Viel Olivier v. Olivier Builders

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-570

VIEL OLIVIER

VERSUS

OLIVIER BUILDERS AND
LUBA WORKERS’ COMPENSATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF LAFAYETTE, NO. 06-03499
ADAM JOHNSON, WORKERS’ COMPENSATION JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and Shannnon J.
Gremillion, Judges.

AFFIRMED.

Michael B. Miller
Attorney at Law
Post Office Drawer 1630
Crowley, Louisiana 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Viel Olivier

Mark Ackal
Mark Ackal & Associates
110 East Kaliste Saloom Road, Suite 208
Post Office Box 52045
Lafayette, Louisiana 70505-2045
(337) 237-5500
COUNSEL FOR DEFENDANTS/APPELLEES:
Olivier Builders and
LUBA Workers’ Compensation

GENOVESE, Judge.

In this workers’ compensation case, Plaintiff/Claimant, Viel Olivier, appeals

the judgment of the Office of Workers’ Compensation (OWC) granting an

Exception of Res Judicata filed by Defendant/Employer, Olivier Builders, and its

third party administrator, LUBA Workers’ Compensation (collectively LUBA).

For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 2, 2006, Mr. Olivier filed a Disputed Claim for Compensation

against LUBA. A judgment was rendered on August 7, 2008, by the OWC

awarding Mr. Olivier workers’ compensation benefits. Both Mr. Olivier and

LUBA appealed the 2008 judgment. This court, in Viel Olivier v. Olivier Builders,

09-208 (La.App. 3 Cir. 9/9/09), 19 So.3d 573, affirmed in part, reversed in part,

amended in part, and rendered. Our supreme court denied writs. Olivier v. Olivier

Builders, 09-2189 (La. 12/11/09), 23 So.3d 918. By agreement of counsel, the

judgment of this court was amended to reduce the amount of Mr. Olivier’s weekly

indemnity benefit to the maximum amount authorized by statute.

On August 2, 2010, Mr. Olivier filed a Motion and Order for Penalties and

Attorney’s Fees, alleging that LUBA improperly calculated the amount due under

the judgment rendered by this court resulting in an underpayment of the amount

owed Mr. Olivier. A hearing on this motion was held on May 6, 2011, at which

time LUBA agreed to pay a $3,000.00 penalty and attorney fees of $3,500.00,

although the amount of the underlying judgment remained in dispute. A Consent

Judgment assessing said penalty and attorney fees was signed by the Workers’

Compensation Judge (WCJ) on June 6, 2011. There is no dispute that the Consent

Judgment was timely paid by LUBA.

On October 20, 2011, Mr. Olivier filed a second Motion and Order for

Penalties and Attorney’s Fees, contending that back due benefits were still owed,

and, given the untimely payment, he was “entitled to penalties as well as

reasonable attorney[] fees for the collection thereof.” In response, LUBA filed an

Exception of Res Judicata, asserting that in his second Motion and Order for

Penalties and Attorney’s Fees, Mr. Olivier seeks “the same penalties and [attorney]

fees already agreed to and paid by virtue of the Consent Judgment of [June 6,

2011].” A hearing on both Mr. Olivier’s motion and LUBA’s exception was held

on February 2, 2012. The WCJ provided oral reasons on March 14, 2012, and

signed a Judgment on Exception of Res Judicata granting LUBA’s exception on

March 22, 2012. Mr. Olivier has appealed that judgment.

ASSIGNMENTS OF ERROR

On appeal, Mr. Olivier presents the following for our review:

1. The workers’ compensation judge erred in granting the Exception
of Res Judicata.

2. It was error for the workers’ compensation judge to fail to award
penalties and attorney fees.

LAW AND DISCUSSION

Mr. Olivier first argues on appeal that the WCJ erroneously “placed the

burden upon [him] to provide proof that such a penalty was allowed under the

Workers’ Compensation Act. Therefore, the [WCJ] legally erred in failing to

require that the defendant carry the burden of proof on the exception.” We

disagree.

