Louise M. REED, Individually and as Administratrix of the Estate of her Minor Children, Barbara Reed and Karen Reed
v.
YOR-WIL, INC., et al.
Court of Appeal of Louisiana, First Circuit.
*237 Sargent Pitcher, Jr., Rachel Pitcher Morgan, Michael C. Palmintier, Baton Rouge, for plaintiff-appellant Louise M. Reed, Indiv. and as Administratrix of the Estate of Her Minor Children Barbara Reed & Karen Reed.
Daniel R. Atkinson, Baton Rouge, for defendant-appellee Yor-Wil, Inc., William York and Maryland Casualty Co.
John S. White, Jr., Baton Rouge, for defendant-appellee Yor-Wil, Inc.
Before COVINGTON, COLE and WATKINS, JJ.
COVINGTON, Judge.
This is a devolutive appeal by plaintiff-appellant, Louise M. Reed, individually and as administratrix of the estate of her minor children, Barbara Reed and Karen Reed, from a judgment maintaining the peremptory exception of defendants-appellees, Yor-Wil, Inc. and William York, and dismissing plaintiff's suit with prejudice at her costs. We affirm.
The incident giving rise to the present litigation occurred on June 13, 1979, when the employee, Ervin Reed, while working as a pipe layer, in the course and scope of his employment with defendant, Yor-Wil, Inc., at the job site located in Lafayette, Louisiana, *238 was killed when a trench in which he was digging collapsed. The plaintiff sued Yor-Wil, Inc. and William York, an alleged supervisory employee of Yor-Wil, and asserted "intentional acts," as well as negligent acts, of the defendants, the pertinent articles of the petition reading as follows:
"3.
"Plaintiffs allege on information and belief that the proximate cause of the injuries sustained by the decedent and plaintiffs was the intentional act and/or negligence of defendant, Yor-Wil, Inc., which intentional act or negligence is particularized in the following nonexclusive respects:
"(a) Failure to dig the aforementioned trench in the manner prescribed by industry regulations;
"(b) Failure to provide appropriate safety equipment against the advent of a collapse such as that which occurred;
"(c) Failure, generally, to exercise the degree of care commensurate with the factual situation herein described.
"4.
"Additionally and/or in the alternative, plaintiffs aver that supervisory personnel of defendant Yor-Wil, Inc., acted intentionally and/or negligently and breached duties owed plaintiffs' decedent to furnish him a safe place within which to work, in causing or permitting the aforementioned dangerous conditions to exist on the job site. More particularly plaintiffs aver that defendant William York, negligently and/or intentionally breached duties owed directly and personally to decedent, being duties which had been delegated to him by defendant, Yor-Wil, and assumed by him, which negligent and/or intentional breach was a proximate cause of the accident sued on, in that said defendant knew or should have known of the dangerous and unsafe conditions referred to above, but that he allowed the dangerous and unsafe situation to remain, and required decedent to work under such conditions, which acts and failures to act constituted intentional and/or negligent breaches of duties owed directly and personally to plaintiffs' decedent."
The matter came on to be heard on defendants peremptory exception of no cause of action, on the ground that plaintiff's exclusive remedy is in workmen's compensation. The exception was sustained after hearing, with well-considered written reasons by the trial court, which are annexed as Appendix I.
There is no merit to plaintiff's contention on appeal that the trial court erred in sustained defendants peremptory exception of no cause of action. LSA-R.S. 23:1032, as amended by Act 147 of 1976, provides, in pertinent part, that the rights and remedies granted to an employee or his dependent by the Louisiana Workmen's Compensation Act are exclusive of all other rights and remedies of such employee, his representatives, dependents, or relations against his employer or an employee of his employer, except for an "intentional act."
Plaintiff's petition affirmatively alleges that the employee was killed while working with Yor-Wil, and that York was in a supervisory capacity as an employee of Yor-Wil, with respect to the work being undertaken. The well-pleaded facts of the petition are accepted as true for adjudication of the exception of no cause of action, this exception being used to raise the question of whether the petition alleges a grievance for which the law affords a remedy to anyone. Bamber Contractors, Inc. v. Henderson Brothers, Inc.,
In our opinion, Bazley v. Tortorich,
The issue raised by plaintiff's specification of error number one is whether or not the allegations of the petition in this case are sufficient to allege an "intentional act" exception to the immunity provided by the statute, as amended.
