Andrew Kidder v. Statewide Transport, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-594

ANDREW KIDDER

VERSUS

STATEWIDE TRANSPORT, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20121555
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

Saunders, J., agrees, in part, and concurs, in part with written reasons.

REVERSED AND REMANDED.

Julian Louis Gibbens, III
P. O. Box 90290
Lafayette, LA 70509
Telephone: (337) 235-8815
COUNSEL FOR:
Plaintiff/Appellee - Andrew Kidder

Roger Anthony Javier
The Javier Law Firm
2010 Energy Centre
100 Poydras Street
New Orleans, LA 70163
Telephone: (504) 599-8570
COUNSEL FOR:
Defendant/Appellee - Transport Leasing/Contract, Inc.

Jason E. Fontenot
Jason E. Fontenot, APLC
P. O. Box 52307
Lafayette, LA 70505
Telephone: (337) 234-7355
COUNSEL FOR:
Plaintiff/Appellee - Andrew Kidder

Chris Broadwater
Gashe, Coudrain & Sandage
P. O. Drawer 1509
Hammond, LA 70404-1509
Telephone: (985) 542-6848
COUNSEL FOR:
Defendant/Appellant - Statewide Transport, Inc.

THIBODEAUX, Chief Judge.

A delivery driver filed suit against his former employer for unpaid

overtime wages under the Federal Fair Labor Standards Act (FLSA), 29 U.S.C.A.

§ 207, and La.R.S 23:632. After the employer failed to timely answer the petition,

the trial court confirmed a default judgment, awarding the driver overtime wages,

liquidated damages, penalties, and attorney fees under both the FLSA and La.R.S.

23:632. Considering the FLSA preempts state law recovery for unpaid overtime

compensation for employees engaged in interstate commerce and the driver failed

to present sufficient evidence at the confirmation hearing regarding his status as an

employee engaged in either interstate or intrastate commerce, we reverse the trial

court‘s confirmation of the default judgment and remand the case for further

proceedings.

I.

ISSUE

We shall consider whether sufficient evidence was presented to

confirm a default judgment awarding a former driver of a delivery company unpaid

overtime wages, liquidated damages, penalties, and attorney fees under both the

FLSA and La.R.S. 23:632. As part of this review, we shall consider the res nova

issues in this circuit regarding whether the FLSA preempts state law recovery for

unpaid overtime wages and whether the language of La.R.S. 23:631-32 allows for

such a recovery.

II.

FACTS AND PROCEDURAL HISTORY

Andrew Kidder worked as a delivery driver for Statewide Transport,

Inc. for varying periods of time since 2008. Specifically, Mr. Kidder worked as a

van driver from June 12, 2008 to June 17, 2008 and again from September 14,

2009 to November 5, 2009. He also worked as a truck driver from December 2,

2008 to March 27, 2009 and from August 17, 2011 to September 21, 2011.

Mr. Kidder sued Statewide for unpaid overtime wages, liquidated

damages, penalties, and attorney fees under the FLSA and La.R.S. 23:632. Along

with his petition, Mr. Kidder filed interrogatories and requests for production of

documents. Statewide filed answers to the interrogatories and production requests

but failed to file a formal answer to Mr. Kidder‘s petition. Given Statewide‘s

failure to answer, the trial court granted Mr. Kidder‘s motion for preliminary

default. A confirmation hearing was held where Mr. Kidder presented his own

testimony and evidence that he worked for Statewide as a truck driver in Louisiana

and was never paid overtime wages. The trial court confirmed the default

judgment and awarded Mr. Kidder $1,726.65 in overtime compensation and

$1,726.65 in liquidated damages under the FLSA. The court also awarded Mr.

Kidder $7,200.00 in penalty wages under La.R.S. 23:632 and $7,100.00 in attorney

fees.

III.

STANDARD OF REVIEW

We restrict our review of default judgments to a consideration of the

sufficiency of the evidence offered to support the judgment. Being a question of

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fact, this appeal is subject to a manifest error standard of review. Wagner v.