In support of his argument, Mr. Olivier relies on the following statement

made by the WCJ in his oral reasons: “There is no case law in support of a second

penalty and attorney fee pursuant to . . . [La.R.S 23:1201(G)].” As noted above,

the February 2, 2012 hearing addressed Mr. Olivier’s motion and LUBA’s
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exception. The WCJ, in his oral reasons for judgment, made the following

conclusory statement:

From the record[,] it appears that the second motion for
penalties and attorney[] fees stems from the defendant’s failure to pay
amounts due to Mr. Oliver from a final judgment of the Third Circuit
Court of [A]ppeal, which was the same subject matter of the first
motion for penalties and attorney[] fees. As noted again[,] the
defendants consented to and paid a [La.R.S. 23:1201(G)] penalty and
attorney fee. The plaintiff per the Louisiana Code of Civil Procedure
clearly had other remedies concerning the non[-]payment of amounts
due under the judgment. There is no case law in support of a second
penalty and attorney fee pursuant to [La.R.S. 23:1201(G)].
Accordingly, the [c]ourt grants the [E]xception of [R]es [J]udicata.

When read in context, it is clear that the statement relied upon by Mr. Olivier was

not made in connection with a discussion of burden of proof, nor did it somehow

relate to same. Rather, it was made as part of the WCJ’s discussion of the matters

before it, which included a Motion and Order for Penalties and Attorney’s Fees

along with an Exception of Res Judicata. For these reasons, we find no merit to

Mr. Olivier’s contention relative to the burden of proof. Having found no legal

error on the part of the WCJ, we shall next consider whether LUBA’s Exception of

Res Judicata was properly granted.

The doctrine of res judicata is found in La.R.S. 13:4231, which provides as

follows:

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

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(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.

Our Louisiana Supreme Court, in Burguieres v. Pollingue, 02-1385, p. 8

(La. 2/25/03), 843 So.2d 1049, 1053, set forth the following five requisite elements

for a matter to be considered res judicata:

(1) the judgment is valid; (2) the judgment is final; (3) the parties
are the same; (4) the cause or causes of action asserted in the
second suit existed at the time of final judgment in the first
litigation; and (5) the cause or causes of action asserted in the
second suit arose out of the transaction or occurrence that was the
subject matter of the first litigation.

In the present case, only one of the Burguieres elements is in dispute

between the parties. Mr. Olivier’s argument relates to the fifth element as he posits

the relevant inquiry as: “What is the transaction or occurrence that is the subject

matter of this Motion [and Order] for Penalties and Attorney’s Fees?” It is

Mr. Olivier’s position that the answer “is not the amount due under the judgment.”

Rather, “[t]he failure to timely pay the judgment after the May 6, 2011 Consent

Judgment is the occurrence allowing a penalty.” We disagree.

The failure of an employer to timely satisfy a judgment results in the

imposition of a penalty pursuant to La.R.S. 23:1201(G), which provides as follows:

If any award payable under the terms of a final, nonappealable
judgment is not paid within thirty days after it becomes due, there
shall be added to such award an amount equal to twenty-four percent
thereof or one hundred dollars per day together with reasonable
attorney fees, for each calendar day after thirty days it remains unpaid,
whichever is greater, which shall be paid at the same time as, and in
addition to, such award, unless such nonpayment results from
conditions over which the employer had no control. No amount paid
as a penalty under this Subsection shall be included in any formula
utilized to establish premium rates for workers’ compensation
insurance. The total one hundred dollar per calendar day penalty
provided for in this Subsection shall not exceed three thousand dollars
in the aggregate.

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LUBA conceded that it underpaid the final judgment awarding Mr. Olivier

worker’s compensation benefits. This concession was made at the hearing on

Mr. Olivier’s first Motion and Order for Penalties and Attorney’s Fees. Although

uncertainty remained as to the amount of the underlying judgment, LUBA

acknowledged the underpayment, and it agreed to pay a penalty of $3,000.00 and

$3,500.00 in attorney fees in accordance with La.R.S. 23:1201(G). This agreement

was memorialized in a Consent Judgment, and it is undisputed that the total

payment of the penalty and attorney fees in the aggregate of $6,500.00 was made.

