Pamela Metoyer v. Roy O. Martin, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1540

PAMELA METOYER

VERSUS

ROY O. MARTIN, INC.

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2
PARISH OF RAPIDES, NO. 01-04930
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

**********

ON REHEARING

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, Michael G.
Sullivan, and J. David Painter, Judges.

Amy, J., dissents and assigns reasons.

Sullivan J., dissents from the reinstatement of the award of attorney fees,
subscribing to this court’s analysis of that issue on original hearing.

REHEARING GRANTED; JUDGMENT REINSTATED IN PART.

John Fayne Wilkes, III
P. O. Box 4305
Lafayette, LA 70502-4305
Counsel for: Defendant/Appellant
Roy O. Martin Lumber Co., Inc.

George Arthur Flournoy
P. O. Box 1270
Alexandria, LA 71309-1270
Counsel for: Plaintiff/Appellee
Pamela A. Metoyer

PAINTER, Judge.

This case comes before us pursuant to the Plaintiff’s Petition for Rehearing

regarding this court’s rulings concerning the exception of res judicata and the award

of multiple attorney’s fees. Upon reconsideration, we find merit in the petition and

grant a rehearing.

RES JUDICATA

Ms. Metoyer asserts that this court erred in granting Martco’s exception of res

judicata. We agree.

By its exception, Martco contends that Ms. Metoyer’s claims for incorrect and

untimely payments in January, June, and July 1999 are barred by res judicata because

they were the subject of a judgment rendered in August 1999. Ms. Metoyer asserts

that the Judgment of Dismissal rendered in August 1999 under docket number 99-

0549 addressed only Martco’s first untimely payment of benefits for the period from

December 27, 1998 through January 3, 1999, and that other incorrect or untimely

payments were not concluded by that judgment. She alleges that additional incorrect

or untimely payments were made for the period of January 4, 1999 through January

10, 1999, which paid only five days compensation, and for June 26, 1999 through

July 2, 1999, which was made six days late.

La.R.S.13:4231 provides with regard to res judicata that:

Except as otherwise provided by law, a valid and final judgment
is conclusive between the same parties, except on appeal or other direct
review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the transaction or
occurrence that is the subject matter of the litigation are extinguished
and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the litigation are

1

extinguished and the judgment bars a subsequent action on those causes
of action.

(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with respect to any
issue actually litigated and determined if its determination was essential
to that judgment.

The first circuit in Lee v. Twin Bros. Marine Corp.,03-2034, pp. 4-5 (La.App.

1 Cir. 9/17/04), ___ So.2d ___, explained the application of the doctrine of res

judicata:

The purpose of res judicata is to promote judicial efficiency and
final resolution of disputes by preventing needless relitigation. Avenue
Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077,
1079. The burden of proof is upon the pleader to establish the essential
facts to sustain the plea of res judicata. Diamond B. Const. Co. v. Dept.
of Trans & Dev., 02-0573, p. 8 (La.App. 1st. Cir.2/14/03), 845 So.2d
429, 435. The doctrine of res judicata is stricti juris and should be
rejected when doubt exists as to whether a party's substantive rights
have actually been previously addressed and finally resolved.
Domingue ex rel. Domingue v. Allied Discount Tire and Brake, Inc.,
2002-1338 (La.App. 1st Cir.5/9/03), 849 So.2d 690, 695, writ denied,
2003-1605 (La.10/3/03), 855 So.2d 320. A final judgment has the
authority of a thing adjudged only as to those issues presented in the
pleadings and conclusively adjudicated by the court. Ins. Associates,
Inc. v. Francis Camel Const., 95-1955, p. 3 (La.App. 1st Cir.5/10/96),
673 So.2d 687, 689. Identification of issues actually litigated shall be
determined not solely from the pleadings but also by examining the
entire record in the first suit. Ebey v. Harvill, 26,373, p. 3 (La.App. 2nd
Cir.12/7/94), 647 So.2d 461, 464.

Further, as noted by this court in Prudhomme v. Iberville Insulations, 93-778,

p. 4 (La.App. 3 Cir. 3/2/94),633 So.2d 380, 382, the doctrine of res judicata must be

applied to workers’ compensation “in light of the rule that the Act must be construed

liberally in favor of the employee.”

