Roy E. Evans v. Derrick D. Smith

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-974

ROY E. EVANS, ET AL.

VERSUS

DERRICK D. SMITH, ET AL.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 77965, DIV. B
HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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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.

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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-

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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

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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.

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REVERSED AND REMANDED.

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