Alford, 09-1338 (La.App. 3 Cir. 4/7/10), 34 So.3d 1018; Bordelon v. Sayer, 01-717

(La.App. 3 Cir. 3/13/02), 811 So.2d 1232, writ denied, 02-1009 (La. 6/21/02), 819

So.2d 340.

IV.

LAW AND DISCUSSION

Confirmation of a default judgment requires admissible evidence

sufficient to establish a prima facie case. La.Code Civ.P. art. 1702(A). ―[T]he

plaintiff must present competent evidence that convinces the court that it is

probable he would prevail at trial on the merits.‖ Wagner, 34 So.3d at 1021.

Furthermore, the plaintiff ―must prove both the existence and the validity of his

claim.‖ Id.

In our review of the evidence, we find that Mr. Kidder failed to

establish a prima facie case that he was entitled to default judgment under federal

law. 29 U.S.C.A. § 207(a)(1) establishes the overtime wage requirements under

the FLSA:

Except as otherwise provided in this section, no employer
shall employ any of his employees who in any workweek
is engaged in commerce or in the production of goods for
commerce, or is employed in an enterprise engaged in
commerce or in the production of goods for commerce,
for a workweek longer than forty hours unless such
employee receives compensation for his employment in
excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.

The FLSA further provides that overtime wages under § 207 do not apply to ―any

employee with respect to whom the Secretary of Transportation has power to

establish qualifications and maximum hours of service pursuant to the provisions

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of section 31502 of Title 49.‖ 29 U.S.C.A § 213(b)(1). While at one time this

overtime wage exemption applied to all employees of motor carriers and private

motor carriers under 49 U.S.C.A § 31502, Congress amended the FLSA in 2008,

allowing § 207 to ―apply to a covered employee notwithstanding [29 U.S.C.A. §

213(b)(1)].‖ SAFETEA–LU Technical Corrections Act of 2008, Pub. L. 110–244,

§ 306(a), 122 Stat 1572 (2008). The Congressional amendment defined a covered

employee as follows:

(c) COVERED EMPLOYEE DEFINED. — In this
section, the term ―covered employee‖ means an
individual —

(1) who is employed by a motor carrier or motor
private carrier (as such terms are defined by
section 13102 of title 49, United States Code, as
amended by section 305);

(2) whose work, in whole or in part, is defined —

(A) as that of a driver, driver's helper,
loader, or mechanic; and

(B) as affecting the safety of operation of
motor vehicles weighing 10,000 pounds or
less in transportation on public highways in
interstate or foreign commerce, except
vehicles —

(i) designed or used to transport more
than 8 passengers (including the
driver) for compensation;

(ii) designed or used to transport more
than 15 passengers (including the
driver) and not used to transport
passengers for compensation; or

(iii) used in transporting material
found by the Secretary of
Transportation to be hazardous under
section 5103 of title 49, United States
Code, and transported in a quantity
requiring placarding under regulations

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prescribed by the Secretary under
section 5103 of title 49, United States
Code; and

(3) who performs duties on motor vehicles
weighing 10,000 pounds or less.

Id. at § 306(c).

Through this amendment, drivers employed by motor carriers may only recover

overtime wages under the FLSA if the driver is operating a motor vehicle that is

engaged in interstate commerce and weighs 10,000 pounds or less.

While Mr. Kidder presented evidence and testimony at the

confirmation hearing that he was never paid overtime wages during his

employment with Statewide, he failed to present any evidence regarding the

weights of the vans and trucks he drove. Furthermore, Mr. Kidder testified that he

only drove within the state of Louisiana. While 29 C.F.R. § 782.7(b)(1) states that

―[t]ransportation within a single State is in interstate commerce within the meaning

of the Fair Labor Standards Act where it forms a part of a ‗practical continuity of

movement‘ across State lines from the point of origin to the point of destination,‖

Mr. Kidder did not present any evidence to indicate the materials he transported for

Statewide actually crossed state lines to become part of this practical continuity of

interstate commerce. Considering these are essential elements to overtime

compensation recovery under the amendments to the FLSA, Mr. Kidder did not

provide sufficient evidence to sustain a prima facie case.