The allegations of the petition in the instant case fall far short of alleging material facts constituting an "intentional act" as defined by the Supreme Court in Bazley. See Nettles v. Bowlin,
Hence, an allegation of "negligence" is merely the pleader's own conclusion of law. Naquin v. Baton Rouge Coca-Cola Bottling Co.,
Disregarding the "intentional act" conclusions of plaintiff's petition, the remainder of the petition alleges only that plaintiff's death resulted from defendant's failure to dig a trench as prescribed by industry regulations and failure to provide safety equipment against the advent of trench collapse, when defendants knew or should have known that such failures were dangerous and unsafe. These allegations do not satisfy the Bazley definition of "intentional act". The alleged physical result of defendants' conduct was the death of plaintiff's decedent. The petition does not allege either that defendants desired to bring about the death of the employee, or believed that Reed's death was substantially certain to follow from what defendants did. We hold that the petition fails to state a cause of action.
Plaintiff's "motion to amend judgment" after signing the judgment sought leave of the trial court to amend the petition to state a cause of action. Plaintiff asserts in specification of error number two that the trial court erred in denying plaintiff's motion, citing LSA-C.C.P. art. 934 and Tobin v. Jacobson,
*240 LSA-C.C.P. art. 934 directs that a judgment sustaining a peremptory exception shall permit amendment to the petition when the grounds of the objection may be removed by the amendment. The record of this appeal does not show that the plaintiff represented to the trial court that an amendment to the petition would remove the objection raised by defendants' peremptory exception of no cause of action. The plaintiff's "motion to amend" merely alleged that plaintiff "desires and is entitled to" leave to amend the petition to state a cause of action. The first time plaintiff has indicated the scope of the amendment sought to the petition is in her appellate brief. Obviously, the trial court could not consider what had not been presented to it. That court is not to be faulted for insisting upon plaintiff's compliance with LSA-C.C.P. art. 934, by requiring plaintiff to indicate that the proposed amendment to the petition would remove the objection pleaded by defendants' exception.
Nevertheless, the proposed amendment is inadequate to state a cause of action under the "intentional act" exception to the immunity provided by LSA-R.S. 23:1032, as interpreted by Bazley, supra. Plaintiff's proposed amendment to the petition alleges in pertinent part that defendants "knew or should have known to a virtual certainty that the consequences of their actions specified hereinbelow would be the injury of plaintiff's decedent." (Emphasis added.)
Insofar as plaintiff's proposed amendment alleges what defendants "should have known", it clearly fails to satisfy the Bazley "intentional act" definition (defendants' conscious desire or actual belief concerning the physical results of their acts).
Disregarding the "should have known" allegation, the proposed amendment to the petition merely alleges that defendants knew to a virtual certainty that the consequences of their actions would be the injury of plaintiff's decedent. As Bazley points out, "`act' refers to an external manifestation of will which must be voluntary, and `intent' is present when the offender either desires the consequences of his act or when he knew that the consequences were reasonably certain to result from his act." The defendants' "acts" are pleaded: "requiring plaintiff's decedent to participate in the digging of a trench, etc." However, plaintiff alleges no material facts concerning the pleaded conclusion that defendants "knew" to a virtual certainty that the consequences of their actions would be the injury or death to plaintiff's decedent. The allegation in the proposed amendment to the petition that defendants "knew" to a virtual certainty that the consequences of their actions would be injury or death to plaintiff's decedent is a mere conclusion of law, with no material facts to support it.
The Louisiana Supreme Court clearly rejected conclusionary allegations in Bazley, and required allegations of material facts to state a cause of action. Further, the Supreme Court stated in Bazley, "The principal legislative aim of the 1976 amendment [to LSA-R.S. 23:1032] was to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict." This legislative aim should not be frustrated by requiring those benefitting from it to defend actions in which the petitions do not allege material facts of liability under one of the statutory exceptions to such immunity.
Tobin v. Jacobson, supra, relied on by appellant, does not state the nature or scope of the amendment to the petition proposed by the plaintiff in that case. It is, therefore, no authority for remanding this case for amendment of the petition, where plaintiff's specifically proposed amendment is inadequate to remove the grounds of defendants' exception.
