Howard v. a & M CONST. CO.

637 So. 2d 575, 93 La.App. 1 Cir. 1013, 1994 La. App. LEXIS 1828, 1994 WL 195652
CourtLouisiana Court of Appeal
DecidedApril 29, 1994
Docket93 CA 1013
StatusPublished
Cited by10 cases

This text of 637 So. 2d 575 (Howard v. a & M CONST. CO.) 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
Howard v. a & M CONST. CO., 637 So. 2d 575, 93 La.App. 1 Cir. 1013, 1994 La. App. LEXIS 1828, 1994 WL 195652 (La. Ct. App. 1994).

Opinion

637 So.2d 575 (1994)

Freddie L. HOWARD
v.
A & M CONSTRUCTION COMPANY.

No. 93 CA 1013.

Court of Appeal of Louisiana, First Circuit.

April 29, 1994.

*576 John B. Perry, New Orleans, for plaintiff-appellee Freddie L. Howard.

Pierre M. Legrand, Mandeville, for defendant-appellee A & M Const. Co.

Thomas E. Stirewalt, Jr., Metairie, for defendant-appellant Home Ins. Co.

Before CARTER, GONZALES and WHIPPLE, JJ.

CARTER, Judge.

This is an appeal in a worker's compensation case.

FACTS

On June 10, 1991, during the course and scope of his employment as a truck driver for A & M Construction Company (A & M), sixty-year-old Freddie L. Howard was injured when a trailer ramp fell on him, causing serious injuries. Home Insurance Company (Home), who was A & M's worker's compensation insurer, paid Howard weekly compensation benefits through December 6, 1991.

On December 16, 1991, Howard filed a claim for worker's compensation benefits with the Office of Worker's Compensation (OWC). On January 16, 1992, the OWC issued citations, accompanied by copies of the claim form/petition, to both A & M and Home. Service was effected on A & M and *577 Home on January 22, 1992. On February 6, 1992, A & M filed an answer to Howard's petition and a third party demand against Home. In its third party demand, A & M requested indemnification from Home for any and all amounts for which A & M was cast in judgment to Howard, including benefits, penalties, attorney's fees, and reimbursement for any benefits A & M paid to Howard due to Home's termination of his benefits. On March 2, 1992, Home answered Howard's petition.[1]

On May 1, 1992, A & M filed a supplemental and amending third party demand, alleging that Home failed in its obligation to provide a defense to A & M in the worker's compensation proceeding and, therefore, was liable for all attorney's fees incurred by A & M in the defense of this proceeding. On May 28, 1992, A & M filed a motion for preliminary default against Home for its failure to answer the third party demand. On June 19, 1992, the hearing officer ordered that a preliminary default be entered against Home and set the confirmation hearing for June 24, 1992.[2]

On June 24, 1992, trial on the principal demand and confirmation of the default judgment on the third party demand was held. Howard and A & M stipulated that, on June 10, 1991, Howard had an accident during the course and scope of his employment with A & M and that the accident was not the result of intentional acts by A & M. The parties further stipulated that Howard was entitled to weekly compensation benefits in the amount of $165.85. The parties also stipulated that Howard received the benefits from Home through December 6, 1991, but that, thereafter, Howard was not paid compensation benefits for a period of seven weeks. On January 24, 1992, A & M began paying Howard weekly benefits. Finally, the parties stipulated that Howard's past medical expenses were related to the accident, and the hearing officer determined that these medical expenses were reasonable and necessary medical fees covered under the Worker's Compensation Act. At the conclusion of the trial, the hearing officer took the matter under advisement.

The hearing officer determined that Howard was permanently and totally disabled. On July 6, 1992, the hearing officer rendered judgment in favor of Howard and against A & M and Home in solido for weekly compensation benefits, seven weeks of past due benefits, past medical expenses, expert witness fees, and future medical expenses for treatment of his back and leg. The hearing officer determined that Home was arbitrary and capricious in failing to pay Howard benefits and rendered judgment in favor of Howard against Home for statutory penalties and attorney's fees in the amount of $10,000.00. The hearing officer further determined that A & M had a valid worker's compensation policy with Home and that Home failed in its obligation to A & M. Accordingly, the hearing officer rendered judgment in favor of A & M against Home for indemnification for compensation benefits which A & M had paid to Howard, Howard's future compensation benefits, his past and future medical expenses, $10,000.00 for A & M's attorney's fees and costs, and A & M's future attorney's fees. The judgment and reasons for judgment both contain a hand written notation, indicating that copies of the judgment and reasons were sent to John Perry (attorney for Howard), Pierre Legrand (attorney for A & M), and Franklin Polk.[3]

From this adverse judgment, Home appealed, assigning the following specifications of error:

1. The hearing officer failed to give Home proper notice of any of the important pre-trial events.
2. The hearing officer failed to give Home proper notice of the trial.
3. The hearing officer erroneously granted judgment in favor of A & M against Home.
*578 4. The hearing officer erroneously granted judgment in favor of Howard against Home.

Both Howard and A & M answered the appeal, requesting additional attorney's fees.

PRINCIPAL DEMAND

Home contends that the hearing officer erred in rendering judgment in favor of Howard and against Home because Home did not receive notice of the pre-trial proceedings or of the trial date.

LSA-R.S. 23:1317A provides, in pertinent part, as follows:

If an answer has been filed within the delays allowed by law or granted by the hearing officer, or if no judgment has been entered as provided in R.S. 23:1316 at the time for hearing or any adjournment thereof, the hearing officer shall hear the evidence that may be presented by each party. Each party shall have the right to be present at any hearing or to appear through an attorney. The hearing officer shall not be bound by technical rules of evidence or procedure other than as herein provided....

Although LSA-R.S. 23:1317A provides that the hearing officer is not bound by technical procedural rules, the fundamental principles of procedure, such as reasonable notice, are applicable to a worker's compensation proceeding. See Jack v. International Paper Co., 56 So.2d 875, 878 (La.App. 2nd Cir.1952). When a defendant files an answer, he is entitled to notice of trial on the merits. Louisiana Hoop Company, Inc. v. Hood, 292 So.2d 808, 810 (La.App. 1st Cir. 1974). Adequate notice is one of the most elementary requirements of procedural due process. Hicks v. Schouest, 381 So.2d 977, 978 (La.App. 4th Cir.1980). It is fundamental to our system of laws that there be notice prior to trial, except in extraordinary cases, such as executory process. Cook v. Matherne, 432 So.2d 1039, 1041-42 (La.App. 1st Cir.1983).

In the instant case, the record reveals that, on March 2, 1992, Attorney Jack E. Koch filed an answer to Howard's petition on behalf of Home. Koch's address and telephone number appear at the bottom of the pleading. On April 1, 1992, the OWC forwarded a "Pre-Trial Procedure Order" to counsel for Howard and A & M. On May 4, 1992, the OWC sent a "Notice of Trial" to counsel for Howard and A & M. However, the OWC failed to notify Home or Koch of the pre-trial matters or of the trial date. Consequently, Home was not represented at the trial on July 24, 1992.

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Cite This Page — Counsel Stack

Bluebook (online)
637 So. 2d 575, 93 La.App. 1 Cir. 1013, 1994 La. App. LEXIS 1828, 1994 WL 195652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-a-m-const-co-lactapp-1994.