Sylvester Harris v. Olivier's Contractors

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 14-765

SYLVESTER HARRIS

VERSUS

OLIVIER’S CONTRACTORS, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 12-C-1677-A
HONORABLE JAMES PAUL DOHERTY JR., DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

AFFIRMED.

Amy, J., concurs in part, dissents in part, and assigns reasons.

Frank Edward Barber
116 Field St.
New Iberia, LA 70560-4487
(337) 256-8370
COUNSEL FOR DEFENDANTS/APPELLANTS:
Jason Olivier
Olivier’s Contractors

Craig Alan Davis
111 Mercury
Lafayette, LA 70503
(337) 231-5351
COUNSEL FOR PLAINTIFF/APPELLEE:
Sylvester Harris

EZELL, Judge.

Sylvester Harris filed suit for damages in district court pursuant to La.R.S.

23:1032.1 asserting that his employer neither had workers’ compensation

insurance nor was self-insured, and failed to pay a workers’ compensation

judgment for sixty days after it was final. Jason Olivier d/b/a Olivier’s Contractors

(hereinafter collectively referred to as Mr. Olivier) appealed the trial court

judgment which awarded $205,547.90 in damages to Mr. Harris.

FACTS

Mr. Harris was employed as a “jack man” in 2009 by a business that raised

houses to higher elevations. During that time many houses were raised due to

hurricane standards. On March 13, 2009, Mr. Harris placed a shimmy underneath

a house when the jack bled out and an I-beam fell, smashing his left hand. After

releasing his hand, Mr. Harris was transported to Abbeville General Hospital.

Subsequently, he was transferred to Our Lady of Lourdes Regional Medical Center

where an orthopedic surgeon performed surgery on his hand. For the next five to

six months, Mr. Harris received physical therapy on his hand.

A default judgment awarding temporary total disability benefits, medical

expenses and penalties and attorney fees against Mr. Olivier was confirmed in the

Office of Workers’ Compensation on January 9, 2012. When the judgment was

not paid, Mr. Harris filed the present suit pursuant to La.R.S. 23:1032.1 against Mr.

Olivier and Terry Engeron on April 2, 2012. After a preliminary default was

entered against Mr. Olivier, Mr. Olivier answered the suit. He then filed

peremptory exceptions of prescription, no cause of action, and no right of action on

December 12, 2013, the day of trial. Ruling on the exceptions was deferred until

after trial. The trial court found in favor of Mr. Harris and against Mr. Olivier and

awarded him $125,000.00 in general damages, $25,947.90 for medical expenses,

and $54,600.00 for lost wages. Mr. Olivier then filed the present appeal.

NEGLIGENCE

In his first assignment of error, Mr. Olivier claims that the trial court erred

relieving Mr. Harris of the burden of establishing that Mr. Olivier was negligent in

causing Mr. Harris’s injuries. Mr. Olivier argues that La.R.S. 23:1032.1 requires

that a petitioner prove all of the elements of a tort action, which includes

establishing that any injuries were caused by the negligence of the defendant.

Louisiana Revised Statutes 23:1032.1 provides that any employee has a right

to sue a “direct employer for all legal damages” when the employer:

fails to secure workers’ compensation insurance or proper certification
of self-insured status pursuant to R.S. 23:1168, and fails to pay a final
judgment for sixty days after the parties have exhausted their rights of
appeal and no other insurance or self-insurance policy or contract of
workers’ compensation coverage has paid the benefits due under this
Chapter.

There is no reported case law on the application of La.R.S. 23:1032.1 except

for two cases from this court that simply refer to La.R.S. 23:1032.1 as permitting

an employee to assert a claim in tort but which do not address the application of

La.R.S. 23:1032.1. See Hector v. Mo-Dad Env’t. Serv., LLC 13-1184 (La.App. 3

Cir. 3/5/14), 134 So.3d 133, 139 n.1; and Eads v. Chartis Specialty Ins. Co., 13-

224 (La.App. 3 Cir. 2/26/14), 133 So.3d 722. This case presents a res nova issue.

