Stelly v. Overhead Door Co. of BRStelly v. Overhead Door Co. of BR
Patrick C.
Graham N. Smith, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell,
Lawrence S. Kullman, New Orleans, for Louisiana Trial Lawyers Ass‘n, amicus curiae.
Dissenting Opinion of Chief Justice Calogero December 12, 1994.
FELICIA TONEY WILLIAMS, Judge Pro Tem.1
The issue in this tort action is whether an employee injured at work by a defective condition of the building is prohibited by
I.
Plaintiff, Joseph Stelly (“Stelly“), was employed as a mechanic by United Parcel Service (“UPS“) at its Opelousas Service Center. The building housing the service center was owned by Elvin Ortego (“Ortego“) and leased to UPS. By the terms of the lease agreement, UPS assumed all liability for the condition of the leased premises.3
On December 16, 1987, Stelly was injured while in the course and scope of his employment when he attempted to manually raise an overhead door.4 He filed a claim for worker‘s compensation benefits against UPS, and its worker‘s compensation insurer, Liberty Mutual Insurance Company (“Liberty Mutual“). He and his wife also filed this tort suit against Ortego, Overhead Door Company of Baton Rouge, Inc. and Overhead Door Corpоration. Even though Stelly was receiving worker‘s compensation benefits, the Stellys amended their tort suit to add as defendants UPS and Overhead Door Company of Acadiana.5 They based their tort claims
In response to the Stellys’ tort suit, UPS filed an exception of no cause of action and of no right of action and, alternatively, a motion for summary judgment. UPS contended that, because Stelly was its employee, the Stelly‘s were precluded from suing it in tort for a work-related accident. It claimed that a provision of the Worker‘s Compensation Act,
Based upon
On the Stellys’ application, we granted certiorari7 to determine whether Act 454 of 1989 is interpretative legislation which applies retroactively to the facts of this case and, if not, whether the limitative effects of the pre-аmendment version of
II.
When interpreting provisions of the Worker‘s Compensation Act, the history and policy provisions of the worker‘s compensation movement must be taken into account. Roberts v. Sewerage and Water Bd. of New Orleans, 92-2048 (La. 3/21/94); 634 So.2d 341, citing 1 W. Malone & H. Johnson, Worker‘s Compensation, § 35 (13 Louisiana Civil Law Treatise 2d ed. 1980) (hereafter, “Malone & Johnson“). In the early decades of this century, the dominant purpose of the movement to adopt сompensation laws was not to abrogate existing tort remedies that afforded protection to workers, but to provide social insurance to compensate victims of industrial accidents. Id. See Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir.1979), writ den., 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47 (1979). Worker‘s Compensation laws were adopted as a compromise between two contending forces—labor, which generally favored reform, and employers, who generally opposed it. Roberts v. Sewerage and Water Bd. of New Orleans, 634 So.2d at 345. In the compromise, employees exchanged a set of common law remedies of dubious value for modest workеrs’ compensation benefits designed to keep the injured employee and their family from destitution. Roberts v. Sewerage and Water Bd. of New Orleans, 634 So.2d at 345, citing Boggs v. Blue Diamond Coal Co., 590 F.2d at 659. The compromise obligates the employer to surrender its immunity against liability when
In Roberts v. Sewerage and Water Bd. of New Orleans, supra, this court recounted the basic principles our courts should utilize when interpreting the coverage and immunity provisions of our Worker‘s Compensation Act:
Because workers’ compensation benefits have lagged far behind the expansion of liability and the curtailment of tort defenses, courts have responded by liberally construing the coverage provisions of workers’ compensation acts while narrowly construing the immunity provisions. This approach has been justified as follows:
(T)here is no strong reason of compensation policy for destroying common law rights ... [and] every presumption should be on the side of preserving those rights, once basic compensation protection has been assured.... The injured employee has а right to be made whole—not just partly whole.... [A]ll the reasons for making the wrong-doer bear the costs of his wrongdoings still apply, including the moral rightness of this result as well as the salutary effect it tends to have as an incentive to careful conduct and safe work practices.
Boggs, 590 F.2d at 660 (quoting 2A Larson, The Law of Workmen‘s Compensation § 72.50 at 14-95 (1976)). In light of this basic history and policy, we agree with the foregoing authorities that every presumption should be on the side of preserving the general tort or delictual rights of an injured worker against the actual wrongdоer, in the absence of explicitly statutory language limiting or excluding such rights.
634 So.2d at 346. (emphasis added)
We must, therefore, approach the issue presented in this case by liberally construing the coverage provisions of the Worker‘s Compensation Act, while narrowly construing the immunity provisions.
III.
