Dwayne Comeaux v. Butcher Air Conditioning Company, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-154

DWAYNE COMEAUX

VERSUS

BUTCHER AIR CONDITIONING COMPANY, INC., ET AL.

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SUPERVISORY WRIT FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF LAFAYETTE, NO. 18-04192
ANTHONY PALERMO, WORKERS COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.

WRIT DENIED.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
COUNSEL FOR DEFENDANTS/RESPONDENTS:
Butcher Air Conditioning Company, Inc.
LCTA Casualty Insurance Company

C. Ray Murry
Jonathan Chatwin
Amber E. Murry
C. Ray Murry Attorney at Law, L.L.C.
9375 Florida Blvd.
Baton Rouge, LA 70815
(225) 831-4845
COUNSEL FOR PLAINTIFF/APPLICANT:
Dwayne Comeaux

SAUNDERS, Judge.

Relator, Dwayne Comeaux (“Comeaux”), seeks a supervisory writ from the

denial of his motion to strike the affirmative defenses of fraud and misrepresentation

filed by his employer, Butcher Air Conditioning, Inc. (“Butcher”), and its workers’

compensation insurer, LCTA Casualty Insurance Company (hereinafter collectively

referred to as “Defendants”). The ruling was rendered by the Office of Workers’

Compensation, District 04, the Honorable Anthony Palermo, WCJ presiding.

STATEMENT OF THE CASE

Comeaux was hired by Butcher as an air conditioning maintenance technician

on February 4, 2014. Comeaux disclosed the following things on a post-hire medical

history questionnaire dated February 11, 2014: (1) previous complaints of double

vision/blurred sight, headaches, and knee pain; (2) exploratory abdominal surgery in

1988 after a car wreck; (3) a strained muscle in his back that caused him to miss “a

couple of days” of work” in 1995; and (4) high blood pressure requiring medication.

On October 24, 2014, Comeaux filled out a “Knowledge Questionnaire” for the

Louisiana Second Injury Board (“Second Injury Board”), disclosing his high blood

pressure and the 1995 back injury. He indicated that he received workers’

compensation benefits for the 1995 back injury for one year. He did not list the

vision or knee complaints or the 1988 surgery.

Comeaux alleges that he was injured on December 2, 2014, when he yanked

on a snagged hose and fell backwards onto his buttocks. The alleged accident

occurred on the roof of a building where he was working and was unwitnessed. The

alleged accident happened near the end of his workday. He went to his primary care

physician the next day on his lunch break. Comeaux continued working until March

4, 2015, but he has not worked since that time.

Butcher alleges that it was not notified of the alleged accident until March 5,

2015. An investigator took a recorded statement from Comeaux in late March 2015,

and Comeaux reported that he suffered “several broken ribs and a left hip contusion

in a motor vehicle accident ‘six or seven years ago[.]’”

On November 6, 2015, the Second Injury Board denied Butcher’s claim that

Comeaux had a pre-existing permanent partial disability.

Comeaux’s treating orthopedist recommended a three-level lumbar disc

fusion in April of 2018, and Defendants requested a second medical opinion (SMO).

When Comeaux allegedly refused to attend the SMO as scheduled, Defendants

suspended benefits effective June 12, 2018. Comeaux filed a disputed claim for

compensation on June 21, 2018. Defendants filed a general denial on June 27, 2018,

and did not assert any affirmative defenses.

Defendants filed a motion seeking leave to file an amended answer, and on

September 24, 2018, the Workers’ Compensation Judge (“WCJ”) signed an order

allowing that. On September 26, 2018, Defendants filed an amended answer

alleging that Comeaux violated La.R.S. 23:1208 and 23:1208.1 by misrepresenting

prior accidents, misrepresenting prior similar injuries, and misrepresenting the

timely reporting of an accident/injury. Comeaux filed a motion to strike this

amended answer, alleging that Defendants waived the right to argue the affirmative

defense of fraud for the misrepresentation of benefits under either La.R.S. 23:1208

or 23:1208.1 by failing to raise it in their original answer and that the claims in the

amended answer were vague and ambiguous.

A hearing on the motion to strike was held on December 21, 2018. Over the

objection of Comeaux, Defendants were allowed to file their opposition to the

motion to strike after the hearing on the motion.

