STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 06-974
ROY E. EVANS, ET AL.
VERSUS
DERRICK D. SMITH, ET AL.
**********
APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. 77965, DIV. B HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux Chief Judge, John D. Saunders, and Billy Howard Ezell, Judges.
REVERSED AND REMANDED.
Ronald E. Corkern, Jr. Corkern & Crews, L.L.C. P. O. Box 1036 Natchitoches, LA 71458-1036 (318) 352-2302 Counsel for Defendants/Appellees: State Farm Mutual Auto Insurance Company Derrick D. Smith Craig Owen Marcotte Hubley, Marcotte, Rhodes & Hussey 610 Marshall Street, Suite 700 Shreveport, LA 71101 (318) 221-3221 Counsel for Defendant/Appellee: State Farm Mutual Auto Insurance Company(As UM Carrier)
James Allen Cooper, Jr. The Law Office of Jack M. Bailey, Jr. 2790 Fairfield Avenue Shreveport, LA 71104 (318) 222-5200 Counsel for Plaintiffs/Appellants: Roy E. Evans Rosie Evans EZELL, JUDGE.
Rosie and Roy Evans appeal a trial court judgment granting an exception of
prescription filed by State Farm Mutual Automobile Insurance Company (State
Farm). They argue that the filing of Mr. Evans’ federal workers’ compensation claim
interrupted prescription on their state tort claim for damages sustained when Mr.
Evans was involved in an accident.
FACTS
On January 22, 2004, Mr. Evans was driving a United States Postal Service
vehicle and delivering mail. In his petition, he claims that he was rear-ended by
Derrick Smith, and this collision caused him injuries. Mr. Evans and his wife filed
a petition for damages on April 8, 2005, against Mr. Smith and his insurer, State
Farm. The Evanses also filed suit against State Farm in its capacity as their
uninsured/underinsured motorist carrier.
State Farm, in its capacity as liability insurer of Mr. Smith, filed an exception
of prescription alleging that the Evanses’ suit was prescribed because it was filed
more than one year after the accident. The Evanses opposed the exception alleging
that Mr. Evans had filed a federal workers’ compensation clam within one year of the
accident. Mr. Evans also alleged that the claim was still pending, as he had appealed
the decision.
After a hearing, the trial court ruled that the “claim in the Office of Workers’
Compensation Programs was not an action filed in a court of competent jurisdiction
and venue, consequently, since State Farm was not served within the prescriptive
period, prescription was not interrupted.” The Evanses appeal this decision.
1 PRESCRIPTION
The Evanses argue that the filing of Mr. Evans’ federal workers’ compensation
claim against the United States Postal Service did interrupt prescription against State
Farm. They argue that the Federal Administrative Workers’ Compensation Court is
a court of competent jurisdiction.
Louisiana Civil Code Article 3462 provides that prescription is interrupted
when an action is commenced in a court of competent jurisdiction and venue.
Further, La.Civ.Code art. 1799 provides that interruption of prescription against one
solidary obligor interrupts prescription against all solidary obligors.
When the peremptory exception of prescription is filed, the burden of proof is
generally on the party pleading prescription. If, however, on the face of the pleadings
it appears that prescription has run, the burden shifts to the plaintiff to prove an
interruption or suspension of the prescriptive period. Williams v. American Family
Mut. Ins. Co., 520 So.2d 1082 (La.App. 3 Cir. 1987). When the plaintiff’s basis for
claiming an interruption of prescription is solidary liability between two or more
parties, the plaintiff bears the burden of proving that a solidary relationship exists.
Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993).
In Williams v. Sewerage & Water Board of New Orleans, 611 So.2d 1383
(La.1993), the supreme court held that the obligation of the employer and the tort
liability of the third-party tort-feasor were solidary to the extent they shared
coextensive liability to repair certain elements of the same damage. Thus, the court
held that the suit for workers’ compensation benefits interrupted prescription as to the
tort suit against the third-party tort-feasor. The supreme court also acknowledged its
earlier opinion, Narcisse v. Illinois Central Gulf Railroad Co., 427 So.2d 1192
(La.1983), which held that there can be solidary liability between a third-party tort-
2 feasor and an employer sued under the Federal Employers’ Liability Act.
We acknowledge that at the time Williams was decided state workers’
compensation claims were filed with the district court as opposed to the Office of
Workers’ Compensation, where claims are now filed. In Lucero v. Burney Gear Co.,
33,585 (La.App. 2 Cir. 6/21/00), 764 So.2d 181, the second circuit held that this
distinction made no difference and found that a claim filed with the Office of
Workers’ Compensation interrupted prescription against a third-party tort-feasor. The
first circuit also held that the filing of a claim with the Office of Workers’
Compensation had the same effect on prescription as the filing of a lawsuit. Scott v.