Interpretation of this statute begins, as it must, with the
language of the statute itself. David v. Our Lady of the Lake Hosp.,
Inc., 02–2675, p. 11 (La.7/2/03), 849 So.2d 38, 46; Touchard v.
Williams, 617 So.2d 885, 888 (La.1993). When a law is clear and
unambiguous and its application does not lead to absurd consequences,
it shall be applied as written, with no further interpretation made in
search of the legislative intent. La. C.C. art. 9; La. R.S. 1:4. When the
wording of a section of the revised statutes “is clear and free of
ambiguity, the letter of it shall not be disregarded under the pretext of
pursuing its spirit.” La. R.S. 1:4. In interpreting the Workers’

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Compensation Act, courts must be mindful of the basic history and
policy of the compensation movement, which includes the provision
of social insurance to compensate victims of industrial accidents.
Brown v. Adair, 02–2028, p. 5 (La.4/9/03), 846 So.2d 687, 690;
Roberts v. Sewerage & Water Bd. of New Orleans, 92–2048, p. 7
(La.3/21/94), 634 So.2d 341, 345.

Trahan v. Coca Cola Bottling Co. United, Inc., 04-100, pp. 6-7 (La. 3/2/05), 894

So.2d 1096, 1102. In reviewing a question of law, the appellate court must simply

decide whether the trial court’s decision was legally correct. Harruf v. King, 13-

940 (La.App. 3 Cir. 5/14/14), 139 So.3d 1062.

We first observe that the title of La.R.S. 23:1032.1 is “Failure of employer

to secure payment; penalties.” We recognize that headings to sections are given

for convenient reference and do not constitute part of the law, but it is obvious that

the legislature intended that this be a penalty section. La.R.S. 1:13(A). We must

keep in mind that under the scheme of the Workers’ Compensation Act, an

employee losses his right to full damages for his injury and instead receives

compensation measured as a percentage of wages while the employer surrenders

the immunity against liability which he would otherwise enjoy when he is not at

fault. Gagnard v. Baldridge, 612 So.2d 732 (La.1993). Penalties in workers’

compensation cases “are imposed to deter indifference and undesirable conduct by

employers and their insurers toward injured workers.” Trahan, 894 So.2d at 1108.

It is obvious in enacting La.R.S. 23:1032.1, the legislature intended to

punish employers who failed to secure workers’ compensation insurance and failed

to pay a final judgment after all rights to appeal have been exhausted. Under these

circumstances, the employer has failed to secure insurance coverage as required by

La.R.S. 23:1168 and failed to pay a final judgment. The legislature has determined

that this is the most egregious conduct on the part of the employer. It would be

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ridiculous for an employee to establish the negligence of the employer when the

employee has already pursued his workers’ compensation action in the Office of

Workers’ Compensation, established his rights to compensation, and obtained a

judgment.

Louisiana Revised Statutes 23:1032.1 only requires that the employee prove:

(1) the direct employer failed to secure workers’ compensation insurance or proper

certification of self-insured status pursuant to La.R.S. 23:1168; and (2) the direct

employer failed to pay a final judgment for sixty days after the parties have

exhausted their rights of appeal and no other insurance or self-insurance policy or

contract of workers’ compensation coverage has paid benefits. At that point all the

employee has to establish in the trial court is the amount of any legal damages he

would be entitled to under tort law. This is the penalty an employer must face for

failure to secure insurance and pay a resulting workers’ compensation judgment.

We find no error in the trial court’s determination that Mr. Harris did not need to

establish that any negligence had occurred.

DIRECT EMPLOYER

Mr. Olivier argues that Mr. Harris did not prove that he was Mr. Harris’s

direct employer. Mr. Olivier argues that before the accident he sold the business to

Mr. Engeron. He claims the trial court erred in not granting his exception of no

right of action.

“The function of an exception of a no right of action is to determine whether

the plaintiff belongs to the class of persons to whom the law grants the cause of

action asserted in the suit.” Hood v. Cotter, 08-215, 08-237 p. 17 (La. 12/2/08), 5

So.3d 819, 829. Whether a plaintiff has a right to bring an action raises a question

of law which requires a de novo review. Eagle Pipe and Supply, Inc. v. Amerada

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Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289 (La. 10/25/11), 79

So.3d 246.