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A judgment denying the motion to strike was signed on December 28, 2018,

and notice issued the same day.1 Comeaux timely filed a notice of intent to apply

for a supervisory writ, and the WCJ set a return date of February 8, 2019. Comeaux

timely requested an extension, and a new return date of February 25, 2019, was set.

This writ application was timely filed. Defendants filed an opposition to the writ

application.

There are no scheduled hearings, and no trial date has been set. The WCJ

issued a stay of the proceedings pending the resolution of this writ application.

“[T]he trial court’s ruling on a motion to strike is interlocutory in nature and,

generally is not appealable.” State by and through Caldwell v. Teva

Pharmaceuticals Industries, Ltd., 17-448, p. 16 (La.App. 1 Cir. 2/8/18), 242 So.3d

597, 607 (citations omitted). “Ordinarily, an application for a supervisory writ is the

appropriate vehicle for the review of an interlocutory judgment.” McGinn v.

Crescent City Connection Bridge Authority, 15-165, p. 4 (La.App. 4 Cir. 7/22/15),

174 So.3d 145, 148.

ON THE MERITS

Late-Filed Opposition

Comeaux argues that the WCJ erred in allowing Defendants to file an

opposition to his motion to strike after the hearing because this violates La.Dist.Ct.R.

9.9(c), which requires that an opposition be served so that it is received by the other

party at least eight calendar days prior to the hearing. This court considered several

cases where parties did not file their oppositions to motions for summary judgment

in accordance with La.Dist.Ct.R. 9.9(c) and noted that there is no abuse of discretion

in “choosing to allow late-filed opposition materials if there is no prejudice to the

1
Comeaux alleges that despite his request for written reasons for ruling, the WCJ has not
issued any.
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mover.” Tolliver v. Broussard, 14-738, p. 10 (La.App. 3 Cir. 12/10/14), 155 So.3d

137, 144, writ denied, 15-212 (La. 4/17/15), 168 So.3d 401 (emphasis in original)

(citations omitted). In this case, Defendants allege that Comeaux was not prejudiced

by the WCJ’s allowing Defendants to file their opposition after the hearing because

the court had granted a motion to continue. Defendants allege that a continuance

was granted at Comeaux’s request to allow him time to respond to the issues raised

in the amended answer. Comeaux alleges that Defendants asked for the continuance

after the hearing began and cites pages 12-13 of the transcript. The transcript does

not support that allegation. Defendants do not provide any motion to continue or

order granting a continuance with their opposition to the writ application, but the

transcript is clear that the WCJ did not think that there would be a hearing on the

motion to strike. Defendants’ opposition to the motion to strike states that Comeaux

asked for, and was granted, a continuance of a December 12, 2018, trial date in order

to respond to the amended answer that was filed at the end of September. According

to Defendants, it was thought that the motion to strike was moot due to the

continuance.

Comeaux also contends that allowing Defendants to file an opposition after

the hearing deprived him of his “right” to file a reply brief and his “statutory right”

to make oral arguments in response to the issues raised in the opposition. Louisiana

District Court Rule 9.9(d) states that the mover “may” furnish a reply memorandum.

While Comeaux argues that this opposition makes new arguments and cites new

cases, the opposition merely addresses and attempts to distinguish the cases cited by

Comeaux. The only new case cited is Hazelwood Farm, Inc. v. Liberty Oil & Gas

Corp., 01-345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, writ denied, 01-2115 (La.

7/26/01), 794 So.2d 834, and it is cited only for the proposition that a motion to

strike should not be used as a means of disallowing substantive allegations. This is
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hardly a new issue that the WCJ would have found necessary or helpful to be

addressed in a reply memorandum or oral argument by Comeaux.

The WCJ indicated that it would make a decision on the motion on

“Wednesday” following the hearing, which was held on Friday, December 21, 2018.

Defendants filed their opposition the same day, December 21, 2018, and certified

that they faxed it on the same day to Comeaux’s counsel. The trial court did not sign

a judgment until December 28, 2018. There is no indication in the writ application

that Comeaux attempted to file a reply or request a further hearing between

December 21 and December 28, 2018.2

We find that the WCJ did not abuse his discretion in allowing Defendants to

file an opposition to the motion to strike after the hearing or in considering that

opposition in rendering his decision on the motion to strike.

