James Michael Owens v. State of Louisiana D/B/A Louisiana Community and Technical College System

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-725

JAMES MICHAEL OWENS

VERSUS

STATE OF LOUISIANA D/B/A LOUISIANA COMMUNITY AND
TECHNICAL COLLEGE SYSTEM

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 245,119
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery,
Judges.

REVERSED AND REMANDED.

Pickett, J., concurs.

Angelo Joseph Piazza, III
Attorney at Law
P. O. Box 429
Marksville, LA 71351
(318) 253-6423
COUNSEL FOR PLAINTIFF/APPELLANT:
James Michael Owens

Leanne Bridges
Attorney at Law
P. O. Box 1710
Alexandria, LA 71309
(318) 487-5944
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana

SAUNDERS, Judge.

This is an appeal regarding whether an employee’s tort suit against his

employer was properly dismissed via an exception of no right of action. The

employee contends that he very clearly alleged that the employer was intentionally

tortious, and, thus, he had a remedy against that employer in tort. The employer

contends that the employee’s remedy is exclusively in workers’ compensation.

We find that the trial court erroneously granted the employer’s exception of

no right of action. Accordingly, we reverse the trial court’s judgment and remand

the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY:

James Michael Owens was employed by the State of Louisiana (the State) as

a welding instructor at the Alexandria campus of the Louisiana Community and

Technical College from 1991 through April 2012. Owens filed a tort suit against

the State on July 23, 2012. In his petition, Owens alleges that he was working in a

building with inadequate ventilation which resulted in his exposure to high levels

of particulate matter and chromium from 2008 through April of 2012. Owens

further alleged that the administration was made aware of this exposure in 2008,

but never repaired the ventilation system. Finally, Owens alleges that he suffered

injuries as a result of the continuous exposure.

On October 4, 2012, the State filed an exception of no right of action. The

matter was heard on January 13, 2014. On February 18, 2014, the trial court issued

written reasons. Despite the transcript of the hearing indicating that the trial court

was persuaded by Owens’ argument that he had a right of action, on March 31,

2014, the trial court issued a judgment sustaining the State’s exception of no right

of action, finding that Owens’ exclusive remedy is workers’ compensation, and

dismissing Owens’ suit with prejudice.

Owens filed the appeal now before us. In it, he alleges one assignment of

error.

DISCUSSION OF THE MERITS:

Owens’ assignment of error is that the trial court erred as a matter of law by

dismissing his claim of intentional tort with prejudice for no right of action.

Alternatively, Owens contends that the trial court erred as a matter of law by not

allowing him the opportunity to amend his petition to state a right of action.

Whether a plaintiff has a right of action is a question of law.
Mississippi Land Company v. S & A Properties II, Inc., 01-1623
(La.App. 3 Cir. 5/8/02), 817 So.2d 1200. An appellate court considers
whether a trial court’s ruling on an Exception of No Right of Action is
legally correct via a de novo review. Boyer v. Stric–Lan Cos. Corp.,
04-872 (La.App. 3 Cir. 11/10/04), 888 So.2d 1037.

The burden of proving that a plaintiff has no right of action is
on the movant. State on behalf of Jones v. Mallet, 97-611 (La.App. 3
Cir. 12/17/97), 704 So.2d 958. The test for the application of the
Peremptory Exception of No Right of Action is whether this plaintiff
has the capacity or legal interest to enforce the rights asserted in the
petition. This exception is a threshold device that terminates suits
brought by one who cannot enforce the right asserted judicially.
Babineaux v. Pernie–Bailey Drilling Co., 261 La. 1080, 262 So.2d
328 (1972). “The exception of no right of action assumes that the
petition states a valid cause of action for some person and questions
whether the plaintiff in the particular case is a member of the class
that has a legal interest in the subject matter of the litigation.” Indus.
Cos., Inc. v. Durbin, 02-665, p. 12 (La.1/28/03), 837 So.2d 1207,
1216.

Randall v. Concordia Nursing Home, 07-101, pp. 4-5 (La.App. 3 Cir. 8/22/07),

965 So.2d 559, 564, writ denied, 07-2153 (La. 1/7/08), 973 So.2d 726.

Generally, when a worker seeks to recover from her employer
for injuries suffered during the course and scope of employment,
recovery is limited through the Louisiana Workers Compensation Act,
La.R.S. 23:1032, which provides immunity from civil liability in
favor of an employer. Cole v. State, Dept. of Pub. Safety & Corr., 01-
2123 (La.9/4/02), 825 So.2d 1134, 1138.

La. R.S. 23:1032(A)(1)(a) provides, in pertinent part:

Except for intentional acts provided for in
Subsection B, the rights and remedies herein granted to
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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.

