Barbara J. Shorter v. Misty L. Akins

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1553

BARBARA J. SHORTER

VERSUS

MISTY L. AKINS, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 237,805
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

REVERSED AND REMANDED.

Howell D. Jones, IV
Attorney at Law
Post Office Box 14558
Alexandria, Louisiana 71315
(318) 442-1515
Counsel for Plaintiff/Appellant:
Barbara J. Shorter

Thomas Wahlder
Attorney at Law
1740 Jackson Street
Alexandria, Louisiana 71301
(318) 442-9417
Counsel for Plaintiff/Appellant:
Barbara J. Shorter

Laurel I. White
Assistant Attorney General
Post Office Box 1710
Alexandria, Louisiana 71309
(318) 487-5944
Counsel for Defendants/Appellees:
The Board of Supervisors of LSU and Agricultural and Mechanical College
State of Louisiana, through the LSU Health Care Services Division d/b/a
Huey P. Long Medical Center
Misty L. Akins

KEATY, Judge.

Plaintiff appeals a judgment of the trial court granting an exception of no

right of action filed by the defendant and dismissing her suit with prejudice. For

the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 28, 2009, Barbara Shorter was involved in an accident in the

parking lot of Huey P. Long Medical Center (HPLMC) in Pineville, Louisiana.

According to the petition for damages, Shorter backed out of a parking space and

came to a complete stop when her car was struck by a van owned by HPLMC and

operated by Misty Akins in the course and scope of her employment with

HPLMC. 1 Named as defendants in the action were Akins and The Board of

Supervisors of Louisiana State University and Agricultural and Mechanical

College through the Louisiana State University Health Care Services Division

d/b/a Huey P. Long Medical Center (HPLMC), whom Shorter claimed was

vicariously liable for the negligence of its employee, Akins.

HPLMC filed an exception of no right of action claiming that, because

Shorter was its employee and in the course and scope of her employment when the

accident occurred, her remedy against it was limited to workers’ compensation.

See La.R.S. 23:1032. HPMLC prayed that judgment be rendered in its favor,

dismissing Shorter’s tort suit against it.

Shorter opposed the exception, contending that she had finished her shift,

clocked out, and was on her way home when the accident occurred. She attached

to her memorandum in opposition an affidavit wherein she stated that on July 28,

2009, her work hours were from 6:00 a.m. to 2:30 p.m., and that when the accident

1
Although Shorter originally filed her petition in Pineville City Court, by order dated
February 26, 2010, the matter was transferred to the Ninth Judicial District Court in the Parish of
Rapides at her request.

occurred in the hospital’s parking lot around 3:00 p.m., she had completed her

work for the day, was not on the clock, and was not being compensated for her

time.

Following a hearing on August 1, 2011, the trial court rendered judgment in

favor of HPLMC, granting the exception of no right of action and dismissing

Shorter’s suit with prejudice at her cost. Shorter now appeals, asserting that the

trial court erred in granting the exception of no right of action because she belongs

to the class of persons to whom the law grants the cause of action asserted in her

suit. She further asserts that the trial court erred in finding that her injury occurred

in the course and scope of her employment and that it arose out of her employment.

DISCUSSION

The peremptory exception of no right of action tests whether
the plaintiff has any interest in judicially enforcing the right asserted.
To prevail on an exception of no right of action, the defendant must
show that the plaintiff does not have an interest in the subject matter
of the lawsuit or the legal capacity to proceed.

Because it involves a question of law, the standard of review of
the trial court’s granting of the exception of no right of action is de
novo review.

Bennett v. Porter, 10-1088, pp. 7-8 (La.App. 3 Cir. 3/9/11), 58 So.3d 663, 670

(citations omitted).

The exception does not raise the question of the plaintiff’s ability to
prevail on the merits nor the question of whether the defendant may
have a valid defense. Evidence supporting or controverting an
objection of no right of action is admissible. The party raising a
peremptory exception bears the burden of proof.

Falcon v. Town of Berwick, 03-1861, p. 3 (La.App. 1 Cir. 6/25/04), 885 So.2d

1222, 1224 (citations omitted).

As the exceptor, HPLMC had the burden of showing that Shorter did not

have an “interest in judicially enforcing the right asserted” in her suit against it.

See Bennett, 58 So.3d at 670. In other words, HPLMC had to prove that Shorter

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had no right to proceed against it in tort and was instead limited by the exclusivity

provisions of “the Louisiana Workers[’] Compensation Act, La.R.S. 23:1032,

which provides immunity from civil liability in favor of an employer.”2 Broussard

v. Smith, 08-473, p. 2 (La.App. 3 Cir. 12/3/08), 999 So.2d 1171, 1173. To satisfy

its burden, HPLMC had to prove that Shorter was in the course and scope of her

employment when the accident occurred, and it made such an assertion in its

exception of no right of action. Shorter opposed that assertion by filing an

affidavit challenging the assertion on the basis that she was no longer in the course

and scope of her employment at the time of the accident. HPLMC offered no

evidence to contradict the assertions attested to in Shorter’s affidavit.

Based on our de novo review of the record, we conclude that HPLMC did

not meet its burden of proving that Shorter had no right to proceed against it in tort.

Accordingly, we reverse the trial court’s judgment granting HPLMC’s exception of

no right of action and dismissing Shorter’s petition against it, and we remand this

matter to the trial court for further proceedings consistent with this opinion.

CONCLUSION

For the forgoing reasons, we reverse the trial court’s judgment granting the

exception of no right of action filed by the Board of Supervisors of Louisiana State

University and Agricultural and Mechanical College through the Louisiana State

University Health Care Services Division d/b/a Huey P. Long Medical Center, and

we remand this matter to the trial court for further proceedings consistent with this

opinion. All costs of this appeal are assessed against the Board of Supervisors of

Louisiana State University and Agricultural and Mechanical College through the

2
The intentional act exception to this exclusivity rule is not at issue in this matter as
Shorter asserted that the accident was caused by Akins’ negligence. She did not allege that
Akins was guilty of committing an intentional tort against her. See La.R.S. 23:1032(B).
3

Louisiana State University Health Care Services Division d/b/a Huey P. Long

Medical Center.

REVERSED AND REMANDED.

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