Estate of Shelli Belaire (Judge J. Ayo O/B/O G. M. A.) v. Crawfish Town USA

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-180 consolidated with 15-181

ESTATE OF SHELLIE BELAIRE (JUDGE J. AYO ON BEHALF OF
MINOR SON G.M.A.)

VERSUS

CRAWFISH TOWN USA, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 9
PARISH OF ST. MARTIN, NO. 14-02955 C/W 14-02958
ELIZABETH CLAIRE LANIER, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John
D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AMY, J., dissents and assigns reasons.

PICKETT, J., dissents for the reasons assigned by Judge Amy.

REVERSED AND REMANDED.

Jeffery F. Speer
Doucet & Speer
P. O. Drawer 4303
Lafayette, LA 70502-4303
Telephone: (337) 232-0405
COUNSEL FOR:
Plaintiff/Appellant - Estate of Shellie Belaire (Judge J. Ayo o/b/o
G.M.A.)

Eric J. Waltner
Allen & Gooch, A Law Corporation
P. O. Box 81129
Lafayette, LA 70598-1129
Telephone: (337) 291-1400
COUNSEL FOR:
Defendants/Appellees - LUBA Workers’ Compensation and Crawfish
Town USA

THIBODEAUX, Chief Judge.

In this workers’ compensation case, Plaintiffs, the dependent children

of a deceased employee, appeal the grant of a motion for summary judgment filed

by the employer, Crawfish Town USA, Inc., and its insurer, LUBA Workers’

Compensation. Plaintiffs filed a claim against these Defendants for death benefits

alleging the employee’s death was caused by an overdose of medication prescribed

as a result of a work accident. Defendants filed a motion for summary judgment,

contending that the claim was filed after the prescriptive period of one year from

the employee’s death and that Plaintiffs would not be able to establish causation at

trial. In turn, Plaintiffs argued that the prescriptive period should have commenced

on the date they discovered they had a cause of action and that they established

causation with the coroner’s testimony and documents from his investigation.

Because we find Plaintiffs’ claim timely, pursuant to the doctrine of contra non

valentem, and because we find that a genuine issue of material fact exists as to

causation, we reverse.

I.

ISSUES

We must determine:

(1) whether the trial court erred in granting Defendants’ Motion for
Summary Judgment on the ground of prescription; and

(2) whether the trial court erred in granting Defendants’ Motion for
Summary Judgment on the ground of Plaintiffs’ inability to
establish causation at trial.

II.

FACTS AND PROCEDURAL HISTORY

In November 2010, Shellie Belaire, an employee of Crawfish Town

USA, Inc. (“Crawfish Town”), allegedly sustained injury in an accident while in

the course and scope of employment. Crawfish Town denies that Ms. Belaire

sustained a work-related injury. It concedes, however, that Ms. Belaire was paid

indemnity benefits. Following the accident, Ms. Belaire was prescribed

medication for chronic pain resulting from the work injury.

On April 12, 2013, Ms. Belaire died. Ms. Belaire’s family believed

her death to be of natural causes. On May 20, 2013, Ms. Belaire’s death certificate

was issued. The certificate listed Ms. Belaire’s cause of death as an accidental

overdose of prescription medication. A formal demand on behalf of Ms. Belaire’s

two surviving sons was then made upon Defendants, Crawfish Town and LUBA

Workers’ Compensation, for conversion of Ms. Belaire’s previously paid

indemnity benefits to death benefits and burial expenses. Defendants requested the

birth certificates of Ms. Belaire’s two sons. The certificates were tendered by

Plaintiffs, the estate of Ms. Belaire through Judge J. Ayo and through Larry Joseph

Wiltz, Jr., the respective fathers on behalf of each of Ms. Belaire’s sons.

Subsequently, no death benefits or burial expenses were paid.