Motion to Strike

Louisiana Code of Civil Procedure Article 964 provides, in pertinent part, that

“[t]he court on motion of a party . . . may at any time and after a hearing order

stricken from any pleading any insufficient demand or defense[.]” “The granting of

a motion to strike . . . rests in the sound discretion of the trial court and is reviewed

under the abuse of discretion standard.” Cole v. Cole, 18-523, pp. 7-8 (La.App. 1

Cir. 9/21/18), 264 So.3d 537, 544. This court has noted that “[m]otions to strike are

viewed with disfavor and are infrequently granted.” Hazelwood, 790 So.2d at 98.

Comeaux contends that the amended answer should be stricken because

Defendants waived the affirmative defense of fraud by failing to plead it in their

original answer. In the alternative, Comeaux argues that the amended answer should

2
Only December 24 and 25, 2018, were state holidays.
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be stricken because it fails to plead fraud with particularity as required by La.Code

Civ.P. art. 856.

Louisiana Code of Civil Procedure Article 1002 provides that “the defendant

may file his answer or other pleading at any time prior to the signing of a final default

judgment against him.” Louisiana Code of Civil Procedure Article 1005 provides

that fraud, as an affirmative defense, must be set forth in the answer. This applies

to an employer’s claim under La.R.S. 23:1208. Messina v. Isle of Capri Casino, 04-

1061 (La.App. 3 Cir. 12/22/04), 891 So.2d 780, writ denied, 05-535 (La. 4/29/05),

901 So.2d 1071.

The policy behind the requirement that affirmative defenses be
raised in answer is sensible and laudable. Because affirmative defenses
raise matters for judicial resolution outside of issues raised by
plaintiff’s petition, plaintiff must be made aware of these matters at an
early stage so that plaintiff can prepare an opposition to the defense and
adjust his case, if necessary, in light of the new facts and issues raised
by the affirmative defense. If the affirmative defense is allowed despite
the defense not being raised in answer, the result is a surprise “trial by
ambush” that unfairly aids the defendant, who knew about the defense
even though plaintiff was kept in ignorance of the defense.

Rider v. Fontenot, 463 So.2d 951, 956 (La.App. 3 Cir. 1985).

There is no statute or jurisprudence that requires an employer’s claim under

La.R.S. 23:1208 or 23:1208.1 be brought only in an original answer and/or that

prohibits it from being raised in an amended answer. To the contrary, “[t]he trial

court has great discretion in determining whether to allow amendment to pleadings.

Thus, a trial court’s ruling on the issue will not be reversed absent an abuse of that

discretion.” Koonce v. St. Paul Fire & Marine Ins. Co., 15-31, p. 12 (La.App. 3 Cir.

8/5/15), 172 So.3d 1101, 1109, writ denied, 15-1950 (La. 11/30/15), 184 So.3d 36.

In Koonce, 172 So.3d at 1110, this court noted that the plaintiff “focuses

sharply on the fact that the immunity defenses were not asserted at the dawn of the

litigation” but concluded that “[h]is reliance on this is misplaced.” This court noted

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the following factors in finding no abuse of discretion in the denial of the plaintiff’s

motion to strike the amended answer and affirmative defenses: (1) there was “no

evidence that Appellees sought to amend their answer in bad faith or for the purpose

of achieving a delay of the proceedings[,]” and (2) the plaintiff did not allege or

show that he was prejudiced by the amended answer. Id.

In Messina, 891 So.2d 780, the employer forfeited its right to plead the

employee’s fraud because it never raised the issue until it included that allegation in

its pre-trial statement which was untimely filed one week before trial. Messina is

distinguishable. In the present case, Defendants sought and were granted leave of

court to file an amended answer. The amended answer was filed only three months

after the disputed claim for compensation. September 26, 2018, the date on which

the amended answer was filed, was well within the sixty-day deadline from the

December 12, 2018 trial date set by the scheduling order for the amendment of

pleadings. Comeaux does not dispute that the trial date was continued at his request.

As Defendants note, in Comeaux’s motion to strike, Comeaux himself points out all

of the specific incidents that Defendants claim constitute Comeaux’s

misrepresentations or his failures to disclose his prior injuries, including the 2008

car accident. As such, Comeaux’s claim that the allowance of the filing of the

amended answer is unduly prejudicial to him is disingenuous.

The merits of the fraud defense are not at issue in this writ application. Only

Defendants’ right to raise the defense is at issue. For the reasons cited above, we

find that the trial court did not abuse its discretion in denying Comeaux’s motion to

strike the amended answer alleging fraud.

WRIT DENIED.

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