Joey James v. State of Louisiana, Department of Wildlife & Fisheries

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-399

JOEY JAMES

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF WILDLIFE & FISHERIES

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 20082514
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, J. David Painter, James
T. Genovese and Shannon J. Gremillion, Judges.

REVERSED.

Painter, J., dissents and assigns written reasons.

Pickett, J., dissents for the reasons assigned by Judge Painter.

Henry St. Paul Provosty
Lena Giangrosso
Provosty & Gankendorff
650 Poydras St., Suite 2700
New Orleans, LA 70130
(504) 410-2795
Counsel for Defendant/Appellant:
State of Louisiana, Department of Wildlife & Fisheries

Jere Jay Bice
Bice, Palermo & Veron
P. O. Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
Counsel for Plaintiff/Appellee:
Joey James

GREMILLION, Judge.

The State of Louisiana, through the Department of Wildlife & Fisheries (the

department), appeals the summary judgment granted in favor of Joey James, declaring

that James, an employee of the department, is entitled to pursue his remedies under

the Jones Act, 46 USC § 30104, against the department. For the reasons that follow,

we reverse.

FACTS

James alleged in his petition against the department that he was employed as

a Senior Wildlife Enforcement Agent off the coast of Cameron Parish in the Gulf of

Mexico on May 20, 2007, when he was injured. He alleged a number of deficiencies

in the boat and its operation, and its lack of seaworthiness. The department

responded with a number of exceptions, all based upon its contention that James’s

exclusive remedy lay in workers’ compensation. See La.R.S. 23:1032 et seq. The

trial court denied those exceptions.

Thereafter, the department sought summary judgment on this same issue.

James responded with a motion for summary judgment of his own, seeking a

declaration that his exclusive remedy did not lie in workers’ compensation. The trial

court denied the department’s motion and granted James’s. The department then

perfected this appeal.

ANALYSIS

The Jones Act allows a seaman injured in the course of employment to bring

a civil suit against his employer. Because the Jones Act was enacted by Congress, a

constitutional question is implicated when the employer is a state. The Eleventh

Amendment to the United States Constitution limits Congress’s ability to subject

states to suit. The United States Supreme Court has held that, in the context of the

Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq., a state that has not waived

sovereign immunity may not be subjected to suit in state court for a violation thereof.

Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240 (1999). Thus, a state that has not

waived sovereign immunity or otherwise consented to being sued is arguably not

subject to suit under the Jones Act. An en banc panel of our colleagues on the fourth

circuit have held that the department is subject to Jones Act claims. Fulmer v. Dept.

of Wildlife and Fisheries, 10-88 (La.App. 4 Cir. 10/6/10), ___ So.3d ___. In Fulmer,

the fourth circuit specifically overruled its decision in Kuebel v. Dept. of Wildlife and

Fisheries, 08-1018 (La.App. 4 Cir. 4/15/09), 14 So.3d 20, writ denied, 09-1083 (La.

7/4/09), 17 So.3d 964. We respectfully disagree with our colleagues.

Article 12, § 10(A) of the Louisiana Constitution provides, “Neither the state,

a state agency, nor a political subdivision shall be immune from suit in contract or for

injury to person or property.” This provision must be read in pari materia with

subsection (C), which states that the legislature “may limit or provide for the extent

of liability of the state, a state agency, or a political subdivision in all cases, including

the circumstances giving rise to liability and the kinds and amounts of recoverable

damages.” The fourth circuit majority omitted subsection (C) from its analysis

entirely, as pointed out by Judge Belsome in his dissent.

An in pari materia reading of these two provisions reveals that Louisiana has

conditionally waived sovereign immunity; for while the state may be sued in contract

or tort, the legislature retains the right to define the circumstances under which it is

liable and limit the amount of its liability. The pertinent question that follows is

whether the legislature has limited the department’s liability to a seaman it employed.

In order to determine whether state workers’ compensation law allows James

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to pursue a claim under the Jones Act, we must first examine the exclusivity

provisions of our workers’ compensation law. There are two relevant statutes.

One is Louisiana Revised Statute 23:1034 which we cited above. This is a

specific exclusivity provision directed at state employees.