On May 7, 2014, Plaintiffs filed a Disputed Claim for Compensation

on behalf of each son seeking death benefits, funeral expenses, outstanding

medical expenses, penalties, and attorney fees on the basis of Ms. Belaire’s alleged

overdose of medication prescribed to treat her work injury. Upon receipt of these

claims, the trial court assigned each son a separate docket number, and the claims

were consolidated into one case. Defendants answered and filed a motion for

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summary judgment on grounds of prescription and Plaintiffs’ alleged inability to

establish causation between Ms. Belaire’s death and her alleged work accident at

trial. In opposition, Plaintiffs contended that their claim had not prescribed

because they filed the claim within a year of the date Ms. Belaire’s actual cause of

death was known and, therefore, within a year of the date they learned of a cause

of action against Defendants. Plaintiffs also claimed that prescription was

interrupted by Defendants’ acknowledgment of liability for death benefits.

Further, Plaintiffs contended that causation was established by the deposition of

the coroner who completed Ms. Belaire’s death certificate, Dr. Warren Degatur,

and information collected in his investigation of Ms. Belaire’s death.

The trial court granted Defendants’ Motion for Summary Judgment.

The trial court found that Plaintiffs’ claim had prescribed and that Plaintiffs could

not be able to meet their burden of proof at trial as to causation between Ms.

Belaire’s death and treatment for her workers’ compensation accident. Plaintiffs

appealed.

III.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo, using the same

criteria that govern the district court’s consideration of whether summary judgment

is appropriate.” Hogg v. Chevron USA, Inc., 09-2632, p. 5 (La. 7/6/10), 45 So.3d

991, 996. The considerations for whether summary judgment is appropriate are set

forth in La.Code Civ.P. art. 966 which states, in part:

B. (2) The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions, together with the
affidavits, if any, admitted for purposes of the motion for

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summary judgment, show that there is no genuine issue
as to material fact, and that mover is entitled to judgment
as a matter of law.

....

C. (2) The burden of proof remains with the
movant. However, if the movant will not bear the burden
of proof at trial on the matter that is before the court on
the motion for summary judgment, the movant’s burden
on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense,
but rather to point out to the court that there is an absence
of factual support for one or more elements essential to
the adverse party’s claim, action, or defense. Thereafter,
if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine
issue of material fact.

The issue of prescription when raised by motion for summary judgment is subject

to the same de novo review. Hogg, 45 So.3d 991. In our review, we will consider

“the record and all reasonable inferences that may be drawn from it in the light

most favorable to the non-movant.” Hines v. Garrett, 04-806, p. 1 (La. 6/25/04),

876 So.2d 764, 765.

IV.

LAW AND DISCUSSION

Prescription

Plaintiffs contend the trial court erred in granting Defendants’ Motion

for Summary Judgment because prescription was interrupted by Defendants’

alleged acknowledgement of liability. Alternatively, Plaintiffs contend the

prescriptive period commenced when they discovered they had a cause of action.

We agree in part. Applying the doctrine of contra non valentem, we find the

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prescriptive period commenced when Plaintiffs’ cause of action was reasonably

discoverable and that Plaintiffs’ claim filed within a year of that date was timely.

The applicable prescriptive period for work-related death benefits is

set forth in La.R.S. 23:1209(A) which states, in part:

A. (1) In case of personal injury, including death
resulting therefrom, all claims for payments shall be
forever barred unless within one year after the accident or
death the parties have agreed upon the payments to be
made under this Chapter, or unless within one year after
the accident a formal claim has been filed as provided in
Subsection B of this Section and in this Chapter.

Pursuant to La.R.S. 23:1209(A), a claim for death benefits is prescribed unless

“agreement is reached between the parties on death benefits within at least a year

of the employee’s death” or “a claim for death benefits [is] filed within one year of

the employee’s death.” Jonise v. Bologna Bros., 01-3230, p. 5 (La. 6/21/02), 820

So.2d 460, 464.

If a claim for death benefits has prescribed on its face, the burden is

on the plaintiff to show that the prescriptive period has been suspended or

interrupted. Id. One means by which prescription is interrupted is

acknowledgment under La.Civ.Code art. 3464. Pursuant to this article

“[p]rescription is interrupted when one acknowledges the right of the person

against whom he had commenced to prescribe.” Id. An acknowledgement

“involves an admission of liability, either through explicit recognition of a debt

owed, or through actions of the debtor that constitute a tacit acknowledgement.”

