Faught v. RYDER/P I E NATIONWIDE, INC.

543 So. 2d 918, 1989 WL 35238
CourtLouisiana Court of Appeal
DecidedApril 11, 1989
Docket88 CA 0312
StatusPublished
Cited by19 cases

This text of 543 So. 2d 918 (Faught v. RYDER/P I E NATIONWIDE, INC.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faught v. RYDER/P I E NATIONWIDE, INC., 543 So. 2d 918, 1989 WL 35238 (La. Ct. App. 1989).

Opinion

543 So.2d 918 (1989)

Betty FAUGHT, et al.
v.
RYDER/P*I*E NATIONWIDE, INC.

No. 88 CA 0312.

Court of Appeal of Louisiana, First Circuit.

April 11, 1989.
Writ Denied May 19, 1989.

*919 Carolyn Pratt Perry, Baton Rouge, for plaintiff-appellant Jacquelyn Smith Burns.

Leonard Cardenas III, Baton Rouge, for defendant-appellee Ryder/Pie Nationwide, Inc.

Before EDWARDS, SHORTESS and SAVOIE, JJ.

SHORTESS, Judge.

Donald Wayne Burns (decedent) died from injuries sustained when the 18-wheel tractor-trailer truck he was driving in the course and scope of his employment with Ryder/P*I*E (defendant) overturned on the ramp from I-10 to I-110 North in East Baton Rouge Parish. Betty Faught, as tutrix on behalf of Donald Stacy Burns and Bennett Scott Burns, as well as Ferris Shaine Burns, individually, (decedent's children) brought suit following decedent's death[1] to recover benefits under the Louisiana Worker's Compensation Law, more specifically, under LSA-R.S. 23:1332.[2]

The trial court granted defendant a summary judgment, apparently premised on two grounds:

(1) that Donald Wayne Burns was intoxicated at the time of the accident, thereby absolving Ryder of all worker's compensation liability pursuant to LSA-R.S. 23:1081; and

(2) that plaintiffs settled a tort claim with a third person, as that term is used in LSA-R.S. 23:1101-1103, without defendant's written approval as required by LSA-R.S. 23:1102(B), thereby forfeiting, under the terms of that statute, their right to future compensation. *920 In brief oral reasons for judgment, the trial court indicated that plaintiffs' unapproved settlement was the basis for dismissal. Jacquelyn Smith Burns, decedent's surviving spouse, brought this appeal. Defendant correctly asserts that it is the judgment, not the reasons for judgment, from which an appeal is taken, and argues before this court the correctness of the judgment under both LSA-R.S. 23:1102(B) and LSA-R.S. 23:1081. The position is well taken, and each theory will be addressed in turn. See Jones v. Louisiana Timber Company, 519 So.2d 333 (La.App. 2d Cir. 1988).

INTOXICATION

Under LSA-R.S. 23:1081, employee intoxication is a defense to employer worker's compensation liability. The statute expressly places the burden of proving the defense on the employer. Moreover, proof simply of intoxication will not suffice because the employer must show that the employee's intoxication caused the accident which resulted in his (the employee's) disability. Parker v. Kroger's, Inc., 394 So.2d 1178 (La.1981). Causation under LSA-R.S. 23:1081 has been interpreted to be cause in fact, rather than "proximate" cause (as that term is used in determining delictual liability under the duty-risk analysis). Frost v. Albright, 460 So.2d 1125 (La.App. 2d Cir.1984), writ denied, 462 So.2d 1266 (La.1985). This burden of proof has been successfully carried by the use of expert medical testimony regarding the effect of specific blood-alcohol levels combined with fact testimony from eyewitnesses as to the employee's alleged behavior. See Renfroe v. City of New Orleans, 394 So.2d 787 (La.App. 4th Cir.); writ denied, 399 So.2d 621 (1981); and Parker, 394 So.2d at 1179-80. There is no such evidence in the record before us.

Defendant asserts that a deposition or portion thereof of a Dr. Girod regarding the decedent's blood-alcohol level was submitted in support of the motion. It is not in the record on appeal. Moreover, it would seem that the defense of intoxication under LSA-R.S. 23:1081, which necessarily involves a factual determination of causation is, at least under these circumstances, inappropriate for disposition by summary judgment. It should be noted that our courts have repeatedly emphasized the importance of establishing the accuracy of blood-alcohol tests in the context of criminal proceedings. State v. Rowell, 517 So. 2d 799 (La.1988). The same concerns regarding the accuracy of these tests should apply to civil proceedings, notwithstanding the fact that the presumption of intoxication in LSA-R.S. 32:662 is expressly excluded from such proceedings. LSA-R.S. 32:662(C). The concern, although necessarily heightened by regard for the protection of individual constitutional rights in a criminal setting, is fundamentally over the accuracy of these tests. See Rowell, 517 So.2d at 800-802. In deciding a motion for summary judgment, the initial inquiry is whether the pleadings, and, if any, depositions, answers to interrogatories, admissions and affidavits, resolve all material issues of fact. LSA-C.C.P. art. 969; Sanders v. Hercules Sheet Metal, 385 So.2d 772 (La. 1980). Only then does the burden shift to the opposing party to show the existence of material facts still at issue. Sanders, 385 So.2d at 775. Additionally, where there is a choice of reasonable inferences to be drawn from the facts shown by the depositions, affidavits, and exhibits, they must be viewed in the light most favorable to the opposing party. Klohn v. Louisiana Power & Light, 406 So.2d 577 (La. 1981). Clearly, the burden never shifted in this case and an issue of material fact still exists over the defendant's allegation of decedent's intoxication.

SETTLEMENT OF TORT CLAIM WITHOUT EMPLOYER APPROVAL

Act 1 of the First Extraordinary Session of 1983 drastically revised several sections of the Louisiana Worker's Compensation Law, including LSA-R.S. 23:1102. The revision has been criticized roundly by Mssrs. Malone and Johnson for inept draftmanship. See W. Malone & A. Johnson, 14 Louisiana Civil Law Treatise, Workers' Compensation Law and Practice, § 373 (2d ed. Supp.1988). Johnson *921 additionally has criticized the revision as having upset the delicate balance of the interests of employer and employee necessary for a functional and equitable worker's compensation scheme. Johnson, Bound in Shallows and Miseries: The 1983 Amendments to the Workers' Compensation Statute, 44 La.L.Rev. 669, 670 (1984).

The revision of LSA-R.S. 23:1102(B) was in response to our supreme court's decision in Crabtree v. Bethlehem Steel Corp., 284 So.2d 545 (La.1973), which distinguished an employee's tort recovery through settlement from recovery through judgment. Johnson, supra, at 697. LSA-R.S. 23:1103 grants preference for reimbursement of compensation benefits to an intervening employer in the tort suit that ends in a judgment against a third person tort-feasor. Crabtree reasoned that the justification for LSA-R.S. 23:1103 is the prevention of a double recovery on the part of the employee and, because a compromise is less than full recovery, there is no double recovery when an employee compromises his tort claim and continues to receive compensation benefits. Crabtree, 284 So.2d at 555 (on rehearing.)

Justice Tate observed in his dissent in the original opinion in Crabtree, 284 So.2d at 553, that:

[t]he primary purpose of the act is to benefit injured employees, not to reimburse employers for workmen's compensation benefits paid out of amounts received by employees, except in the limited instances provided by La.R.S. 23:1101 (a direct suit by the employer against the tortfeasor) and 23:1103 (to share in the apportionment of "damages recovered" by suit).

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Bluebook (online)
543 So. 2d 918, 1989 WL 35238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faught-v-ryderp-i-e-nationwide-inc-lactapp-1989.