MELVIN GUIDRY AND TRIEGE GUIDRY VERSUS ABC TRUCKING COMPANY, ET AL

Lake Charles, LA - Personal Injury lawyer represented Appellants with seeking damages for injuries.

Melvin and Triege Guidry filed suit against Larsen Intermodal

Services, Inc. ("Larsen”) seeking damages for injuries Mr. Guidry sustained while

loading/unloading metal products from a tractor/trailer truck. Because the injury

was sustained in the course and scope of his employment, Mr. Guidry also filed a

workers' compensation claim against his employer, Louisiana Scrap Metal

Recycling (Louisiana Scrap). The Guidrys' suit against Larsen was subsequently

dismissed on Larsen's exception of prescription.

Thereafter, Louisiana Scrap and its workers' compensation insurer, The

Hartford Fire Insurance Company (Hartford), filed a petition of intervention, seeking

to intervene in the Guidrys' dismissed suit and requesting reimbursement from

Larsen for compensation paid to Mr. Guidry. At the same time, Louisiana

Scrap/Hartford filed a separate suit directly against Larsen, likewise seeking

reimbursement for compensation paid to Mr. Guidry. Larsen filed exceptions of

prescription in both suits. In opposition, Louisiana Scrap/Hartford argued that,

because Louisiana Scrap and Larsen are solidarily obligated to Mr. Guidry, Mr.

Guidry's timely-filed workers' compensation claim against Louisiana Scrap

interrupted prescription on Louisiana Scrap's/Hartford's suit against Larsen. After

a hearing, the trial court granted the exceptions.

Louisiana Scrap/Hartford appealed the judgment, dismissing their

intervention, in docket number 18-587, and the judgment, dismissing their separate

suit, in docket number 18-588. Upon Larsen's motion, this court consolidated the

two appeals.

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Having reviewed the record, we find the trial court did not err in

granting Larsen's exceptions of prescription or in its reliance upon this court's

holding in Deculus v. Augenstein Construction Co., Inc., 425 So.2d 315 (La.App. 3

Cir. 1982), writ denied, 430 So.2d 658 (La.1983). Accordingly, we affirm.

I.

ISSUE

Louisiana Scrap/Hartford raise a single issue for this court's

consideration:

Does a timely filed workers' compensation claim

against [] an employer/insurer interrupt prescription as to

the subsequent claim of the employer/insurer against the

third party tortfeasor for the recovery of workers'

compensation benefits paid to or on behalf of the

employee[?]

We answer in the negative for the reasons that follow.

II.

FACTS AND PROCEDURAL HISTORY

On August 2, 2012, Mr. Guidry, while employed by Louisiana Scrap,

was operating a forklift, transporting various metal products into the container

portion of a tractor/trailer truck. The truck had been delivered to Louisiana Scrap

by Larsen and was, at all pertinent times, in Larsen's possession and control. During

the loading/unloading process, the container portion of the truck became disengaged

from the ramp, allegedly due to a Larsen employee's failure to properly secure the

ramp. The forklift then fell about a foot off the edge of the container, causing injuries

to Mr. Guidry for which Louisiana Scrap was required to pay both indemnity and

medical benefits in workers' compensation.

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Mr. Guidry filed his disputed claim for workers' compensation against

Louisiana Scrap in April 2013. The Guidrys then filed a third-party tortfeasor suit

in this matter on August 2, 2013. In their petition, the Guidrys named two fictitious

entities as defendants: (1) ABC Trucking Company (the owner or lessor of the

tractor/trailer truck), and (2) XYZ insurance company (the insurer of ABC Trucking

Company).

Because only fictitious entities were named as defendants, the original

petition was not served on Larsen or any other entity. Almost three months later, on

October 31, 2013, the Guidrys amended their petition, substituting Larsen for ABC

Trucking Company. Service was requested on Larsen at that time but was not

effected until December 4, 2013. Larsen then filed an exception of prescription,

which was heard and granted on May 12, 2014. On that same date, the trial court

executed a judgment, dismissing the Guidrys' suit, with prejudice.

The Guidrys fax filed their motion and order for devolutive appeal on

July 15, 2014. However, the appeal was subsequently dismissed, by judgment

signed on October 20, 2014, on the grounds of abandonment for failure to pay costs.