Gary v. Camden Fire Ins. Co., 96-55, pp. 4-5 (La. 7/2/96), 676 So.2d 553, 556. “A

tacit acknowledgement arises from a debtor’s acts of reparation or indemnity,

unconditional offers or payments, or actions which lead the creditor to believe that

the debtor will not contest liability.” Id.

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Alternatively, prescription may be suspended pursuant to the common

law doctrine of contra non valentem, which halts prescription from running against

a person who is unable to bring suit. Causby v. Perque Floor Covering, 97-1235

(La. 1/21/98), 707 So.2d 23. The Louisiana Supreme Court has recognized four

grounds for the application of contra non valentem:

(1) where there was some legal cause which prevented
the courts or their officers from taking cognizance of or
acting on the plaintiff’s action;

(2) where there was some condition coupled with a
contract or connected with the proceedings which
prevented the creditor from suing or acting;

(3) where the debtor himself has done some act
effectually to prevent the creditor from availing himself
of his cause of action; and

4) where some cause of action is not known or
reasonably knowable by the plaintiff, even though his
ignorance is not induced by the defendant.

Id. at 25.

The fourth ground of contra non valentem is commonly known as the

discovery rule. Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So.2d 206. This

rule “provides that prescription commences on the date the injured party discovers

or should have discovered the facts upon which his cause of action is based.” Id. at

211. Stated another way, pursuant to this doctrine prescription will not begin to

run against a plaintiff until he has “a reasonable basis to pursue a claim” against a

defendant. Jordan v. Employee Transfer Corp., 509 So.2d 420, 424 (La.1987). A

plaintiff’s ignorance of the facts giving rise to his cause of action, however, must

not be “willful, negligent or unreasonable.” Wimberly, 635 So.2d at 212. Further,

the discovery rule standard is stringent and should only be applied in exceptional

circumstances. Eastin v. Entergy Corp., 03-1030 (La. 2/6/04), 865 So.2d 49.

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Where a plaintiff has been “effectually prevented from enforcing his rights for

reasons external to his own will,” however, “principles of equity and justice”

demand that prescription be suspended. Wimberly, 635 So.2d at 211.

Here, the claim for death benefits has prescribed on its face. Plaintiffs

filed their claim on May 7, 2014, more than the prescriptive period of one year

from Ms. Belaire’s death on April 12, 2013. Further, the record does not show that

the parties reached an agreement as to the payment of death benefits. The burden

then shifted to Plaintiffs, who contended that prescription was interrupted by

Defendants’ alleged acknowledgment pursuant to La.Civ.Code art. 3464.

Alternatively, the prescriptive period commenced on May 20, 2013, when

Plaintiffs discovered they had a cause of action.

Addressing the acknowledgement issue first, we find Plaintiffs’

argument without merit. Plaintiffs allege that Defendants’ failure to deny a death

benefits claim, Defendants’ failure to file a WC-1003 “Stop Payment of Benefits”

form, and Defendants’ request for birth certificates amount to an acknowledgment

of liability. However, the absence of an outright denial of a possible death benefit

claim is not an overt admission of liability nor is it an act of reparation or

indemnity, an unconditional offer or payment, or an “[action] which [would] lead

the creditor to believe that the debtor will not contest liability.” Gary, 676 So.2d at

556.

Further, the failure to file a WC-1003 “Stop Payment of Benefits”

form is not an admission of liability. Pursuant to La.R.S. 23:1204, “[n]either the

furnishing of medical services nor payments by the employer or his insurance

carrier shall constitute an admission of liability for compensation under this

Chapter.” Under this statute, an employer’s payment of workers’ compensation

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benefits is not an admission of liability and, by extension, neither is an employer’s

decision to file or not file paperwork indicating such payment. While an

employer’s payment of benefits will interrupt prescription pursuant to the statutory

command of La.R.S. 23:1209(A), Defendants here ceased paying benefits upon

learning of Ms. Belaire’s death.

Additionally, Plaintiffs contend that Defendants’ request for birth

certificates constituted an acknowledgment of liability. Other than Defendants’

admission in their Answer that they did request birth certificates, there is no

correspondence in the record from Defendants on the matter to suggest that the

request for information presented an unconditional offer of payment, included

language acknowledging liability for death benefits, or included language which

would lead a party to believe that liability would not be contested. Thus, Plaintiffs

have failed to establish that Defendants made an acknowledgment to interrupt

prescription under La.Civ.Code art. 3464.