Sears, Roebuck and Co., 99-571 (La.App. 1 Cir. 12/22/00), 778 So.2d 50.
Louisiana Code of Civil Procedure Article 5251(4) provides that a court of
competent jurisdiction “means a court which has jurisdiction over the subject matter
of, and is the proper venue for, the action or proceeding.” Applying this definition
the second circuit held that a suit filed in federal court interrupted prescription on a
state tort action. Martin v. Franklin State Bank & Trust Co., 595 So.2d 371 (La.App.
2 Cir.), writs denied, 596 So.2d 213, 597 So.2d 1036 (La.1992).
In Maquar v. Transit Management of Southeast Louisiana, Inc., 593 So.2d 365
(La.1992), the Louisiana Supreme Court held that the Office of Workers’
Compensation was not a court, either competent or incompetent, because it did not
have binding adjudicatory powers at the time the claim was filed, in 1989. The court
held that a claim filed with the Office of Workers’ Compensation did not interrupt
prescription on a delictual action for retaliatory discharge penalties. The supreme
court then recognized this court’s decision in Totty v. Dravo Corp., 413 So.2d 684
(La.App. 3 Cir. 1982), in which we likened the Illinois Industrial Commission to a
court for the purposes of interruption of prescription. The supreme court observed
3 that the Illinois Industrial Commission had adjudicatory powers much like the Office
of Workers’ Compensation after the 1988 amendments and the 1990 constitutional
amendment.
Pursuant to 5 U.S.C.A. § 8145, the Secretary of Labor has the authority to
administer and decide all issues arising under the federal workers’ compensation
laws. See Bruni v. The United States, 964 F.2d 76 (1 Cir. 1992). Therefore, the
United States Department of Labor, Office of Workers’ Compensation had
adjudicatory authority over Mr. Evans’ federal workers’ compensation claim.
The Evanses’ petition alleges that Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 06-974
ROY E. EVANS, ET AL.
VERSUS
DERRICK D. SMITH, ET AL.
**********
APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. 77965, DIV. B HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux Chief Judge, John D. Saunders, and Billy Howard Ezell, Judges.
REVERSED AND REMANDED.
Ronald E. Corkern, Jr. Corkern & Crews, L.L.C. P. O. Box 1036 Natchitoches, LA 71458-1036 (318) 352-2302 Counsel for Defendants/Appellees: State Farm Mutual Auto Insurance Company Derrick D. Smith Craig Owen Marcotte Hubley, Marcotte, Rhodes & Hussey 610 Marshall Street, Suite 700 Shreveport, LA 71101 (318) 221-3221 Counsel for Defendant/Appellee: State Farm Mutual Auto Insurance Company(As UM Carrier)
James Allen Cooper, Jr. The Law Office of Jack M. Bailey, Jr. 2790 Fairfield Avenue Shreveport, LA 71104 (318) 222-5200 Counsel for Plaintiffs/Appellants: Roy E. Evans Rosie Evans EZELL, JUDGE.
Rosie and Roy Evans appeal a trial court judgment granting an exception of
prescription filed by State Farm Mutual Automobile Insurance Company (State
Farm). They argue that the filing of Mr. Evans’ federal workers’ compensation claim
interrupted prescription on their state tort claim for damages sustained when Mr.
Evans was involved in an accident.
FACTS
On January 22, 2004, Mr. Evans was driving a United States Postal Service
vehicle and delivering mail. In his petition, he claims that he was rear-ended by
Derrick Smith, and this collision caused him injuries. Mr. Evans and his wife filed
a petition for damages on April 8, 2005, against Mr. Smith and his insurer, State
Farm. The Evanses also filed suit against State Farm in its capacity as their
uninsured/underinsured motorist carrier.
State Farm, in its capacity as liability insurer of Mr. Smith, filed an exception
of prescription alleging that the Evanses’ suit was prescribed because it was filed
more than one year after the accident. The Evanses opposed the exception alleging
that Mr. Evans had filed a federal workers’ compensation clam within one year of the
accident. Mr. Evans also alleged that the claim was still pending, as he had appealed
the decision.
After a hearing, the trial court ruled that the “claim in the Office of Workers’
Compensation Programs was not an action filed in a court of competent jurisdiction
and venue, consequently, since State Farm was not served within the prescriptive
period, prescription was not interrupted.” The Evanses appeal this decision.
1 PRESCRIPTION
The Evanses argue that the filing of Mr. Evans’ federal workers’ compensation
claim against the United States Postal Service did interrupt prescription against State
Farm. They argue that the Federal Administrative Workers’ Compensation Court is
a court of competent jurisdiction.
Louisiana Civil Code Article 3462 provides that prescription is interrupted
when an action is commenced in a court of competent jurisdiction and venue.
Further, La.Civ.Code art. 1799 provides that interruption of prescription against one
solidary obligor interrupts prescription against all solidary obligors.