For the foregoing reasons, we affirm the judgment of the District Court at plaintiff-appellant's costs.
AFFIRMED.
*241 APPENDIX I
LOUISE M. REED, INDIVIDUALLY AND * NUMBER 235,507 DIVISION M AS ADMINISTRATRIX OF THE ESTATE OF HER MINOR CHILDREN, BARBARA * 19TH JUDICIAL DISTRICT COURT REED AND KAREN REED VERSUS * PARISH OF EAST BATON ROUGE YOR-WIL, INC., and * WILLIAM YORK * STATE OF LOUISIANAWRITTEN REASONS FOR JUDGMENT
Pertinent Facts
Plaintiff is the surviving spouse of Ervin Reed who was killed when a trench in which he was working collapsed and partially buried him, eventually claiming his life. It is not disputed that Reed was in the course of his employment with defendant Yor-Wil, Inc. when the accident occurred. William York (Will Thomas York), the owner and president of Yor-Wil, Inc., was supervising the construction of the trench at the time of the accident and is joined as a defendant. Plaintiff alleges that the trench collapsed due to Mr. York's disregard for industry safety standards in his supervision of the construction. She argues that York's conduct should be classified as an "intentional act" as to which the workers' compensation act should not grant immunity to York or to Yor-Wil, Inc. The defendants interposed a peremptory exception of no cause of action, on the ground that plaintiff's exclusive remedy is in the compensation act. For the following reasons, the exception will be sustained.
Law and Reasons
La. R.S. 23:1032 provides in part:
"The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. * * *"
The exclusive remedy available to the dependents or relations of an injured employee against an employer, or an officer or employee of an employer is in workers' compensation. The second paragraph of the article provides for certain exceptions.
"Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability civil or criminal, resulting from an intentional act."
If the injury to the employee is caused by an intentional act of the offender, then an additional tort remedy is available against the offender. Plaintiff contends that Mr. York acted with sufficient disregard of industry safety standards to constitute "an intentional act" under the statute. In particular, plaintiff alleges defendant York's:
"a) Failure to dig the aforementioned trench in the manner prescribed by industry regulations;
b) Failure to provide appropriate safety equipment against the advent of a collapse such as that which occurred;
c) Failure, generally, to exercise the degree of care commensurate with the factual situation herein described."
INTENTIONAL ACTS
Plaintiff relies in part on the decision by the Fourth Circuit Court of Appeal in the case of Bazley v. Tortorich,
The Bazley decision stands alone. Numerous decisions both before and after the Bazley decision have interpreted the statute as it is written without the strained distinction which was made in that case. The First Circuit clearly stated what this court believes to be the correct interpretation of La. R.S. 23:1032 in the case of Guidry v. Aetna Cas. & Sur. Co.,
Plaintiff, at hearing and in a supplemental memorandum, argues that the Bazley decision is not the entire basis of her case. Rather, she asserts that the Guidry definition of "intentional" results from an incorrect interpretation of prior jurisprudence and doctrine. The Guidry court, as already noted, declared that the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow, citing Monk v. Veillon,
Plaintiff's argument is without merit. For the reasons more fully explained in the opinion rendered this day in Banks v. Claibon, et al, (La.App.)
Respondeat Superior
Plaintiff specifically urges that defendant Yor-Wil, Inc., as employer of defendant York, should be vicariously liable for what plaintiff terms the "intentional act" of York which allegedly caused the death of the decedent. To a great extent, this argument is without merit because, as discussed earlier, York has not committed an "intentional act" in the meaning of the statute. But significant policy issues are presented by plaintiff's argument, which should be discussed.
The decision in Bazley, so heavily relied upon by plaintiff, purported to hold that, while the legislature might grant a broad immunity to employers from negligence actions, it could not do so with reference to co-employees. The Bazley opinion suggests that interpreting Act 147 of 1976 to grant immunity to co-employees for their negligent conduct would cause it to be unconstitutional, since the injured employee received no compensation remedy from those employees for surrendering his tort remedy. Even if this court thought that distinction to be valid (which it does not), the respondeat superior argument made by plaintiff in this case would violate even the Bazley approach to employer liability. Plaintiff seeks to take advantage of the limited immunity (or from another view, broadened liability) created by Bazley and to hold the employer liable through respondeat superior when he would otherwise be immune.