Meanwhile, on July 11, 2014, Louisiana Scrap/Hartford fax filed a

petition for intervention in the previously dismissed suit, seeking reimbursement for

compensation and medical benefits paid to and on behalf of Mr. Guidry in

connection with the August 2, 2012 accident. That same day, Louisiana

Scrap/Hartford fax filed a separate suit against Larsen, likewise seeking

reimbursement for compensation and benefits paid to Mr. Guidry.

On January 25, 2018, Larsen filed exceptions of no cause of action and

prescription, seeking dismissal of the intervention. It also filed exceptions of lis

pendens, no cause of action, and prescription in the separate suit. All of the

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exceptions were heard on March 26, 2018, at which time the trial court, relying on

this court's holding in Deculus, 425 So.2d 315, sustained both exceptions of

prescription and denied, as moot, the remaining exceptions. Judgments dismissing

both actions were signed on April 9, 2018.1

III.

STANDARD OF REVIEW

In Allain v. Tripple B Holding, LLC, 13-673, pp. 9-10 (La.App. 3 Cir.

12/11/13), 128 So.3d 1278, 1285, this court discussed the standard an appellate court

applies in reviewing an exception of prescription:

Prescription is a peremptory exception which is

provided for in La.Code Civ.P. art. 927. Evidence in

support or contravention of the exception may be

introduced if the grounds are not apparent from the

petition. La.Code Civ.P. art. 931. An appellate court

reviews the exception under the manifest error standard of

review if evidence is introduced in support or

contravention of the exception. Dugas v. Bayou Teche

Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d

826. If not, the appellate court "simply determines

whether the trial court's finding was legally correct.” Id.

at 830. Generally, the burden of proof lies on the party

pleading the exception of prescription. Id. However, if it

is apparent from the face of the pleadings that prescription

has occurred, the burden shifts to the plaintiff to show that

the action has not prescribed. Id.



1Although Louisiana Scrap/Hartford appealed both judgments, they have failed to brief any

issues related to the dismissal of their petition for intervention. Accordingly, pursuant to Uniform

Rules—Courts of Appeal, Rule 2-12.4(B)(4), we "consider as abandoned any assignment of error

or issue for review” related to their intervention. Further discussion of these issues is hereby

pretermitted.

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IV.

LAW AND DISCUSSION

Our supreme court has long held that the cause of action at issue herein

is subject to the one-year period of liberative prescription applicable to delictual

actions, which commences to run from the date of injury:

[The] cause of action against the tortfeasor for the injuries

sustained by the employee, which may be instituted either

by the employee himself or the employer for

reimbursement of compensation paid, . . . is governed by

the prescription of one year set forth in Article [3492] of

the Civil Code. This prescription . . . commences to run

from the date on which the damage was inflicted.

Marquette Cas. Co. v. Brown, 235 La. 245, 253-54, 103 So.2d 269, 272-73 (1958).

According to the petition, the accident giving rise to Mr. Guidry's

injuries occurred on August 2, 2012. Significantly, Louisiana Scrap/Hartford did

not file their petition against Larsen until July 15, 2014, almost two years later. As

a result, it is apparent from the face of the petition that prescription has run. The

burden then fell to Louisiana Scrap/Hartford to show that their action has not

prescribed. To do so, Louisiana Scrap/Hartford attempted to prove that prescription

was interrupted by Mr. Guidry's workers' compensation claim filed in April 2013.

In their argument to the trial court, as well as to this court, Louisiana

Scrap/Hartford have asserted that Louisiana Scrap and Larsen are solidary obligors

as to the injured employee, Mr. Guidry. Therefore, Mr. Guidry's timely-filed

workers' compensation claim against Louisiana Scrap interrupted prescription as to

Louisiana Scrap/Hartford's claim against Larsen for the recovery of workers'

compensation benefits paid to or on behalf of Mr. Guidry. As authority, Louisiana

Scrap/Hartford have relied exclusively on Williams v. Sewerage & Water Board of

New Orleans, 611 So.2d 1383 (La.1993).

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In Williams, an employee, while in the course and scope of his

employment with the Sewerage and Water Board of New Orleans (S&WB), was

fatally electrocuted when he touched a crane that came in contact with an overhead

power line on September 2, 1986. His surviving widow and five major children filed

suit against S&WB on August 31, 1987, seeking workers' compensation death

benefits and tort damages. They also named as defendants the owner of the power

line and "ABC Corporation,” the manufacturer of the crane. But it was not until

their third amended and supplemental petition, filed on August 26, 1988, that the

plaintiffs properly named Little Giant as the crane's manufacturer. Little Giant then

filed an exception of prescription, which the trial court denied.