Alternatively, Plaintiffs contend that the prescriptive period

commenced on May 20, 2013. On this date, Ms. Belaire’s death certificate was

issued listing the immediate cause of death as an overdose of prescription

medication. Plaintiffs contend that prescription commenced on this date because it

is the date they discovered their cause of action, employing a legal theory

tantamount to a discovery rule argument.

Applying the discovery rule, we find prescription commenced on May

20, 2013. The discovery rule is applicable to suspend prescription “where some

cause of action is not known or reasonably knowable by the plaintiff, even though

his ignorance is not induced by the defendant.” Causby, 707 So.2d at 25. Here,

Plaintiffs stated they believed Ms. Belaire to have died of natural causes. Further,

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there is nothing in the record to suggest that there was information prior to the

issuance of the death certificate to alert Plaintiffs to a possible connection between

Ms. Belaire’s death in her home and a work accident occurring several years prior

to her death. Plaintiffs’ cause of action, then, was not “known or reasonably

knowable” until the death certificate was issued, and they learned that Ms.

Belaire’s death may have resulted from treatment prescribed for her work accident.

Defendants cite Jonise v. Bologna Bros., 00-485 (La.App. 1 Cir.

9/28/01), 809 So.2d 352, for the proposition that the prescriptive period for death

benefits commences on the date of death. In Jonise, the first circuit held that the

prescriptive period for death benefits did not commence on a date other than the

employee’s death where the plaintiff failed to show the employer lulled her into a

false sense of security and failed to show an employer’s knowledge of an

employee’s injury as having an effect on prescription. Id. Jonise is

distinguishable, however, as the court did not apply the discovery rule in ruling out

an alternate date for the commencement of prescription. Id.

This court’s decision in David v. Velsicol Chem. Corp., 09-1237

(La.App. 3 Cir. 10/27/10), 49 So.3d 997, writ denied, 10-2636 (La. 3/9/12), 83

So.3d 1052, is more pertinent. In David, plaintiffs filed suit against the

manufacturer of a cattle dip alleging its product contaminated their property with

arsenic. Id. Applying discovery rule principles, this court found that the plaintiffs

could not have had a reasonable basis to pursue a claim against the manufacturer,

and therefore prescription could not have commenced, before the plaintiffs learned

that the cattle dip could have been the cause of their arsenic contamination. Id. In

light of the foregoing legal principles and in the interest of equity and justice, we

find that prescription could not have begun to commence against Plaintiffs before

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they learned that treatment prescribed for Ms. Belaire’s work injury could have

been the cause of her death, giving rise to their cause of action. As such, we find

that the prescriptive period commenced on May 20, 2013, and that Plaintiffs’ claim

filed within one year of this date was timely.

Causation

Plaintiffs contend the trial court erred in granting Defendants’ Motion

for Summary Judgment on grounds of causation because they presented sufficient

evidence to show a factual issue existed as to the cause of Ms. Belaire’s death. We

agree. The evidence gathered in the coroner’s investigation is sufficient to create a

genuine issue of material fact as to whether a causal connection exists between Ms.

Belaire’s death and treatment for her work injury.

To establish a claim for death benefits a plaintiff must prove, by a

preponderance of the evidence, that a causal relationship exists between the work

accident and death. McKelvey v. City of Dequincy, 07-604 (La.App. 3 Cir.

11/14/07), 970 So.2d 682. Further, a plaintiff is not required to establish the exact

cause of death. Id. In McKelvey, this court found that a plaintiff had established a

causal connection between a work accident and an employee’s death in evidencing

that, more likely than not, the employee died of a probable mixed drug intoxication

of medications prescribed for a work injury. Id. At trial, the plaintiff introduced a

toxicology report and pharmacy records which showed the employee had high

amounts of several medications prescribed for his work injury in his system at the

time of death and that the employee had continuously used these medications the

year leading up to death. Id. The toxicology report also indicated that the

employee did not have alcohol or controlled substances in his system at the time of

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death. Id. Further, while not proof of causation in itself, the employee’s death

certificate was also introduced which stated that the cause of death was a “probable

mixed drug intoxication.” Id. at 687. The court found that the evidence taken

collectively indicated that there was a reasonable probability that the employee’s

work injury and death were causally related. Id.