Our review of the trial record of docket number 99-0549 convinces us that the

only matters concluded by the judgments rendered under that docket number were

Martco’s first untimely payment of benefit for the period from December 27, 1998

through January 3, 1999 and the amount to be awarded in attorney’s fees for that

2

failure to pay timely. Accordingly, we find that the only issue barred by res judicata

is the late payment of benefits for the period from December 27, 1998 through

January 3, 1999. As a result, we reinstate the trial court’s judgment awarding

penalties and attorney’s fees for the periods of January 4, 1999 through January 10,

1999 and June 26, 1999 through July 2, 1999.

Alternatively, Martco argues that even if we find that Ms. Metoyer’s claims are

not barred by res judicata, she improperly expanded the pleadings to include the

claims for incorrect or untimely payments made for the periods of January 4, 1999

through January 10, 1999 and June 26, 1999 through July 2, 1999. Martco asserts

that in answers to interrogatories Ms. Metoyer indicated that incorrect or untimely

payments during 1999 were not at issue, that Ms. Metoyer was not given permission

to amend her pleadings and that her 2001 disputed compensation claim form asserts

only failure to authorize medical treatments as the basis for that claim. We find these

arguments to be unfounded.

In Johnson v. Louisiana Container Co., 02-382 (La.App. 3 Cir. 10/2/02), 834

So.2d 1052, 1062, writ denied, 02-3099 (La. 5/9/03), 843 So.2d 394, the employer

asserted that the employees’ benefit calculation dispute should be limited to the

period given in answer to interrogatories. This court refused to limit the scope of the

litigation to that period, stating: “[I]t is within the trial court’s discretion to admit or

disallow evidence subject to an objection based upon the scope of the issues and

pleadings. Furthermore, it is within the trial court’s discretion to determine whether

evidence is encompassed by the general issues raised in the pleadings.” Id. at 1062

(citation omitted).

An examination of the record shows that Martco is incorrect in asserting that

Ms. Metoyer’s claim form advanced only a claim for failure to authorize medical

3

treatments. The July 11, 2001 disputed claim form reveals that Ms. Metoyer

indicated both failure to authorize medical treatment and “other,” which specifically

includes non-payment or incorrect payment of indemnity benefits. Additionally, in

its pre-trial statement, Martco listed non-payment or incorrect payment of disability

benefits among the issues to be litigated. Accordingly, Martco cannot claim that they

were surprised or unduly burdened by Ms. Metoyer’s claims of incorrect or untimely

payments. We find no abuse of discretion in the admission of evidence with regard

to these matters.

ATTORNEY’S FEES

The Plaintiff urges that this court was incorrect in finding that La.R.S.

23:1201(J) may be applied retroactively. We agree.

“In the absence of contrary legislative expression, substantive laws apply

prospectively only. Procedural and interpretative laws apply both prospectively and

retroactively, unless there is a legislative expression to the contrary.” La.Civ.Code

art. 6. The Louisiana Supreme Court in Sawicki v. K/S Stavanger Prince, 01-0528,

p. 8 (La. 12/7/01), 802 So.2d 598, 603, explained that:

[S]ubstantive laws are laws that impose new duties, obligations or
responsibilities upon parties, or laws that establish new rules, rights and
duties or change existing ones; procedural laws are those which
prescribe a method for enforcing a substantive right and relate to the
form of the proceeding or the operation of the laws; and interpretative
laws are those which clarify the meaning of a statute and are deemed to
relate back to the time that the law was originally enacted.

La.R.S. 23:1201(J) changes existing rights. Therefore, we find that it is

substantive. Additionally, this court has previously held that La.R.S. 23:1201(J) is

a substantive addition to the statute and, therefore, does not apply retrospectively so

as to deny multiple awards of attorney’s fees to cases which occurred before it was

passed. In Smith v. Roy O. Martin Lumber Co., 03-1441, pp. 12-13 (La.App. 3 Cir.