Statewide also contends that the trial court improperly granted default

judgment in favor of Mr. Kidder under La.R.S. 23:632 since the FLSA preempts

any recovery under Louisiana law for unpaid overtime wages. Federal preemption

is an affirmative defense that must be raised in the pleadings. Shrader v. Life Gen.

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Sec. Ins. Co., 588 So.2d 1309 (La.App. 2 Cir. 1991), writ denied, 592 So.2d 1317

(La.1992). ―[A] defendant against whom a default judgment is confirmed may not

assert an affirmative defense on appeal.‖ Hall v. Folger Coffee Co., 02-920, p. 13

(La.App. 4 Cir. 10/1/03), 857 So.2d 1234, 1244-45, writ denied, 03-1756 (La.

10/17/03), 855 So.2d 762. While Statewide cannot technically raise the federal

preemption argument for the first time on appeal, our standard of review demands

that we consider this issue and the scope of the state law since there can never be

sufficient evidence to support a default judgment for overtime wages under state

law if such recovery is preempted.

In Odom v. Respiratory Care, Inc., 98-263, p. 4 (La.App. 1 Cir.

2/19/99), 754 So.2d 252, 256, the first circuit held that the FLSA overtime

provisions preempt Louisiana state law, reasoning that La.R.S. 23:631-32 ―did not

apply under these circumstances because there is a distinction between an

employer timely paying earned wages for all hours worked, and an employer

refusing to pay the extra wages an employee claims are due on the hours he

worked in excess of the statutory maximum.‖ While we are cognizant of the first

circuit‘s opinion, we are not bound by this statutory interpretation and respectfully

disagree. See Thompson Tree & Spraying Service, Inc. v. White-Spunner Const.,

Inc., 10-1187 (La.App. 3 Cir. 6/1/11), 68 So.3d 1142, writ denied, 11-1417 (La.

9/30/11), 71 So.3d 290; Albert Tate, Jr., Civilian Methodology in Louisiana, 44

TUL. L. REV. 673 (1970). Rather, we conclude that the FLSA overtime provisions

preempt Louisiana state law only for employees engaged in interstate commerce;

employees engaged in intrastate commerce may still recover for unpaid overtime

under La.R.S. 23:631-32.

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The enactment of the FLSA represents a valid exercise of Congress‘

exclusive power to regulate interstate commerce under U.S. Const. art. I, § 8, cl. 3.

Opp Cotton Mills v. Adm’r of Wage and Hour Div. of Dep’t of Labor, 111 F.2d 23

(5th Cir. 1940), aff’d, 312 U.S. 126, 61 S.Ct. 524. ―It is well established that,

when Congress acts under this power, its legislation primes and supersedes state

legislation.‖ Paul Klopstock & Co. v. United Fruit Co., 131 So. 25, 26 (La.1930).

The reasoning behind this field preemption is clear:

Even though the penalties of both the state and
federal statutes could be imposed without there being a
direct conflict, we believe the penalty provision of the
Federal act, when invoked, becomes exclusive and the
penalty provisions of the state statute may not be applied.
There may be no exact conflict in actual application of
the two penalties, but, nevertheless, they conflict in
essence because of duplicity.

Divine v. Levy, 36 F.Supp. 55, 58 (W.D. La. 1940).

Considering the FLSA explicitly provides penalties for failure to pay

overtime wages under 29 U.S.C.A. § 216, any similar penalties under Louisiana

law must be preempted by the FLSA for employees engaged in interstate

commerce.

While the FLSA may preempt state law recovery for employees

engaged in interstate commerce, employees engaged solely in intrastate commerce

can recover for overtime compensation under state law. Louisiana Revised

Statutes 23:632 allows for recovery of penalty wages and reasonable attorney fees

for failure to comply with the provisions of 23:631. In pertinent part, La.R.S.

23:631(A)(1)(a) states:

Upon the discharge of any laborer or other employee of
any kind whatever, it shall be the duty of the person
employing such laborer or other employee to pay the
amount then due under the terms of employment,

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whether the employment is by the hour, day, week, or
month, on or before the next regular payday or no later
than fifteen days following the date of discharge,
whichever occurs first.