In order to prove an oral agreement to sell his business, which was valued

over $500.00, Mr. Olivier had to prove the contract by at least one witness and

other corroborating circumstances. La.Civ.Code art. 1846; Commercial Flooring

and Mini Blinds, Inc. v. Edenfield, 13-523 (La.App. 1 Cir. 2/14/14), 138 So.3d 30.

“A party may serve as his own witness and the ‘other corroborating circumstances’

may be general and need not prove every detail; however, the corroborating

circumstances that are required must come from a source other than the party

claiming the oral agreement.” Id. at 36.

Testimony at trial revealed that Mr. Olivier was working on Mr. Harris’s

mother’s house. During conversations at the mother’s house, Mr. Olivier learned

that Mr. Harris worked for a different company which also raised houses. A

couple of months later, Mr. Oliver called Mr. Harris and asked him to come work

for him. Mr. Harris went to work for him the next day. Mr. Harris was on the job

for two to three days when the accident occurred. Mr. Olivier agreed that he met

Mr. Harris at his mother’s house and later talked to Mr. Harris’s mother about Mr.

Harris. However, he denied that he called Mr. Harris and asked him to work for

him. Instead, Mr. Olivier claims that he relayed the information to the person he

sold the business to, Mr. Engeron.

Mr. Olivier testified that he initially sold the business to another man. This

sale was contingent on the buyer obtaining so many jobs. This buyer did not

succeed, so Mr. Olivier tried to sell it again by contacting Mr. Engeron. Pursuant

to his agreement with Mr. Engeron, Mr. Engeron was going to perform five jobs

and then pay Mr. Olivier $90,000.00 for the equipment. When Mr. Harris was

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injured, it was the third job Mr. Engeron had worked on since allegedly entering

into the agreement with Mr. Olivier.

Mr. Olivier testified that he gave advice to Mr. Engeron on how to perform

these jobs. He also did the initial meet and greet with the homeowner on the third

job. Mr. Olivier also gave Mr. Engeron advice on where he would place the

equipment needed to raise the house. Mr. Olivier testified that he did not receive

any money from these jobs.

Mr. Olivier’s own testimony was the only evidence he introduced to support

his argument that he sold his business to Mr. Engeron. Therefore, he failed to meet

his burden of proof. However, the trial court determined that Mr. Olivier and Mr.

Engeron entered into a contract to sell pursuant to La.Civ.Code art. 2623. We

agree with the trial court for the following reasons.

A contract to sell is “[a]n agreement whereby one party promises to sell and

the other promises to buy a thing at a later time, or upon the happening of a

condition, or upon performance of some obligation by either party[.]” Id. “Such a

contract does not transfer ownership of the property involved.” Hewitt v. Safeway

Ins. Co. of Louisiana, 01-115, p. 4 (La.App. 3 Cir. 6/6/01), 787 So.2d 1182, 1185.

Further, as noted by the trial court, Comment (c) to La.Civ.Code art. 2623 provides

that ownership and risk remain with the vendor in a contract to sell because a

contract to sell does not effect a transfer of ownership.

Mr. Olivier himself agreed that ownership of the equipment of the business

would not transfer until Mr. Engeron had completed five jobs. This appears to be

the same arrangement he had with the first buyer, which was never finalized.

Furthermore, the evidence strongly supports Mr. Harris’s testimony that Mr.

Olivier himself hired him. It was Mr. Harris’s impression that Mr. Engeron was

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the supervisor. There are receipts for two checks for $400.00 in evidence given to

Mr. Harris after the accident from Mr. Engeron. Cindy Harris, Mr. Harris’s wife,

testified that Mr. Engeron presented her with these checks as payment for salary

for two weeks. She testified that Mr. Engeron told her that Mr. Olivier told him to

give her those checks for her husband and that he was going to continue paying her

husband.

The trial court was correct in denying Mr. Olivier’s exception of no right of

action. The evidence establishes that Mr. Olivier was still Mr. Harris’s direct

employer at the time of the accident.