4

4/14/04), 871 So.2d 661, 670, writ denied, 04-1311 (La. 9/24/04), 882 So.2d 1144,

the court explained the interpretation of the provision:

The Louisiana Supreme Court in Fontenot v. Reddell Vidrine
Water Dist., 02-439, 02-442, 02-478 (La.1/14/03), 836 So.2d 14, found
La.R.S. 23:1201(F) provides multiple penalties and attorney fees for
multiple violations of compensation and medical benefits claims.

The Legislature subsequently added subsection J to La.R.S.
23:1201, effective July 3, 2003, which provides in pertinent part as
follows:

J. Notwithstanding the fact that more than one violation in
this section which provides for an award of attorney fees
may be applicable, only one reasonable attorney fee may be
awarded against the employer or insurer in connection with
any hearing on the merits of any disputed claim filed
pursuant to this Section . . .

Martco argues the addition of subsection J should be applied
retroactively and only one attorney fee award is allowable. However, in
Gay v. Georgia Pacific Corp., 32,653 (La.App. 2 Cir. 12/22/99), 754
So.2d 1101, it was held the provisions of the statute in effect at the time
of the withholding of benefits control the award of penalties and
attorney fees. See also Skipper v. Acadian Oaks Hosp., 00-67 (La.App.
3 Cir. 5/3/00), 762 So.2d 122. Moreover, the enactment of Subsection
J changes the law and thus has substantive effect. La.Civ.Code art. 6
provides that substantive laws apply prospectively only and cannot be
given retroactive effect in the absence of contrary legislative expression.
Since the denial of benefits and failure to pay medical expenses occurred
prior to the enactment of subsection J, the WCJ did not err in making
multiple awards of attorney fees.

Therefore, we find that La.R.S. 23:1201(J) has no effect on the awards of

attorney’s fees made in this case.

Martco has disputed the awards as unwarranted and excessive. The workers’

compensation judge outlined his reasons for the awards made in his twenty-five pages

of oral reasons for judgment. He has thoroughly explained the reasoning behind each

award. In the light of the record herein, as well as the reasons given by the workers’

compensation judge, we find that the court had a reasonable basis for concluding that

the claim was not reasonably controverted. See Cormier v. Louisiana Southwest

5

Scrap & Salvage, 04-321 (La.App. 3 Cir. 12/1/04), 888 So.2d 1117. Further,“[a]

WCJ has great discretion in the award of attorney fees and penalties, and a decision

concerning the award of attorney fees will not be disturbed absent an abuse of

discretion.” Harvey v. B E & K Const., 33,475, p. 3 (La.App. 2 Cir. 8/23/00), 770

So.2d 819, 822. “There is no requirement that the trial court hear evidence

concerning the time spent or the hourly rates charged to make an award of attorney

fees since the record will reflect much of the services rendered.” Id. However,

La.R.S. 23:1201(F) requires that awards of attorney’s fees be reasonable. “[F]actors

to be considered in imposition of attorney fees in workers’ compensation cases

include the degree of skill and work involved in the case, the amount of the claim, the

amount recovered, and the amount of time devoted to the case.” Id. The record

herein numbers seven volumes and shows evidence of the intensely contested claim

before the court from January 1999 through the present. The trial court noted that it

reviewed over ten thousand pages of documents in connection with the claim. The

documents of record show a high degree of skill and a large amount of work devoted

to this case by Plaintiff’s counsel. Plaintiff’s attorney has been successful in urging

most of the large number of complex claims made and in making a substantial

recovery on the part of his client, in the face of considerable opposition from the

employer. We find the award of attorney’s fees, as outlined in the reasons for

judgment to be justified and reasonable. Therefore, we reinstate the trial court’s

award of attorney’s fees.

CONCLUSION

We grant the application for rehearing and reinstate the trial court’s judgment

awarding penalties and attorney’s fees for the periods of January 4, 1999 through

6

January 10, 1999 and June 26, 1999 through July 2, 1999 and its award of attorney’s

fees.

REHEARING GRANTED; JUDGMENT REINSTATED IN PART.

7

NUMBER 03-1540

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

PAMELA METOYER

VERSUS

ROY O. MARTIN, INC.

AMY, J., dissenting.

