Opinion
2020 CA 0278
03-29-2021
Glenna Boykin ROWLAND v. BASF
Scott R. Bickford, Lawrence J. Centola, III, Jason Z. Landry, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant, Glenna Boykin Rowland Michael E. Parker, Lafayette, Louisiana, Attorney for Defendant/Appellee, BASF
Scott R. Bickford, Lawrence J. Centola, III, Jason Z. Landry, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant, Glenna Boykin Rowland
Michael E. Parker, Lafayette, Louisiana, Attorney for Defendant/Appellee, BASF
BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.
PENZATO, J.
Appellant, Glenna Boykin Rowland, filed this appeal contesting the trial court's sustaining of the exception raising the objection of prescription filed by appellee, BASF, and dismissing with prejudice Ms. Rowland's claim for death benefits pursuant to La. R.S. 23:1231 et seq. For the following reasons, we reverse the judgment.
FACTS AND PROCEDURAL HISTORY
On December 26, 2018, Ms. Rowland filed a workers’ compensation disputed claim for death benefits pursuant to La. R.S. 23:1231(A) following the death of her husband, Lawrence Rowland, on July 27, 2018. She alleged that Mr. Rowland was exposed to asbestos on a daily basis while working for BASF from approximately 1969-1989. Mr. Rowland worked around asbestos most of his work life. Beginning in 1957, Mr. Rowland was in the United States Navy for three years and worked for Arkansas Chemical for nine years. During these years, he believed he was exposed to asbestos. In 1969, Mr. Rowland began working for Wyandotte, the predecessor to BASF, at the Geismar, Louisiana plant. He believed he was exposed to asbestos while at BASF until he ceased employment there in 1989. From the summer of 1992 until 1995, Mr. Rowland was employed by El Dorado Chemical and was exposed to asbestos.
In both 2001 and 2003, Mr. Rowland was diagnosed with occupationally related asbestosis. Following the diagnoses, Mr. Rowland joined as a plaintiff in asbestosis litigation in Arkansas, eventually settling with numerous companies. Mrs. Rowland subsequently filed this claim against BASF seeking death benefits after Mr. Rowland passed away in Louisiana.
BASF filed a pleading titled "Exception of Prescription and/or Motion for Summary Judgment," alleging that Ms. Rowland's claim was prescribed under La. R.S. 23:1031.1 or that the right to workers’ compensation benefits had been forfeited. Both the exception of prescription and the motion for summary judgment were heard by the Office of Workers’ Compensation (OWC) on October 7, 2019. After taking the matter under advisement and requesting post-trial briefs, on January 15, 2020, the OWC signed a judgment sustaining the exception raising the objection of prescription, denying the motion for summary judgment as moot, and dismissing Ms. Rowland's claim with prejudice. It is from this judgment that Ms. Rowland appeals.
LAW AND DISCUSSION
Ms. Rowland asserts that the OWC erred in sustaining BASF's exception raising the objection of prescription for her claim of death benefits, finding that her claim was derivative of her husband's cause of action, and finding because her husband's claim is prescribed pursuant to La. R.S. 23:1031.1, that her claim for death benefits is also prescribed.
When evidence is received at the trial of the exception of prescription, the appellate court reviews the district court's factual findings under the manifest error standard. However, in a case involving no dispute regarding material facts, only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the district court's legal conclusions are not entitled to deference. Shannon v. Vannoy , 2017-1722 (La. App. 1st Cir. 6/1/18), 251 So. 3d 442, 449.
BASF asserts that Ms. Rowland's claim for death benefits has prescribed. Ms. Rowland contends that her claim is not prescribed since she complied with La. R.S. 23:1031.1(F) and filed her disputed claim for death benefits on December 26, 2018, within one year of Mr. Rowland's July 27, 2018 death. BASF argues that the issue is not whether Ms. Rowland filed her claim within one year of Mr. Rowland's death, but whether Mr. Rowland's claim for workers’ compensation is prescribed, and therefore, Ms. Rowland's claim must be prescribed. BASF maintains that the disability claim and death benefits claim are derivative, and because Mr. Rowland did not make a claim for disability benefits within the period provided by La. R.S. 23:1031.1(E), Ms. Rowland's claim for death benefits under La. R.S. 23:1031.1(F) is prescribed.
The applicable prescriptive period for claims for occupational diseases is provided by La. R.S. 23:1031.1. Borja v. FARA , 2016-0055 (La. 10/19/16), 218 So. 3d 1, 7. Louisiana Revised Statutes 23:1031.1 provides, in pertinent part:
A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
* * *
E. All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(1) The disease manifested itself.
(2) The employee is disabled from working as a result of the disease.