In interpreting the Workers Compensation Act, the Louisiana
Supreme Court has held that:

[C]ompensation shall be an employee’s exclusive
remedy against his employer for an unintentional injury
covered by the act, but that nothing shall prevent an
employee from recovering from his employer under
general law for intentional tort.

Caudle v. Betts, 512 So.2d 389, 390 (La.1987).

Broussard v. Smith, 08-473, pp. 2-3 (La.App. 3 Cir. 12/3/08), 999 So.2d 1171,

1173-74.

Prior to analysis, we note that there is some discussion in brief as to whether

the trial court found that Owens’ petition stated no cause of action rather than that

Owens had no right of action. This discussion is based on statements made by the

trial court at the January 13, 2004 hearing and the February 18, 2014 written

reasons for judgment issued by the trial court. “It is well settled that reasons for

judgment are not appealable, as an appeal is to address the written, final,

appealable judgment.” Highsmith v. Foret, 13-441, p. 12 (La.App. 3 Cir.

10/30/13), 124 So.3d 571, 579, writ denied, 13-2756 (La. 2/14/14) (citing

McFadden v. Import One, Inc., 10-952 (La.App. 3 Cir. 2/9/11), 56 So.3d 1212,

LaRocca v. Bailey, 01-618 (La.App. 3 Cir. 11/7/01), 799 So.2d 1263, and La.Code

Civ.P. art.1918). Accordingly, our analysis in this appeal will focus on whether

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the trial court’s judgment was legally correct in granting the State’s exception of

no right of action. Subsequently, however, we will address the issues raised in

brief in an attempt to clarify, in our view, a potential misapplication of

jurisprudence.

In the case before us, it is undisputed that Owens was an employee of the

State. Owens, in his petition for damages, asserts that he suffered damages and has

the right to recover in tort from his employer for those damages because “State of

Louisiana, through its administrators and faculty, was negligent and/or at fault in

the following particulars:

....

D.) intentionally exposing plaintiff, James M. Owens, to particulates,

including chromium, causing the conditions described above[.]”

Assuming that Owens’s petition has stated a valid cause of action for the

purpose of deciding an exception of no right of action, we find that Owens has a

right of action against the State under La.R.S. 1032 because Owens has a legal

interest in recovering damages for his own injury that he sustained due to the

alleged intentional tort committed by the State through its administrators and

faculty. Accordingly, we find that the trial court erred in its judgment that Owens

does not have a right of action against the State.

We do note that there is some confusion as to whether the trial court ruled as

it did based on a finding that Owens’ petition failed to state a cause of action or on

a finding that Owens had no right of action. This is so because, on January 13,

2014, after hearing on the State’s exception of no right of action, the trial court

stated,

The essential function of an exception of no right of action is to test
whether the plaintiff has a real and actual interest in the action, which
I believe that he does. Its purpose is to determine whether the plaintiff
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belongs to a class of person to whom the law grants a cause of action
asserted in the lawsuit, which I believe that he is part of that class.
The exception assumes that the petition states [a valid] cause of action
and questions whether the petitioner in a particular case has a legal
interest in the subject matter of the litigation which I believe he does. .
..

So, I believe that [Owens’] argument is correct that [the State’s]
exception of no right of action is not correct. But if you would like to
submit some authority to me, I would be glad to consider it.

Subsequently, in the written reasons for judgment, dated February 18, 2014, the

trial court stated, “Based upon the pleadings, the Court does not find the plaintiff

has stated a cause of action to recover for an intentional tort to the exclusive

remedy provided in worker’s compensation.” The trial court wrote that plaintiff

“is required to set forth facts which could possibly lead to a legal conclusion that

the employer acted in a manner so certain to cause injury that intent is imputed,”

and cited the case of Maddie v. Plastic Supply and Fabrication, Inc., 434 So.2d

158 (La.App. 5 Cir.), writ denied, 435 So.2d 445 (La.1983). The issue in Maddie

was whether an employee’s petition stated a cause of action, not whether the

employee had a right of action.

After citing Maddie, the trial court asserted that Owens “failed to plead

specific facts that the defendant either (1) consciously desired the physical result of

his act or (2) knew that the result was substantially certain to follow from his

conduct.” Based on this analysis, the trial court then found that Owens did not

have a right of action to proceed in tort and his exclusive remedy is workers’

compensation citing Lloyd v. Shady Lake Nursing Home, Inc., 47,025 (La.App. 2

Cir. 5/9/12), 92 So.3d 560, writ denied, 12-1318 (La. 9/28/12), 98 So.3d 8441 and

1
In Lloyd, 92 So.3d 560, a widower and children brought a wrongful death action against
the decedent wife’s former employer, a nursing home. In further proceedings, employer filed an
exception of no right of action as a supplement to its declinatory exception of lack of subject
matter jurisdiction. After restating footnote 2 from Brewer, the second circuit stated, “the
exception of lack of subject matter jurisdiction is an appropriate procedural vehicle for
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Lloyd’s citation to footnote 2 in Brewton v. Underwriters Ins. Co., 02-2852 (La.