I respectfully dissent from the majority opinion. With regard to the res judicata

issue, I find no error in the trial court’s decision to maintain the exception. Insofar

as they are relevant to the question of res judicata, La.R.S. 23:1201(F) and (J) were

enacted subsequent to the conduct for which penalties and attorney’s fees were

awarded. However, La.R.S. 13:4231 was in effect at the time of the conduct at issue.

Subsection (1) of that statute indicates that “all causes of action existing at the time

of final judgment arising out of the transaction or occurrence that is the subject matter

of the litigation are extinguished and merged in the judgment.” See also La.Code

Civ.P. art. 425(A).

In Jackson v. Iberia Parish Gov’t, 98-1810, p. 9 (La. 4/16/99), 732 So.2d 517,

524, the Louisiana Supreme Court discussed the application of La.R.S. 13:4231 in the

context of a workers’ compensation suit, noting that “inherent in the concept of res

judicata is the principle that a party had the opportunity to raise a claim in the first

adjudication, but failed to do so.” Furthermore, I find it significant that the claims for

penalties and attorney’s fees are not ones over which the workers’ compensation

judge was required to exercise continuing jurisdiction due to the claimant’s disability

having changed. See La.R.S. 23:1310.8; Jackson, 732 So.2d 517. Rather, the claims

were ones that could have been raised at the first hearing on the matter. Accordingly,

I find that the exception of res judicata was properly maintained.

With regard to the attorney’s fees, I conclude that the amendment to La.R.S.

23:1201(J) is interpretive in nature and, therefore, must be applied retroactively. In

Fontenot v. Reddell Vidrine Water Dist., 02-439 (La. 1/14/03), 836 So.2d 14, the

Louisiana Supreme Court interpreted the language of La.R.S. 23:1201(F) to permit

the award of multiple penalties. The interpretation of the language in Subsection (F)

has been found to permit the award of multiple attorney’s fees under the same

subsection. See Leonard v. James Indus. Constructors, 03-40 (La.App. 1 Cir.

5/14/04), 879 So.2d 724, writ denied, 04-1447 (La. 9/24/04), 882 So.2d 1139; Smith

v. Roy O. Martin Lumber Co., 03-1441 (La.App. 3 Cir. 4/14/04), 871 So.2d 661, writ

denied, 04-1311 (La. 9/24/04), 882 So.2d 1144.

In my opinion, the enactment of Subsection J, which now clearly permits the

recovery of only a single award for attorney’s fees, is correctly viewed as interpretive.

Therefore, it must be applied retroactively. I reach this conclusion as the amendment

to the statute became effective in August 2003, only months after the supreme court’s

decision in Fontenot, which was released in January 2003.

In St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (La.1992), the

Louisiana Supreme Court considered legislation enacted subsequent to supreme court

decisions interpreting original legislation in a contrary way. Although subsequently

enacted legislation was argued to be interpretive and in response to what was alleged

to have been erroneous jurisprudence, the supreme court found no merit in the

argument, concluding that the subsequent legislation in that case was substantive in

nature. In doing so, the supreme court explained that among the considerations

leading it to find that the amended legislation was a substantive change in the law,

was its determination that the amendment was not a prompt response to the

jurisprudence at issue. Instead, the amendment came two years after the final

supreme court decision on the subject. Furthermore, the jurisprudence had been

developing for a period of ten years. The supreme court also noted that the legislation

did not overturn a single decision of the court, but instead, overturned a developing

line of cases and thus, could be considered to have overturned settled law.

Although the supreme court in St. Paul determined that the legislation before

it was substantive in nature, in my opinion, the reasoning of St. Paul, applied to the

facts of this case, indicates that the legislation now under consideration is

interpretive. In the present case, Fontenot was rendered in January 2003 and the

legislation at issue approved in July 2003. It became effective in August 2003.

Furthermore, insofar as the award of multiple attorney’s fees is concerned, Fontenot

was not at the end of a developing line of jurisprudence so as to constitute settled law

on the topic of whether multiple attorney’s fees were possible. In the face of these

indicators, it is my view that the legislation was enacted in response to Fontenot and

was intended to establish the legislature’s original intentions. Accordingly, in my

opinion, the enactment of La.R.S. 23:1201(J) is properly viewed as interpretive and

must, therefore, be given retroactive application.

For these reasons, I respectfully dissent.