When the peremptory exception of prescription is filed, the burden of proof is
generally on the party pleading prescription. If, however, on the face of the pleadings
it appears that prescription has run, the burden shifts to the plaintiff to prove an
interruption or suspension of the prescriptive period. Williams v. American Family
Mut. Ins. Co., 520 So.2d 1082 (La.App. 3 Cir. 1987). When the plaintiff’s basis for
claiming an interruption of prescription is solidary liability between two or more
parties, the plaintiff bears the burden of proving that a solidary relationship exists.
Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993).
In Williams v. Sewerage & Water Board of New Orleans, 611 So.2d 1383
(La.1993), the supreme court held that the obligation of the employer and the tort
liability of the third-party tort-feasor were solidary to the extent they shared
coextensive liability to repair certain elements of the same damage. Thus, the court
held that the suit for workers’ compensation benefits interrupted prescription as to the
tort suit against the third-party tort-feasor. The supreme court also acknowledged its
earlier opinion, Narcisse v. Illinois Central Gulf Railroad Co., 427 So.2d 1192
(La.1983), which held that there can be solidary liability between a third-party tort-
2 feasor and an employer sued under the Federal Employers’ Liability Act.
We acknowledge that at the time Williams was decided state workers’
compensation claims were filed with the district court as opposed to the Office of
Workers’ Compensation, where claims are now filed. In Lucero v. Burney Gear Co.,
33,585 (La.App. 2 Cir. 6/21/00), 764 So.2d 181, the second circuit held that this
distinction made no difference and found that a claim filed with the Office of
Workers’ Compensation interrupted prescription against a third-party tort-feasor. The
first circuit also held that the filing of a claim with the Office of Workers’
Compensation had the same effect on prescription as the filing of a lawsuit. Scott v.
Sears, Roebuck and Co., 99-571 (La.App. 1 Cir. 12/22/00), 778 So.2d 50.
Louisiana Code of Civil Procedure Article 5251(4) provides that a court of
competent jurisdiction “means a court which has jurisdiction over the subject matter
of, and is the proper venue for, the action or proceeding.” Applying this definition
the second circuit held that a suit filed in federal court interrupted prescription on a
state tort action. Martin v. Franklin State Bank & Trust Co., 595 So.2d 371 (La.App.
2 Cir.), writs denied, 596 So.2d 213, 597 So.2d 1036 (La.1992).
In Maquar v. Transit Management of Southeast Louisiana, Inc., 593 So.2d 365
(La.1992), the Louisiana Supreme Court held that the Office of Workers’
Compensation was not a court, either competent or incompetent, because it did not
have binding adjudicatory powers at the time the claim was filed, in 1989. The court
held that a claim filed with the Office of Workers’ Compensation did not interrupt
prescription on a delictual action for retaliatory discharge penalties. The supreme
court then recognized this court’s decision in Totty v. Dravo Corp., 413 So.2d 684
(La.App. 3 Cir. 1982), in which we likened the Illinois Industrial Commission to a
court for the purposes of interruption of prescription. The supreme court observed
3 that the Illinois Industrial Commission had adjudicatory powers much like the Office
of Workers’ Compensation after the 1988 amendments and the 1990 constitutional
amendment.
Pursuant to 5 U.S.C.A. § 8145, the Secretary of Labor has the authority to
administer and decide all issues arising under the federal workers’ compensation
laws. See Bruni v. The United States, 964 F.2d 76 (1 Cir. 1992). Therefore, the
United States Department of Labor, Office of Workers’ Compensation had
adjudicatory authority over Mr. Evans’ federal workers’ compensation claim.
The Evanses’ petition alleges that Mr. Evans filed a claim for federal workers’
compensation benefits within one year of the January 22, 2004 accident. The petition
further states that an appeal from the decision of his federal workers’ compensation
case was perfected on March 17, 2005, and is still pending. At the hearing on the
exception of prescription, the Evanses introduced a copy of the federal claim form
filed by Mr. Evans, indicating a filing date of January 22, 2004. A decision denying
his claim was received on March 24, 2004. Mr. Evans requested reconsideration on
March 23, 2005. He did not receive a decision vacating the earlier decision until
August 19, 2005, several months after he and his wife filed the state tort claim.
Therefore, his claim was still pending when the tort suit was filed.
For the above reasons, we find that Mr. Evans’ filing of his federal workers’
compensation claim within a year of his accident interrupted prescription as to the
filing of the state tort claim against Mr. Smith and his insurer, State Farm. The trial
court erred in granting State Farm’s exception of prescription. Therefore, we reverse
the judgment rendered in favor of State Farm as the liability insurer of Derrick Smith
and remand the case for further proceedings. Costs of this appeal area assessed to
State Farm.
4 REVERSED AND REMANDED.