records, the scene of Ms. Belaire’s death, and
discussions with Ms. Belaire’s doctor and family members. The coroner’s
deposition, then, is not conclusive on this issue.
A genuine issue of material fact under La.Code Civ.P. art. 966 is “one
as to which reasonable persons could disagree.” Hogg, 45 So.3d at 997. In light of
the coroner’s testimony, the toxicology report revealing high and potentially fatal
amounts of prescription medication in Ms. Belaire’s system, and this court’s
decision in McKelvey, we find reasonable minds could disagree as to whether a
causal connection could be established between Ms. Belaire’s death and
medication taken to treat her work injury. As a genuine issue of material fact
exists on the issue of causation, a trial on the merits is the proper proceeding to
resolve this matter. Accordingly, we reverse the trial court’s grant of Defendants’
Motion for Summary Judgment on the issue of causation and remand for further
proceedings.
V.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the trial court
and remand the matter for a trial on the merits. Costs of this appeal are assessed
against Defendants, Crawfish Town USA, Inc. and LUBA Workers’
Compensation.
12 NUMBER 15-180 Consolidated With NUMBER 15-181
COURT OF APPEAL, THIRD CIRCUIT STATE OF LOUISIANA
ESTATE OF SHELLIE BELAIRE (JUDGE J. AYO ON BEHALF OF MINOR SON G.M.A.)
VERSUS CRAWFISH TOWN USA, ET AL.
AMY, J., dissenting.
I respectfully dissent from the majority opinion as I find that an affirmation
is required. As noted by the majority, plaintiffs pursuing workers’ compensation
death benefits must demonstrate, by a preponderance of the evidence, causation
between the work-related accident and the death. See McKelvey v. City of
Dequincy, 07-604 (La.App. 3 Cir. 11/14/07), 970 So.2d 682. In my opinion, the
slim record before this court indicates that the workers’ compensation judge
correctly determined that the submissions were deficient on the issue of causation.
Even upon consideration of the employer’s evidence (e.g., the coroner’s
deposition, toxicology report, and prescription logs), I do not find that genuine
issues of material fact exist as to this element. At most, the coroner generally
expressed the probability that prescription medication caused the decedent’s death.
However, there is no evidence placing the death within the context of the workers’
compensation claim or the treatment received by the claimant as a result thereof.
In short, the plaintiffs have failed to produce factual support indicating that they
“will be able to satisfy their evidentiary burden of proof at trial” on the issue of
causation. See La.Code Civ.P. art. 966(C)(2).
For these reasons, I would affirm the workers’ compensation judge’s ruling.