When Mr. Olivier was not subsequently paid the amount of workers’

compensation benefits that he calculated as still being due him from the judgment,

he filed his second Motion and Order for Penalties and Attorney’s Fees, again in

accordance with La.R.S. 23:1201(G). However, in so doing, he sought a second

penalty and attorney fee award for the underpayment of the same underlying

judgment awarding workers’ compensation benefits. His effort to bifurcate the

underpayment into two separate occurrences, “pre” and “post” Consent Judgment,

is unpersuasive. There is but one underlying judgment that awarded Mr. Olivier

workers’ compensation benefits. That judgment was not timely paid in full. That

failure to pay resulted in a maximum penalty of $3,000.00 and subjected LUBA to

$3,500.00 in attorney fees. La.R.S. 23:1201(G). The unique circumstance that

resulted when the maximum penalty and attorney fee award was paid before a

determination was even had on the correct calculation and amount of the

underlying judgment does not change the result. Regardless of whether LUBA

consented to and paid the penalty and attorney fee in May 2011, Mr. Olivier would

still only be entitled to an award of one penalty and attorney fees pursuant to the

statute, in addition to the remaining amount ultimately determined to be due on the

underlying judgment.
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Thus, we agree with the WCJ who reasoned, as follows:

It’s important to note on August 4, 2010[,] there was a previous
motion for penalties and attorney’s fees filed on behalf of Mr. Olivier
alleging that the defendant failed to pay the judgment in full. On June
6, 2011[,] this [c]ourt signed a [C]onsent [J]udgment ordering
defendants to pay a Three Thousand [Dollar] penalty and attorney fee
in the amount of Three Thousand, Five Hundred Dollars.

The fact that LUBA did not pay the underlying judgment in full after the

May 6, 2011 Consent Judgment (which only addressed penalties and attorney fees)

is irrelevant, does not constitute another occurrence, and cannot result in the

imposition of a second La.R.S. 23:1201(G) penalty. The cause of action asserted

by Mr. Olivier in his second Motion and Order for Penalties and Attorney’s Fees

arises out of the same transaction or occurrence that was the subject matter of his

first Motion and Order for Penalties and Attorney’s Fees since they both sought

La.R.S. 23:1201(G) penalties and attorney fees for LUBA’s untimely payment of

the same underlying judgment. As such, it is barred under the doctrine of res

judicata. Therefore, we find no manifest error in the judgment of the WCJ

granting LUBA’s Exception of Res Judicata.1

Mr. Olivier also asserts that the WCJ erred in failing to award him penalties

and attorney fees. As discussed, Mr. Olivier’s Motion and Order for Penalties and

Attorney’s Fees and LUBA’s Exception of Res Judicata were heard

simultaneously. However, after it found merit to the exception, the WCJ did not

render judgment on Mr. Olivier’s claim for penalties and attorney fees. Thus,

1
The standard of review of a ruling on an exception of res judicata is
manifest error when the exception is raised before the case is submitted and
evidence is received from both sides. Floyd v. City of Bossier City, 38,187
(La.App.2d Cir. 3/5/04), 867 So.2d 993; Medicus v. Scott, 32,326 (La.App.2d Cir.
9/22/99), 744 So.2d 192.

Flanigan v. City of Shreveport, 45,459, p. 4 (La.App. 2 Cir. 10/27/10), 50 So.3d 938, 942.

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Mr. Olivier’s appeal is taken from a Judgment on Exception of Res Judicata, and

his claim of penalties and attorney fees is not before this court on appeal.

Finally, given our conclusions herein, we find that Mr. Oliver’s request for

an award of attorney fees relative to the instant appeal is unwarranted.

Accordingly, we decline to award same.

DECREE

The judgment of the Office of Workers’ Compensation granting the

Exception of Res Judicata in favor of Defendant/Employer, Olivier Builders, and

its third party administrator, LUBA Workers’ Compensation, is affirmed. All costs

of this proceeding are taxed to Plaintiff/Claimant, Viel Olivier.

AFFIRMED.

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