In light of McKelvey, we find that Plaintiffs set forth sufficient

evidence to create a genuine issue of material fact as to a causal relationship

between Ms. Belaire’s death and her work accident. As in McKelvey, Plaintiffs

offered pharmacy records which show continuous use of prescription medication

for approximately a year leading up to Ms. Belaire’s death. Plaintiffs also offered

a toxicology report which showed that Ms. Belaire’s fluids at the time of death

were negative for alcohol and narcotics and positive for several drugs she had been

prescribed for her injury. Further, the toxicology report indicated that for three of

these drugs, the amounts found in her system at the time of death exceeded the

therapeutic range. Further, the coroner remarked that the medication levels in Ms.

Belaire’s vitreous fluids were “substantially high” and that this indicated the levels

in Ms. Belaire’s blood would be higher. He added that while he did not currently

have the information, that there was likely a way to extrapolate how much

prescription medication was in Ms. Belaire’s blood at the time of death from the

information on her vitreous fluids.

Defendants contend that there is no evidence of causation because the

coroner testified in his deposition that he could not rule out other causes of death

and could not opine that, more probably than not, prescription medications caused

Ms. Belaire’s death. However, the coroner also expressed in his deposition that it

was his feeling that Ms. Belaire had “over-taken two different opioids and that was

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the cause of her death.” He affirmed that he based this decision on the itemization

of medications and pills missing from each bottle, Ms. Belaire’s fluid samples, a

review of her prescription records, the scene of Ms. Belaire’s death, and

discussions with Ms. Belaire’s doctor and family members. The coroner’s

deposition, then, is not conclusive on this issue.

A genuine issue of material fact under La.Code Civ.P. art. 966 is “one

as to which reasonable persons could disagree.” Hogg, 45 So.3d at 997. In light of

the coroner’s testimony, the toxicology report revealing high and potentially fatal

amounts of prescription medication in Ms. Belaire’s system, and this court’s

decision in McKelvey, we find reasonable minds could disagree as to whether a

causal connection could be established between Ms. Belaire’s death and

medication taken to treat her work injury. As a genuine issue of material fact

exists on the issue of causation, a trial on the merits is the proper proceeding to

resolve this matter. Accordingly, we reverse the trial court’s grant of Defendants’

Motion for Summary Judgment on the issue of causation and remand for further

proceedings.

V.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court

and remand the matter for a trial on the merits. Costs of this appeal are assessed

against Defendants, Crawfish Town USA, Inc. and LUBA Workers’

Compensation.

REVERSED AND REMANDED.

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NUMBER 15-180
Consolidated With
NUMBER 15-181

COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA

ESTATE OF SHELLIE BELAIRE (JUDGE J. AYO ON BEHALF OF MINOR
SON G.M.A.)

VERSUS
CRAWFISH TOWN USA, ET AL.

AMY, J., dissenting.

I respectfully dissent from the majority opinion as I find that an affirmation

is required. As noted by the majority, plaintiffs pursuing workers’ compensation

death benefits must demonstrate, by a preponderance of the evidence, causation

between the work-related accident and the death. See McKelvey v. City of

Dequincy, 07-604 (La.App. 3 Cir. 11/14/07), 970 So.2d 682. In my opinion, the

slim record before this court indicates that the workers’ compensation judge

correctly determined that the submissions were deficient on the issue of causation.

Even upon consideration of the employer’s evidence (e.g., the coroner’s

deposition, toxicology report, and prescription logs), I do not find that genuine

issues of material fact exist as to this element. At most, the coroner generally

expressed the probability that prescription medication caused the decedent’s death.

However, there is no evidence placing the death within the context of the workers’

compensation claim or the treatment received by the claimant as a result thereof.

In short, the plaintiffs have failed to produce factual support indicating that they

“will be able to satisfy their evidentiary burden of proof at trial” on the issue of

causation. See La.Code Civ.P. art. 966(C)(2).

For these reasons, I would affirm the workers’ compensation judge’s ruling.