PRESCRIPTION

Mr. Olivier’s next assignment of error claims that Mr. Harris’s claim has

prescribed because it was filed more than one year after the accident. The petition

filed by Mr. Harris made no mention of a previously filed workers’ compensation

suit and its resulting judgment.

Generally, “prescription statutes ‘are strictly construed against prescription

and in favor of the obligation sought to be extinguished.’” Quinn v. Louisiana

Citizens Prop. Ins. Corp., 12-152 (La. 11/2/12), 118 So.3d 1011 (quoting Taranto

v. La. Citizens Prop. Ins. Co., 10-105, p. 5 (La. 3/15/11), 62 So.3d 721, 726).

Usually it is the party pleading prescription that bears the burden of proof at trial

on the exception; however, when the petition is prescribed on its face, the burden

shifts to the plaintiff to establish that his claim is not prescribed. Id.

The prescriptive period for a delictual action is one year. La.Civ.Code art.

3492. Because Mr. Harris’s claim for legal damages was filed more than one year

after the work injury, the action has prescribed on its face. However, La.R.S.

23:1032.1(A) permits a suit against an employer who has no insurance or

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certification of self-insured status and failed to pay a workers’ compensation

judgment for sixty days.

Pursuant to La.Code Civ.P. art. 931, evidence may be introduced to support

or controvert the exception of prescription when the grounds do not appear from

the petition. As permitted by La.Code Civ.P. art. 928, Mr. Olivier raised his

exception of prescription on the day of trial, so the trial court heard evidence

regarding the exception during the trial. In controverting Mr. Olivier’s exception

of prescription, Mr. Harris introduced a certified copy of the workers’

compensation judgment against Mr. Olivier, which was objected to by Mr. Olivier.

The trial court allowed this judgment to be introduced as a self-authenticating

domestic public document pursuant to La.Code Evid. art. 902(1).

On appeal, Mr. Oliver claims that this was error because the judgment was a

nullity pursuant to La.Code Civ.P. art. 2002(A)(2) because the petition was served

on his wife while they were separated and living apart. Mr. Harris argues that he

introduced evidence indicating that service was made on Jennifer Olivier who

identified herself as Mr. Olivier’s wife. Mr. Olivier agreed that he lived at the

residence where service was made but was not home all the time due to marital

difficulties. Mr. Olivier’s own testimony indicates that the parties reconciled and

were still together by the time of this trial. We find service of process at Mr.

Olivier’s domicile was proper pursuant to La.Code Civ.P. art. 1234.

Mr. Olivier also argued that the workers’ compensation judgment was not

relevant to the proceedings. The workers’ compensation judgment was necessary

and relevant for Mr. Harris to establish that he had obtained a judgment against Mr.

Olivier from the Office of Workers’ Compensation. The trial court properly

admitted the judgment.

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The judgment was signed on January 9, 2012. Mr. Harris filed the present

suit on April 2, 2012. This was after sixty days elapsed from the judgment but

well within the one-year prescriptive period provided by La.Civ.Code art. 3492.

Therefore, the trial court properly denied Mr. Olivier’s exception of prescription.

NO CAUSE OF ACTION

Mr. Olivier argues that Mr. Harris’s petition fails to state a cause of action

because there are no allegations linking the workers’ compensation action to the

present action. Furthermore, Mr. Olivier claims that there is no way to determine

that Mr. Harris is seeking recovery pursuant to La.R.S. 23:1032.1.

A cause of action in the context of a peremptory exception of no cause of

action “refers to the operative facts which give rise to the plaintiff’s right to

judicially assert an action against the defendant.” Maw Enters., L.L.C. v. City of

Marksville, 14-90, p. 6 (La. 9/3/14), ___ So.3d___, ___. “The purpose of the

peremptory exception of no cause of action is to test the legal sufficiency of the

plaintiff’s petition by determining whether the law affords a remedy on the facts

alleged in the petition.” Id. “The exception is triable on the face of the pleadings

and, for purposes of resolving the issues raised by the exception, the court must

presume that all well-pleaded facts in the petition are true. Id.

