Anthony Deshotel v. Guichard Operating Company, Inc.

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,

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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.

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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.

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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:

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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

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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.

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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’

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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.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-303

ANTHONY DESHOTEL, ET AL.

VERSUS

GUICHARD OPERATING COMPANY, INC.

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.

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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.

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