The other is Louisiana Revised Statute 23:1032 which also governs exclusivity

and provides:

§ 1032. Exclusiveness of rights and remedies; employer’s liability to
prosecution under other laws

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,
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. (Empahsis added).

This is the general exclusivity statute for all employees in the state and includes an

exception for statutorily created rights such as Jones Act cases.

The question for the court then is which of these statutes applies to James? The

answer is obvious: James is a state employee. Therefore, La.R.S. 23:1034 applies.

This is a critical determination because there is a notable difference in the two

statutes. La.R.S. 23:1034 does not contain the “unless. . .” provision contained in

La.R.S. 23:1032. This is the language which creates the exception for Jones Act

claims. Therefore, state employees are not entitled to make claims under the Jones

act or any other statutorily created remedy. La.R.S. 23:1034. Workers’ compensation

is the exclusive remedy for state employees without exception. Id.

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The right to pursue a Jones Act claim by an injured employee is reserved by

La.R.S. 23:1035.2, which provides:

No compensation shall be payable in respect to the disability or death of
any employee covered by the Federal Employer’s Liability Act, the
Longshoremen’s and Harbor Worker’s Compensation Act, or any of its
extensions, or the Jones Act.

Our fourth circuit colleagues analyzed this provision and § 1034 and determined that

they were in conflict. The fourth circuit arrived at the conclusion that a seaman’s

remedies against the department were not limited by the exclusivity provision of §

1034. Our analysis demands a contrary conclusion.

We must conclude that James is not entitled to pursue his claim under the Jones

Act. The legislature enacted La.R.S. 23:1035.2 to make clear that employees entitled

to make federal claims are not entitled to make claims under workers’ compensation.

This makes perfect sense in light of the exception created in La.R.S. 23:1032. It also

makes it clear that there is no actual conflict between La.R.S. 23:1034 and La.R.S.

23:1035.2. Louisiana Revised Statute 23:1035.2 is simply inapplicable to state

employees because La.R.S. 23:1034 bars them from making federal claims.

CONCLUSION

The State of Louisiana has, through the legislature, chosen to limit its liability

to employees injured on the job to the benefits afforded by the Workers’

Compensation Act. This exclusivity of remedy admits of no exception. The

judgment of the trial court granting summary judgment in favor of appellee, Joey

James, is reversed. All costs of this appeal are taxed to appellee, Joey James.

REVERSED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-399

JOEY JAMES

VERSUS

STATE OF LOUISIANA,
DEPARTMENT OF WILDLIFE
& FISHERIES

PAINTER, J., dissenting.

I respectfully dissent from the majority’s decision to reverse the trial court’s

grant of summary judgment in favor of Joey James, a Senior Wildlife Enforcement

Agent for the Louisiana Department of Wildlife & Fisheries, finding that James was

entitled to pursue his remedies under the Jones Act, 46 USC § 30104.

The issue is whether, under Louisiana workers’ compensation laws, James is

allowed to pursue a claim under the Jones Act. The majority answers this inquiry in

the negative and disagrees with an en banc panel of our fourth circuit brethren in

Fulmer v. Dept. of Wildlife and Fisheries, 10-88 (La.App. 4 Cir. 10/6/10), ___ So.3d

___. I am, however, of the opinion that the reasoning of Fulmer is sound and

applicable to this case.

Louisiana Revised Statutes 23:1035.2 provides that: “No compensation shall

be payable in respect to the disability or death of any employee covered by the

Federal Employer's Liability Act, the Longshoremen's and Harbor Worker's

Compensation Act, or any of its extensions, or the Jones Act.” (Emphasis added.)

This statute specifically uses the words “any employee.” Thus, I agree with the

Fulmer court’s pronouncement that:

Pursuant to this provision, it appears that our Legislature

recognizes that employees may also be covered by federal laws
providing remedies, and that in such cases workers' compensation
benefits are not payable. In the unpublished decision rendered in Cosey,
this court concluded that this language demonstrated that the remedies
provided by the Louisiana Workers' Compensation Act and by the Jones
Act were mutually exclusive remedies; thus, it was not the intent of the
law to deprive the employee of his right to seek his federal remedy in
state court.

Id. at ___.

Thus, I would affirm the trial court’s grant of summary judgment in favor of

James.