It is the mover who has the burden of proving that a petition fails to state a

cause of action. Id. Review of a lower court’s decision on an exception of no

cause of action is de novo. Id. The appellate must determine whether the petition

states any valid cause of action for relief when viewed in a light most favorable to

the plaintiff and with every doubt resolved in favor of the plaintiff. Id.

“Generally, under LA. C.C.P. art. 931, no evidence may be introduced to

support or controvert the exception of no cause of action.” Id. at ___. “However,

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an exception to this rule has been recognized by the jurisprudence, and a court may

consider evidence admitted without objection to enlarge the pleadings.” Id.

Mr. Olivier’s counsel did object to the introduction of the workers’

compensation judgment stating, “I don’t know what’s the relevancy, the worker’s

[sic] compensation judgment.” Counsel for Mr. Harris then explained that it was

to establish that Mr. Harris already sought relief in the Office of Workers’

Compensation and that it remains unpaid. The trial court then allowed the

judgment to be admitted into evidence.

As previously discussed, we do find that the judgment is relevant and

properly admitted to defeat Mr. Olivier’s exception of prescription during the

course of proceedings. While there was an objection as to the relevancy of the

judgment, no objection was made to the trial court’s consideration of the judgment

for purposes of determining the exception of no cause of action. Block v. Bernard,

Cassisa, Elliot & Davis, 04-1893 (La.App. 1 Cir. 11/4/05), 927 So.2d 339.

Furthermore, without objection, Mr. Olivier agreed during his testimony that Mr.

Harris had a workers’ compensation judgment against him which he brought to his

attorney.

Based on the petition, evidence, and testimony introduced at trial, we find

that the pleadings were enlarged such that the trial court was correct in denying Mr.

Olivier’s exception of no cause of action. We find that Mr. Harris stated a cause of

action for penalties under La.R.S. 23:1032.1.

JUDGMENT SILENT AS TO ONE DEFENDANT

Originally Mr. Harris sued both Mr. Olivier and Mr. Engeron in tort. Prior

to trial, counsel for Mr. Harris stated that he was not pursuing Mr. Engeron

because Mr. Harris was working for Mr. Olivier at the time of his injury. On

10

appeal, Mr. Olivier argues that a valid judgment cannot be rendered where a co-

defendant has not filed an answer nor had a default judgment taken against him.

Mr. Olivier claims that the trial court judgment does not dismiss Mr. Engeron nor

is there language certifying that the judgment is a final appealable judgment as

required by La.Code Civ.P. art. 1915.

“A judgment that determines the merits in whole or in part is a final

judgment.” La.Code Civ.P. art. 1841. Pursuant to La.Code Civ.P. art. 1841 “[a]

judgment is the determination of the rights of the parties in an action”, so that “[a]

judgment cannot determine rights or award relief to persons or entities who are not

parties to the litigation.” Minton v. Crawford, 98-478, p. 10 (La.App. 3 Cir.

10/7/98), 719 So.2d 743, 748 (first alteration in original).

Prior to trial, counsel for Mr. Harris related to the trial court that he was not

seeking any relief from Mr. Engeron. By not pursuing his action against Mr.

Engeron, Mr. Harris risked the fact that the trial court may have found, based on

the evidence, that Mr. Engeron was his employer at the time of the accident.

Under those circumstances, Mr. Harris would not be entitled to judgment granting

him relief against Mr. Engeron. This does not affect Mr. Olivier’s liability toward

Mr. Harris. As already confirmed by this court, the evidence established that Mr.

Olivier was Mr. Harris’s employer at the time of the accident. Therefore, the

judgment finding Mr. Olivier liable to Mr. Harris for legal damages was a proper

final judgment which granted Mr. Harris all the relief he asked for and not a partial

final judgment. La.Code Civ.P. art. 1915(A).

DAMAGES

In his final assignment of error, Mr. Olivier claims that the award of

damages was excessive. He argues that Mr. Harris was able to return to work

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making twice the money he did before the accident. Mr. Olivier also claims that

while Mr. Harris has some discomfort with his hand, he seems to have full use of

his hand. The trial court awarded $125,000.00 in general damages. Special

damages awarded included $25,947.90 for medical expenses and $54,200.00 for

loss of wages.

