Ronald GREEN
v.
LIBERTY MUTUAL INSURANCE COMPANY, Ray Pitre, Ray Valliant, George Isreal and Robert Sour.
Court of Appeal of Louisiana, Fourth Circuit.
*367 Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Eldon E. Fallon, New Orleans, for plaintiff-appellant.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart E. Niles, Jr., and Steven G. Durio, New Orleans, for Ray Pitre, George Isreal, Robert Sour and Liberty Mut. Ins. Co., defendants-appellees.
Leonard Fuhrer, Alexandria, for Louisiana Trial Lawyers Ass'n, amicus curiae.
Before LEMMON, STOULIG and BEER, JJ.
STOULIG, Judge.
This is an appeal from a judgment dismissing an "executive officer" tort suit on an exception of no cause of action. Ronald Green alleged the negligent acts of omission of four officers [1] of Westbank Electric, Inc., created unsafe working conditions at his place of employment that proximately caused his injury in an industrial accident.
*368 The accident occurred January 11, 1976. La.Acts 1976, No. 147, § 1 was enacted some six months later, and, among other things, it amended R.S. 23:1032 to prohibit suits against executive officers based on any activity they performed as management of the corporate employer. This suit was filed November 8, 1976, several months after the amendment became effective.[2] In maintaining defendants' exception, the court applied the amending law retroactively.
The issue before us is whether the amendment destroys a cause of action based on incidents that occurred prior to the effective date of Act 147 of 1976. Or, stated another way, is the law at issue subject to prospective or retroactive application?
As a general rule, laws are deemed to be prospective in effect unless their language clearly indicates otherwise. C.C. art. 8; R.S. 1:2; Churchill Farms, Inc. v. Louisiana Tax Com.,
Appellant contends R.S. 23:1032, as amended by Act 147, falls within the general rule of prospective operation. Appellees claim the law is remedial and/or curative or interpretative and is entitled to retroactive application.
Prior to its adoption, an injured workman could file a suit in tort against any executive officer or director of his corporate employer for a work-connected injury despite the R.S. 23:1032 concept that a workmen's compensation claim was an exclusive remedy. The landmark decision in Canter v. Koehring Company,
Act 147 clearly repudiates this result by amending R.S. 23:1032 to prohibit executive officer suits based on employment-connected negligent acts of commission or omission. Now not only is the corporation itself shielded from tort liability under the respondeat superior doctrine, but also the corporate directors have no personal exposure as long as the action complained of falls within the ambit of their managerial duties.
In attempting to bring this within one of the exceptions to the prospective application rule, appellees rely on Gulf Oil Corporation v. State Mineral Board, supra, which discusses the permissibility of retroactively applying interpretative laws. The reasoning is the legislature is simply stating more clearly what it meant to say in the first place. We quote the language appellees emphasize:
"Moreover, interpretive legislation cannot properly be said to divest vested rights, because, under civilian theory, such legislation does not violate the principle of non-retroactivity of laws. The interpretive legislation does not create new rules, but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. * * *"317 So.2d at 591 .
*369 The issue in Gulf was whether the State's patents granted to private owners over navigable water bottoms were valid. Pointing out that such conveyances were null ab initio and repugnant to stated public policy, the Supreme Court declared La.Acts 1912, No. 62 invalid insofar as it quieted title to privately owned property illegally transferred from the State. In reaching this result it discussed at length La.Acts 1954, No. 727, which (1) reiterated the State's policy against private ownership of navigable water bottoms, (2) specified that privately held property titles granted under state patents could only be quieted by La.Acts 1912, No. 62 if the land in question could have been validly deeded ab initio; and (3) specifically declared the 1912 law intended this originally.
While the Supreme Court discussed Acts 1954, No. 727 as evidence of the legislative intent expressed by La.Acts 1912, No. 62, and, without holding it was interpretative, the Court based its result on the original act of repose. In so doing it avoided the constitutional pitfalls of a retroactive application of an amending statute.
The instant case is not concerned with a law repugnant to public policy of this State. We are dealing with an individual right to seek redress for injuries in a given situation. Whether an injured workman may or may not file a tort suit against an executive officer of his employer corporation has no relation to policy limitations by the sovereign toward its citizens as does the public versus private ownership of water bottoms. Unlike Gulf, this case takes away what once was a valid cause of action. The water bottoms ownership, the Court reasoned, was null ab initio. We do not deem Act 147 of 1976 a clearer restatement of the original section of the compensation law. Rather we think it is a change that the legislature in its wisdom thought was relevant at this point in time.
Nor do we conclude Act 147 is remedial or curative and entitled to retroactive application as was the statute at issue in Fullilove v. U. S. Casualty Company of New York, supra. Briefly, that case involved a suit titution. On both the state and federal levels, the court against the State of Louisiana authorized by a joint resolution of the legislature, waiving the State's sovereign immunity. The State filed an exception of no cause or right of action, which the trial court maintained because the Supreme Court had recently declared the legislature could not validly waive the sovereign immunity granted the State by La.Const.1921, Art. 3, § 35. (Duree v. Maryland Casualty Company,
U.S.Const. Art. 1, § 10 prohibits a state from passing a retroactive law that would destroy a vested right of a citizen or impair the obligation of a contract, while the Fourteenth Amendment guarantees the citizen against loss of a property right without due process of law. See also La.Const. 1974, Art. 1, § 23. The right to file a damage suit in tort is a vested property right. If we were to give retroactive effect to the amending language of R.S. 23:1032, we would effectively terminate plaintiff's right and in so doing give an unconstitutional interpretation to the statute. Churchill Farms, Inc. v. Louisiana Tax Com., supra.
*370 We hold the amendment to R.S. 23:1032 is prospective in operation. Our result conflicts with the holding in Barr v. Preskitt, M.D., Ala.E.D.,
For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings consistent with the views herein expressed. The motion to certify this matter to the Supreme Court of the State of Louisiana is denied. All costs of this appeal are to await the final disposition of this matter.
REVERSED AND REMANDED.
NOTES
Notes
[1] Named defendants were Ray Pitre, Ray Valliant, George Isreal and Robert Sour, individually, and their liability insurance carrier, Liberty Mutual Insurance Company.
[2] The effective date of La.Acts 1976 is October 1, 1976.