6/27/03), 848 So.2d 5862.

Owens asserts the conflict between the trial court’s statements after the

January 13, 2014 hearing, the February 18, 2014 written reasons for judgment, and

the final judgment indicate that the trial court apparently erred in applying the no

cause of action standard to that of the singularly pled no right of action exception.3

The State counters that Owens is incorrect because it cited Lloyd and Brewton to

the trial court for the proposition that an exception of no right of action is a proper

vehicle to use in dismissing Owens’ suit.

The State contends that Lloyd and Brewton can be interpreted to endorse an

employer’s use of an exception of no right of action to dismiss an employee’s suit

against it because the employee cannot sufficiently prove that the employer

committed an intentional act. Our reading of Lloyd and footnote two in Brewton is

that an exception of no right of action can to be used to dismiss a suit when the

determining whether the plaintiffs’ exclusive remedy is workers’ compensation.” Lloyd, 92
So.3d at 565.
2
In Brewton, 848 So.2d 586, a husband and wife had the same employer. The wife, a
passenger in a vehicle driven by her husband, was injured in a single-vehicle accident. She
brought a tort suit against her husband, and, among others, she and her husband’s employer. The
wife subsequently filed motion in limine seeking a judgment from the trial court declaring that
the defendants were not entitled to a jury trial on the issue of whether she was in the course and
scope of her employment. The supreme court, in footnote 2, stated that the matter presented
before it was

in a somewhat unusual posture because Mrs. Brewton filed a motion in limine
seeking to preclude the jury from hearing issues surrounding her employment
status. Typically, the underlying issue of whether an accident is work related is
resolved in a pre-trial motion or exception, such as an exception of no right of
action or lack of subject matter jurisdiction or a motion for summary judgment.
Any of these pre-trial methods would have resolved the issue. However, because
the parties involved elected not to use a more appropriate procedural vehicle, this
case is limited to its procedural facts.

Brewton, 848 So.2d at 589-90, fn. 2.
3
We note that the singular pleading of an exception of no right by a defendant does not
preclude the trial court from analyzing whether a plaintiff’s petition states a cause of action.
This is so because the trial court is free to notice no right of action by a plaintiff or a petition’s
failure to state a cause of action on its own motion. La.Code Civ.P. art. 927 (B).
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issue is whether the plaintiff is an employee in the course and scope of

employment as specifically stated in Brewton and restated in Lloyd. However, this

reading of Lloyd and Brewton is limited to that particular set of circumstances in

Brewton and should not be expanded, as the State suggests, for the premise that a

defendant can urge an exception of no right of action in an attempt to dismiss an a

suit because that defendant may not be able to stand in judgment in a particular

case due to what a plaintiff can or cannot prove.

The State is attempting to present a defense via an exception of no right of

action. This is expressly prohibited. See Buller v. Falcon Rice Mill, Inc., p. 5

(La.App. 3 Cir. 11/2/95), 664 So.2d 509; Babineaux v. Pernie-Bailey Drilling Co.,

261 La. 1080, 262 So.2d 328 (1972); Marquis v. Cantu, 371 So.2d 1292 (La.App.

3 Cir.1979). To reiterate, the applicable jurisprudence in this circuit states, “[t]he

exception of no right of action is not available to urge a defense to the effect that

plaintiff is without interest simply because defendants have a defense to the

action.” Guillory v. Nicklos Oil & Gas Co., 315 So.2d 878, 882 (La.App. 3

Cir.1975) (citing Alside Supply Company v. Ramsey, 306 So.2d 762 (La.App.4th

Cir. 1975); Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App.3rd Cir. (1967). See

also Livings v. Reliance Ins. Co., 525 So.2d 620 (La.App. 3 Cir.1988).

DECREE:

James Michael Owens avers that the trial court erred as a matter of law by

dismissing his suit, with prejudice, against his employer, the State of Louisiana, via

the State’s exception of no right of action. We find merit to Owens’s alleged error.

Accordingly, we reverse the trial court’s dismissal of Owens’ suit and remand the

case for further proceedings. We assess court costs in the amount of $2615.73 to

be paid by the State of Louisiana under La.R.S. 13:5112(A).

REVERSED AND REMANDED.
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