Notably, the statutory language in La.R.S. 23:631(A)(1)(a) does not distinguish

between regularly earned wages and overtime compensation as the first circuit in

Odom implies. Rather, the statute mandates through more encompassing language

that the employer pay ―the amount then due under the terms of employment.‖ It is

presumed in Louisiana that ―every word, sentence, or provision in a law [is]

intended to serve some useful purpose, that some effect is to be given to each such

provision, and that no unnecessary words or provisions [are] employed.‖ Colvin v.

Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104, p. 6 (La.

1/17/07), 947 So.2d 15, 19. If the legislature intended La.R.S. 23:631 to only

apply to regularly earned wages, it would have explicitly stated so in the statute.

However, the language is unambiguously broad in scope; it mandates that an

employer pay any amount that an employee justifiably earns under the terms of his

employment. There is nothing to suggest that such payment does not include

overtime wages. ―When a law is clear and unambiguous and its application does

not lead to absurd circumstances, the law shall be applied as written and no further

interpretation may be made in search of the intent of the legislature.‖ La.Civ.Code

art. 9. In order to give proper effect to these words and avoid an overly narrow

interpretation of the statute, we apply the law as written and hold that La.R.S.

23:631 requires payment of overtime compensation to employees engaged

exclusively in intrastate commerce.

Applying these principles to Mr. Kidder‘s case, confirmation of a

default judgment under La.R.S. 23:632 must include evidence indicating that he

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engaged solely in intrastate commerce. Here, as discussed above, while Mr.

Kidder testified he only drove in Louisiana, he failed to provide sufficient evidence

regarding what was transported to determine whether he worked in interstate or

intrastate commerce. As such, he failed to present sufficient evidence to establish

a prima facie case.

We reverse the trial court‘s default judgment. The case is remanded

to the trial court to allow Mr. Kidder to establish, if possible, his claims under

either the FLSA or La.R.S. 23:632 depending on his status as an employee

engaged in either interstate or intrastate commerce. Statewide is reserved the right

to file an answer to these claims. See Dundee Tailoring Co. v. Jefferson Davis

Parish Sch. Bd., 264 So.2d 316 (La.App. 3 Cir. 1972).

V.

CONCLUSION

For the foregoing reasons, we reverse the default judgment and

remand this case to the trial court for further proceedings in accordance with this

opinion.

REVERSED AND REMANDED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-594

ANDREW KIDDER

VERSUS

STATEWIDE TRANSPORT, INC., ET AL.

SAUNDERS, J. agrees, in part, and concurs, in part with written reasons.

I agree with the majority opinion that Mr. Kidder failed to provide the

proper evidence to prove entitlement to confirmation of his preliminary default

judgment under federal law. While I agree with the result of the majority opinion

regarding Mr. Kidder’s state law action, I disagree with how it adjudicates Mr.

Kidder’s confirmation of his preliminary default judgment regarding state law.

The majority opinion states that in order to prove entitlement to his

preliminary default judgment under state law, Mr. Kidder “must include evidence

indicating that [he] engaged solely in intrastate commerce.” Further, the majority

opines that Mr. Kidder failed to do so because he “failed to provide sufficient

evidence regarding what was transported to determine whether he worked in

interstate or intrastate commerce.” I feel these two statements merit more

discussion.

I feel that the majority opinion overstates what evidence was necessary to

have been provided by Mr. Kidder in order for him to recover under state law.

Louisiana Revised Statutes 23:631 and 632 only require that Mr. Kidder provide

evidence that he was not properly paid under the terms of his employment with

Statewide. To me, the majority opinion’s statements cited above can be read to

place a burden on Mr. Kidder to show that he was not working in interstate

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commerce. This is clearly not the case, as asserting that Mr. Kidder was engaged

in interstate commerce, and thus ineligible to recover under state law, would be an

affirmative defense against an action based in state law. Such affirmative defenses

are the defendant’s burden to assert and prove, and would not properly be required

of a plaintiff such as Mr. Kidder.

In my view, both judicial efficiency and proper appellate methodology

would best be served by reversing the award given under federal law and affirming

the award given under state law instead of reversing that award and remanding the

case. This being stated, I must concede that the ends of justice might best be

achieved by remanding the case for further proceedings as dictated by the majority

opinion. Accordingly, I concur, in part.

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