The first problem with this approach is that an employer is not ordinarily liable for the intentional torts of an employee. Plaintiff cites no authority to the contrary, and for the reasons discussed in the Banks opinion (attached), there appears to be no authority for the proposition in this context.
Even assuming that plaintiff were correct in the suggestion that Yor-Wil, Inc. might be liable under respondeat superior for an intentional act of York, a holding that plaintiff could proceed in tort against Yor-Wil would clearly violate the policy behind La. R.S. 23:1032 and its recent amendment.
It must be presumed that the legislature by its 1976 amendment meant to deny the "protection" of the compensation act to both co-employees and the employer under certain circumstances. It provided that there was no immunity for "liability ... resulting from an intentional act." That could be interpreted as describing injury inflicted personally by the employer through an intentional act on his part, or as describing liability of the employer (whether a legal or a natural person) for the intentional act of a co-employee of the injured employee.
In the former instance, it should be clear that no social policy would be served by permitting an employer personally to commit intentional torts on an employee and then "hide behind" the compensation act. But in the latter instance, immunity from tort liability would serve the general policy of the act and was no doubt intended. We require the employer to pay compensation to an employee even when the injuries he received were the result of the intentional *244 conduct of a co-employee. As to the injured employee, this is "personal injury by accident" which is compensable. The employer should, in keeping with the compensation principle underlying the act, be immune from a tort suit for the same injury, absent some showing of personal involvement of the employer in the intentional wrongdoing.
The reasons supporting this position are summarized in Malone & Johnson, Workers' Compensation Law and Practice, 14 Civil Law Treatise, § 365, pp. 165-166:
It should be apparent from this discussion that the reasoning which might support tort liability against the employer for his personal intentional conduct, or even against a co-employee individually for his personal intentional conduct, fails when it comes to the tort liability of an employer for conduct for which is he only vicariously liable. In such a case the intentional conduct, done without the knowledge or consent of the employer, is an "untoward happening or event" as to both him and the injured employee, and it should be regarded as an accident, and hence within the exclusive purview of the statute. Thus the prior jurisprudence in Louisiana limiting such an employee to a compensation remedy was correct and should be reaffirmed after the amendment.2
As to the tort liability of the employer who personally engages in intentional conduct which harms the employee, it could be held that the purpose of the amendment was not to give such a person a shield from liability, but rather to leave to the employee in such a case whatever ordinary remedy tort law would afford to him. Legislative clarification would be preferable, making it clear that any individual remains personally liable for his intentional act which causes harm to an employee, whether that individual be an employer or any co-employee. But, to the extent that tort law would require an employer to respond for the intentional conduct of his employees toward a third person, the same result should not obtain within the compensation system when that third person is himself an employee. As to such an employee and the employer, whatever injury he suffers is "personal injury by accident"3 as that term has been interpreted by longstanding Louisiana jurisprudence; and the reference in the 1976 amendment to injury "resulting from an intentional act" is not intended to change that interpretation.
Unconstitutionality
Plaintiff also argues that La. R.S. 23:1032 is unconstitutional if it denies her the right to proceed in tort against York personally as a co-employee, and presumably against Yor-Wil, Inc. as his employer. The argument is too narrow, fails to consider the broad purposes of the entire compensation act, and moreover has been rejected upon numerous occasions.
The very foundation of workers' compensation rests on the compromise between the employee and the business enterprise in which each surrenders certain advantages in order to gain others which are of more importance both to themselves and to society. The employer agrees to pay when it would not otherwise be liable and the employee forfeits his former right to a chance at full damages and receives certainty of payment of a more modest amount. W. Malone and A. Johnson, Louisiana Workers' Compensation, 2d Ed., pp. 38 et seq. In that same edition, the authors state that:
"Worker's compensation rests upon the sound principle that those persons who enjoy the product of a businesswhether it be in the form of goods or services should ultimately bear the cost of injuries or deaths that are incident to the manufacture, preparation and distribution of the product."
* * * * * *
"Under this approach the element of personal fault either disappears entirely or is subordinated to broader economic considerations."