Reviewing the appellate court's reversal of the trial court's denial of the

exception, the supreme court held:

This case presents the issue of whether an employer

sued for recovery of worker's compensation is solidarily

bound with a third party tort-feasor for the purpose of

interrupting prescription. Because some elements of the

damages recoverable from the employer and the tortfeasor are coextensive, we find that they are solidarily

bound to that extent. Once prescription is interrupted

based on this solidarity, the plaintiffs are free to assert

whatever claims they have against the defendants. Thus,

in this case, a suit timely filed against the employer for

worker's compensation interrupted prescription as to the

subsequent claim against the third party tort-feasor for

damages.

Id. at 1384-85.

In the language recited above, the Williams court specifically held that

the plaintiffs' timely-filed suit against an employer for workers' compensation

interrupted prescription as to the plaintiffs' claim against a third-party tortfeasor.

Louisiana Scrap/Hartford, however, seek to extend this holding to allow an

employee's/plaintiff's timely-filed workers' compensation claim against his

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employer/defendant to interrupt prescription as to the employer's/defendant's claim

for reimbursement against the third-party tortfeasor. We, like the trial court, find

that such an extension is not warranted and that Louisiana Scrap's/Hartford's

reliance upon Williams is misplaced in light of the facts herein.

This is particularly sound given this court's decision in Deculus, 425

So.2d 315, wherein the court was asked to determine whether an employer's thirdparty demand against the alleged tortfeasor for reimbursement had prescribed. In

that case, the employee, Deculus, filed suit on January 6, 1978, against his employer,

Augenstein Construction Co., Inc. (Augenstein), for workers' compensation.

Deculus alleged that he experienced numerous medical problems resulting from the

inhalation of chemicals, gases, and fumes emitted by an Olin Corporation (Olin)

plant, which rendered him totally and permanently disabled and ultimately forced

him to terminate his employment on March 14, 1977. Over three years later, on

September 25, 1980, the employer filed its third-party demand, naming Olin as a

third-party defendant. In response, Olin filed an exception of prescription, which

the trial court sustained. This court affirmed the trial court's judgment, reasoning:

On the basis of these holdings we conclude that for

the purposes of prescription and LSA-R.S. 23:1101-03

there is only one principal cause of action which may be

asserted by the employer or the employee. Prescription

begins to run on this action from the day the damage is

inflicted by the tort-feasor. The failure of the employer or

the employee to assert its claim within the one year

prescriptive period provided by LSA-C.C. Article [3492]

is fatal to their claim.

Augenstein's third party demand was not filed until

September 25, 1980. The latest date that one might

interpret as being the date in which the damage was

inflicted by Olin was March 14, 1977, the date of Deculus'

termination. Therefore, over three and one-half years

lapsed before suit was filed by Augenstein against Olin.

Deculus asserted no claim against Olin during this three

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and one-half year period that would interrupt prescription

for the employer's assertion of its rights. Hence,

Augenstein's right to assert a claim against the alleged

third party tort-feasor, Olin, has prescribed.

Id. at 317.

As the record shows, Louisiana Scrap/Hartford waited until almost two

years after the August 2, 2012 accident to file their claim against Larsen. And,

although the Guidrys did attempt to file suit against Larsen, their claim was

dismissed on the basis of prescription. Consequently, the Guidrys' prescribed claim

could no more interrupt prescription on Louisiana Scrap's/Hartford's assertion of

their right for reimbursement against Larsen than it could interrupt prescription on

the Guidrys' assertion of their own rights against Larsen. It follows, therefore, that

because neither the employee nor the employer properly asserted a claim against

Larsen within the one-year prescriptive period that would serve to interrupt

prescription, Louisiana Scrap's/Hartford's right to assert their claim for

reimbursement against Larsen has prescribed.

Based on this reasoning, we find the trial court properly dismissed

Louisiana Scrap's/Hartford's separate suit against Larsen on the basis of

prescription. Accordingly, we affirm the judgments of the trial court

For the foregoing reasons, the judgments of the trial court granting

Larsen’s exceptions of prescription are affirmed.