Louisiana‘s dual capacity theory or doctrine pertains to employers with multiple relationships, connections or involvement to the employee‘s injury and/or the cause of the injury, which ordinarily would result in liability being imposed upon the employer by operation of law in addition to the provisions of the Worker‘s Compensation Act. The dual capacity doctrine limits the injured employee‘s recovery to worker‘s compensation benefits, precluding the pursuit of their tort claims against their employer. For example, Deagracias v. Chandler, 551 So.2d 25 (La. App. 4th Cir.1989) [the employee attempted to sue his employer in products liability, when he was injured in the course and scope of his employment while using a backhoe bucket manufactured by the employer; the tort suit was rejected based upon the employment status of the claimant]; White v. Naquin, 500 So.2d 436 (La.App. 1st Cir.1986) [the tort suit of a school board employee, injured during the course and scope of employment, against the school board as custodian of the minor student who caused the injury, was rejected based upon the employment status of the claimant]; Wright v. Moore, 380 So.2d 172 (La.App. 1st Cir.1979), writ. den., 382 So.2d 164 (1980) [the employee of the state, injured during the course and scope of employment in a state owned automobile, driven by a state employee on a state roadway, was prohibited from maintaining a tort suit against the state for it bеing the custodian of the state‘s roads and highways]. See also 2 W. Malone & H. Johnson, Worker‘s Compensation, § 386, at 257 (14 Louisiana Civil Law Treatise 3d ed. 1994) (hereafter, “Malone & Johnson 3d ed.“). But see Ducote v. Albert, 521 So.2d 399 (La.1988) [this court employed a common law, hybrid form of the dual capacity doctrine to hold a company physician liable for breach of the duty he owed his patient as a medical professional].
Thus, the Third Circuit‘s observation that “Louisiana courts have consistently refused to recognize the tort liability of employers under any dual capacity theory or doctrine,” refers to those situatiоns where the law would impose liability on an employer
Therefore, application of Louisiana‘s traditional dual capacity doctrine to the facts of this case would not preclude the Stelly‘s tort suit against UPS.
IV.
UPS contends that
At the time of Stelly‘s accident,
The rights and remedies herein granted to an employee or his dependent on account of any 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, 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.
By Act 454 of 1989, effective January 1, 1990, the legislature amended this statute to exclude all claims by an employee, including claims under any dual capacity theory or doctrine. As amended, the pertinent portions of
A. (1)(a) 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 rеlations, 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.
(b) This exclusive remedy is of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine. (emphasis added)
When determining whether a statute should apply retrospectively, courts are initially required to ascertain the legislature‘s intent regarding the retrospective or prospective application of the statute. See St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (1992). However, as the legislature did not express that it intеnded for Act 454 of 1989 to have retrospective application, this court must classify the statute as either substantive, procedural or interpretive legislation. Rousselle v. Plaquemines Parish School Bd., supra, citing St. Paul Fire & Marine, supra, and Cole v. Celotex Corp., 599 So.2d 1058 (La.1992).
A substantive law creates, confers or destroys rights, causes of action or legal duties. A procedural law prescribes methods for enforcing substantive laws, and
Applying these preсepts to Act 454 of 1989, the legislation is not interpretive or procedural as it does not establish the meaning of
The Stellys’ cause of action accrued on the date of Stelly‘s accident, December 17, 1987. Act 454 of 1989, however, did not become effective until January 1, 1990. Act 454 of 1989 can not be applied retroactively to this case because it would effectively divest the Stellys of their vested rights and such a result can not be allowed. Cf. Putzey‘s v. Schreiber, 576 So.2d 563 (La.App. 4th 1991), writ den., 578 So.2d 932 (La.1991). Therefore, the pre-amendment version of
V.
Although the rights of an injured employee to recover against his employer is generally limited to worker‘s compensation benefits, the employee maintains his right to sue a negligent or strictly liable third party in tort. See Gauthier v. O‘Brien, 618 So.2d 825 (La.1993).
When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee‘s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, compensable sickness or disease.
Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover
any amount which he has paid or become obligated to pay as compensation to such employee or his dependents. (emphasis added)
Normally, the owner of a building remains liable for the condition of the building, and for any resulting injuries arising therefrom, even when it is leased. See
The Stellys insist that the lease agreement between Ortego and UPS contеmplates UPS‘s broad assumption of any possible liability claims that could be asserted against Ortego. They suggest that any liability on the part of the landowner, pursuant to the strict liability theories of
The lease agreement between Ortego and UPS was confected pursuant to
”expressly relieves [the] landowner of any and all liability for injuries or damages caused by any vice or defect of the leased premises to any occupant or to anyone in or on the leased premises ... [and] expressly assumes all such liability agreeing to indemnify lessor and hold the lessor harmless for any damages or injuries to any person or persons whomever ... arising out of the use or condition of the leased premises.” (emphasis added)
Thе lease agreement, which provides for mutual obligations, is the law between Ortego and UPS. It also has the effect of law even as to third persons who are not parties to the agreement. See Davis v. Copeland Enterprises, 390 So.2d 891 (La.1980). There are no limitations in
Parties are free to contract for any lawful cause.
Under the terms of the lease agreement, UPS expressly assumed responsibility for the condition of the leased premises and for any and all liability resulting from defects in the leased premises. Yet, UPS seeks to benefit from the statutory immunity in
Louisiana law designates that building owners are strictly liable for the damages and injuries caused by their buildings. See
Thus, through the confection of their lease, Ortego and UPS could not and did not create a void in the law. When UPS contractually assumed Ortego‘s owner‘s liability, it included the legal duties and liability Ortego owed to the Stellys for the condition of the building. Therefore, the limitative effects of the pre-1990 version of
Reviewing UPS‘s motion for summary judgment in light of the foregoing legal precepts, wе find the trial court erred as a matter of law in granting the motion. Based upon the provisions of
DECREE
For the reasons assigned, the judgments of the trial court and court of appeal are reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. All costs incurred in connection with the motion for summary judgment are assessed to UPS. Assessment of all other costs shall await the final outcome of this litigation.
REVERSED AND REMANDED.
LEMMON, J., concurs.
HALL, J., dissents.
CALOGERO, C.J., dissents and will assign reasons.
I beliеve that a fair reading of the immunity accorded employers by