Cited in note 3 at page 39 is the opinion of Drew, J., in the case of Kroncke v. Caddo Parish School Board,
The legislature was entitled to construct a scheme to reflect this compromise, and to grant to the employee certain rights he never previously had (a money award without proof of fault on the part of the employer) in exchange for rights that he did have (upon proof of fault, tort damages against the employer or in some instances against a co-employee). It is true that prior to 1976, a tort suit against a co-employee was permitted, though it had never seriously been argued that an employer would have to respond indirectly through vicarious liability for such tort damages when he would not have to respond directly. After 1976, there is no more reason to entertain the argument that denial of a tort suit against a co-employee is unconstitutional, if the ultimate objective of such an argument is, again, indirect tort liability of the employer. The overall legislative scheme is the same, both prior to 1976 and after 1976, with reference to the tort and compensation liability of the employer.
The statute, as amended in 1976, has been consistently upheld against constitutional challenges. Branch v. Aetna Cas. & Sur. Co.,
The constitutional standard stated by Bazley, the rational relationship standard, is the proper standardbut it was incorrectly applied. Unlike the situation in which there is a right involved which the U.S. Supreme Court has considered as fundamental, the scrutiny under the "rational relationship" approach is minimal. A constitutional attack because of alleged denial of equal protection can be successfully opposed by demonstrating that the legislative classification reasonably furthers a valid state interest or governmental purpose. Flynn v. Devore, supra; also see City of New Orleans v. Dukes
All that need exist is a reasonable relationship to a valid state interest. Bazley concedes the grant of immunity as having a rational relationship to a valid state interest as it is afforded an employer. As indicated by the history of the immunity provisions and the jurisprudence cited herein, a clear state interest exists justifying the extension of immunity to the added classes. Because the basic purpose of the act was being undermined by suits against executive officers, the immunity was extended. The purpose was being undermined because, in reality the liability of these executive officers was eventually absorbed by the business enterprise.
The 1959 case of Adams v. Fidelity & Cas. Co.,
"If officers in the upper echelons of management find themselves exposed to the often disastrous prospect of tort liability *246 for the almost unlimited number of employee accidents that could be in some way attributed to their neglect, they will be impelled in practice to exact liability insurance from the corporate employer. The result may be a denial to the employer of much of the practical advantage of the exclusive remedy provision." W. Malone, La. Workmens' Comp. Law & Practice, supp. sec. 366.
In extending the immunity the legislature recognized that the quid pro quo which Bazley spoke of between the employer and employee was unbalanced in favor of the employee and that the benefits which the employer was to get under the system were not, as a practical matter, being received. That the amendment, in equalizing the position between the employee and employer, conferred an additional benefit on the added classes is not a basis for declaring such benefits invalid in light of the important state interest served. The validity of the extension of immunity and the underlying state interests which support it were discussed in Perez v. Continental Casualty Co.,
"... the growing number of `executive officer' suits presented practical problems to the employer. By extending the employer's immunity from tort suit to the officers, directors, stockholders, partners or employees of such employer, the legislature granted immunity not only to an employer, but to those who form the basic indispensible ingredients of the employer's business. Such extension of immunity tends to maintain the integrity and original purpose of the act. Under these circumstances the legislative classification is found to be within reason and it achieves the objectives of the state. It is not a denial of equal protection of the law."367 So.2d at 1288 (emphasis added)
This Court holds La. R.S. 23:1032 to be constitutional.
Conclusion
For the foregoing reasons, the court concludes that the peremptory exception of no cause of action must be sustained in favor of all defendants, and plaintiff's petition dismissed at her cost, because: (a) no defendant can be deemed to have committed an "intentional act" within the meaning of La. R.S. 23:1032, thereby losing the immunity from tort liability; (b) the immunity from tort liability granted an employer by La. R.S. 23:1032 is not lost when the responsibility of the employer is sought to be enforced by respondeat superior, absent any showing of personal involvement in an intentional tort by the employer; and (c) La. R.S. 23:1032 is not unconstitutional.
Baton Rouge, Louisiana this 17th day of November, 1980.
/s/ Charles William Roberts JUDGE, 19TH JUDICIAL DISTRICT COURT