(3) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
F. All claims for death arising from an occupational disease are barred unless the dependent or dependents as set out herein file a claim as provided in this Chapter within one year of the date of death of such employee or within one year of the date the claimant has reasonable grounds to believe that the death resulted from an occupational disease.
The OWC agreed with BASF's argument and issued written reasons, finding that Ms. Rowland's claim for death benefits was prescribed under La. R.S. 23:1031.1 because Mr. Rowland's claim for disability benefits was prescribed "under that statute." The OWC stated that Ms. Rowland could not receive death benefits if Mr. Rowland was not receiving workers’ compensation benefits. Although written reasons form no part of the judgment, an appellate court can consider the reasons for judgment in determining whether the district court committed a legal error. Kunow v. Louisiana Dep't of Public Safety & Corr. , 2018-0608 (La. App. 1st Cir. 11/5/18), 258 So. 3d 917, 920.
The cases relied upon by the OWC pertained to whether an employee's compromise and settlement of a workers’ compensation claim prior to death precluded the statutory dependents’ claims for death benefits. White v. Robinson Lumber Co ., 2005-0923 (La. App. 4th Cir. 3/29/06), 929 So. 2d 231, 239, writ denied, 2006-0848 (La. 6/2/06), 929 So. 2d 1262, stated that a claim for death benefits is not separate and apart from a claim for workers’ compensation because the claim does not come into existence until someone is injured on the job and subsequently dies of those injuries while collecting workers’ compensation benefits. The court analyzed the settlement agreement language and determined that the decedent intended to waive his dependents’ claims for death benefits as part of his settlement. White , 929 So. 2d at 239. Both Price v. Johns-Manville Sales Corp. , 450 So. 2d 758, 759 (La. App. 5th Cir. 1984), and Condoll v. Johns-Manville Sale Corp. , 448 So. 2d 169, 173 (La. App. 5th Cir. 1984), concluded that the purpose of La. R.S. 23:1231 was to provide for death benefits to the dependents of an injured employee where the injured employee died prior to any compromise or adjudication of the compensation claim. The court in Price specifically stated that following a settlement, there is no longer a right to compensation benefits by either the employee or the dependent unless the compromise judgment can be set aside for fraud, misrepresentation or failure to comply with the compromise procedures of the act. Price, 450 So. 2d at 759.
White, Price, and Condoll all pertained to whether an employee could compromise a dependent's claim prior to death. As such, we find all three cases to be distinguishable from the present case. None of the cases relied upon by the OWC are dispositive of the issue of whether a death benefits claim has prescribed when no disability claim was timely filed. The present case is governed by La. R.S. 23:1031.1, a prescriptive statute. We note the difference between prescriptive and peremptive periods. Prescription is a mode of barring of actions as a result of inaction for a period of time. La. C.C. art. 3447. Peremption is a period of time fixed by law for the existence of a right, and unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. In distinguishing between prescriptive periods and peremptive periods, this court has explained that a peremptive statute totally destroys the previously existing right with the result that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced. OXY USA Inc. v. Quintana Prod. Co. , 2011-0047 (La. App. 1st Cir. 10/19/11), 79 So. 3d 366, 379, writ denied , 2012-0024 (La. 3/2/12), 84 So. 3d 536. While prescription prevents the enforcement of a right by legal action, but does not terminate the natural obligation, peremption extinguishes or destroys the right. Bel v. State Farm Mutual Automobile Insurance Co ., 2002-1292 (La. App. 1st Cir. 2/14/03), 845 So. 2d 377, 380, writ denied , 2003-0733 (La. 5/30/03), 845 So. 2d 1057 ; see Glisan v. Eaton , 2009-758 (La. App. 3rd Cir. 2/10/10), 30 So. 3d 1150, 1152, writ denied, 2010-0578 (La. 5/21/10), 36 So. 3d 233 (stating tolling of peremption extinguishes the right sought to be exercised, whereas prescription merely limits the time within which one may exercise the right).
The OWC also based its decision on La. R.S. 23:1236, which states:
Where payments of compensation have been made to the employee before his death, the compensation for dependents as provided for in this Subpart shall begin on the date of the last of such payments.
The record before us does not demonstrate that any payments were made to Mr. Rowland by BASF before his death, because no claim for compensation was filed. Therefore, La. R.S. 23:1236, the purpose of which is to continue compensation to a dependent after the death of an employee who is receiving compensation at his death, is not applicable in the present case.