The trial court is given great discretion in its assessment of both general and

special damages. La.Civ.Code art. 2324.1; Monte v. State Farm Mut. Auto. Ins.

Co., 13-979 (La.App. 3 Cir. 5/21/14), 139 So.3d 1139, writ denied, 14-1289 (La.

9/26/14), ___ So.3d ___. A trial court’s decision as to the appropriate amount of

damages is entitled to great deference on review. Monte, 139 So.3d 1139.

Therefore, an appellate court should rarely disturb an award on review. Id.

“Special damages are those which theoretically may be determined with relative

certainty, including medical expenses and lost wages.” Id. at 1148. “An appellate

court, in reviewing a jury’s factual conclusions with regard to special damages,

must satisfy a two-step process based on the record as a whole: there must be no

reasonable factual basis for the trial court’s conclusions, and the finding must be

clearly wrong.” Id. “A general damage award cannot be fixed with pecuniary

exactitude.” Id. at 1150. “An appellate court may disturb a damages award only

after an articulated analysis of the facts discloses an abuse of discretion.” Id.

In awarding medical expenses, the trial court relied on the award in the

workers’ compensation judgment itself. Also, Mr. Olivier designated the record on

appeal and did not include the medical bills submitted by Mr. Harris, so based on

the evidence in the record before us, we find that trial court’s award for medical

expenses is proper.

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The trial court also relied on Mr. Harris’s testimony that he was making

$700.00 a week and he was out of work for one-and-half years, or seventy-eight

weeks, in awarding damages for loss of wages. We also find this award

appropriate.

Regarding general damages, again we have no medical records to review.

Mr. Harris testified that he was initially brought to Abbeville General Hospital

where it was determined that he needed to be transferred to Our Lady of Lourdes

Regional Medical Center due to the severity of the injury to his left hand. An

orthopedic surgeon operated on his hand. Mr. Harris explained that all his fingers

and his wrist were severely injured. He had to stay in the hospital for three days.

He then went to physical therapy for five to six months. Mr. Harris testified that

the therapy hurt worse than the initial accident.

Mr. Harris was unemployed for a year and half because he could not pick up

anything with his left hand. Mr. Harris was able to secure employment with

Moncla originally as a driller, with a promotion to a toolpusher by the time of trial.

His hand continued to bother him at the time of trial. He explained that his wrist is

weak and cold weather creates problems when he tries to open his hand. Mrs.

Harris confirmed that her husband continues to have problems with his hand

bothering him, especially when it is cold. Considering the testimony of the

Harrises, we find no abuse of discretion in the trial court’s award of $125,000.00 in

general damages.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

of this appeal are assessed to Jason Olivier d/b/a Olivier’s Contractors.

AFFIRMED.

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NUMBER 14-765

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

SYLVESTER HARRIS

VERSUS

OLIVIER’S CONTRACTORS, ET AL.

AMY, J., concurring in part and dissenting in part.

I agree with the majority’s affirmation of the rulings on the defendant’s

exceptions. However, I respectfully dissent from the opinion’s resolution of the

foundational issue of whether La.R.S. 23:1032.1 requires that an employee prove

all elements of a tort action. In this case, the element at issue is that of

fault/negligence. Affirming the trial court’s finding on this point, the majority

concludes that La.R.S. 23:1032.1 does not require demonstration of that element as

the statute is punitive in nature.

In my opinion, however, the actual penalty to the employer is the risk of

being “sue[d] . . . for all legal damages” which would eliminate the employer’s

protections under the workers’ compensation provisions and expose it to liability

for general damages as well as a less structured framework for loss of earnings,

etc. Simply put, I find that La.R.S. 23:1032.1 provides an avenue for an

employee’s recovery under a general tort cause of action. With that “penalty” in

mind, I do not see language otherwise within La.R.S. 23:1032.1, or in surrounding

statutory authority, that would eliminate a requirement as fundamental as a

plaintiff’s burden of proof in a suit for “legal damages.” For that reason, I find

error in the trial court’s determination that the plaintiff was not required to

establish negligence. I would reverse on that issue and remand for further

proceedings.