It is undisputed that Ms. Rowland filed her death benefits claim within one year of Mr. Rowland's death pursuant to La. R.S. 23:1031.1(F). While BASF argues that Mr. Rowland was required to make a disability claim pursuant to La. R.S. 23:1031.1(E) to prevent the running of prescription of Ms. Rowland's death benefits claim pursuant to La. R.S. 23:1031.1(F), we find no explicit language in either La. R.S. 23:1031.1(E) or (F) requiring that an employee's disability claim be filed prior to the filing of a dependent's death benefits claim. BASF also relies on La. R.S. 23:1231(A), which provides:
For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.
BASF further argues that Ms. Rowland did not bring a claim within two years of Mr. Rowland's last treatment as required by La. R.S. 23:1231(A), and therefore, the death benefit claim is prescribed.
The interrelatedness of La. R.S. 23:1031.1 and La. R.S. 23:1231 was analyzed by Tran v. Avondale Shipyards, Inc ., 95-542 (La. App. 5th Cir. 11/15/95), 665 So. 2d 507, writ denied , 95-2993 (La. 3/8/96), 669 So. 2d 406. There, the court held that a cause of action for death benefits accrues upon the death of an injured party. Id. at 509. Therefore, "the cause of action for death benefits arises in favor of named dependents in La. R.S. 23:1231 when the employee dies." Id. (quotation omitted). The beneficiaries do not have a cause of action until the death of the worker. Id. (citing Ponthier v. Insurance Co. of North America , 522 So. 2d 188, 189 (La. App. 5th Cir. 1988) ); see Estate of Bell v. Timber , 28,333 (La. App. 2nd Cir. 5/8/96), 675 So. 2d 284, 286, writ denied , 96-1467 (La. 9/20/96), 679 So. 2d 435. The Tran court recognized that the dependents could not have instituted a cause of action for the death of the employee prior to the date he actually died. Id. The court further explained:
The requirement of [La.] R.S. 23:1231 that death occur within a specified time does not stipulate the delay within which a right is to be executed and does not limit the time within which the cause of action expires. Rather, the statute creates a right of action itself and defines its existence with reference to a specific time period within which death of the worker must occur. Accordingly, we find that it is neither a ‘prescriptive’ nor ‘peremptive’ period. Rather, as stated in W. [Ma]lone & H.A. Johnson, Workers’ Compensation Law and Practice, Section 302 (La.Civ.L.Tr. vol. 14 1980), it is ‘a condition precedent to the accrual of the right of action for the dependents...."
[Emphasis not in original].
Id. at 509-10 (quoting Estate of Williams v. Louisiana Office of Risk Management , 93-795, (La. App. 3rd Cir. 3/2/94), 634 So. 2d 1260, 1263-64, writ denied, 94-0793 (La. 5/6/94), 637 So. 2d 1054 ). The Tran court emphasized that "if the victim does not die, or dies more than two years after the last treatment, a cause of action under this section simply does not arise. " Tran , 665 So. 2d at 510. The provisions of La. R.S. 23:1231 create a cause of action for death benefits and "defines its existence with reference to a specific time period within which death of the worker must occur." Estate of Bell , 675 So. 2d at 286 (quoting Estate of Williams , 634 So. 2d at 1263 ). "Our Courts have consistently held that the provisions of [La. R.S. 23:] 1231 create a cause of action for death benefits. The death of the worker is a condition precedent to the creation of the cause of action." Payne v . Stable , 36,831 (La. App. 2nd Cir. 4/9/03), 843 So. 2d 1176, 1177, writ denied, 2003-1300 (La. 9/5/03), 852 So. 2d 1039 (citing Williams , 634 So. 2d at 1263-64 ; Tran, 665 So. 2d at 509 ; Estate of Dean v . K-Mart Corporation , 96-142 (La. App. 5th Cir. 7/30/96), 678 So. 2d 599, 601 ).
The Louisiana Supreme Court also recognized that pursuant to La. R.S. 23:1231, death benefits are recoverable only if an employee's death occurs within two years of the last treatment resulting from the accident by personal injury or occupational disease upon which the claim is based. Jonise v . Bologna Brothers , 2001-3230 (La. 6/21/02), 820 So. 2d 460, 462. This two-year time period is neither peremptive or prescriptive, but "is a condition precedent to the accrual of the right of action for the dependents." Id. (quoting H. Alston Johnson, III, 14 Louisiana Civil Law Treatise, Workers’ Compensation Law and Practice, Section 302, at 6 (1994) ). Thus, if an employee's death occurs within two years of the last treatment resulting from the work-related accident or occupational disease, the employee's dependents have a right of action for death benefits pursuant to La. R.S. 23:1231. Id. (citing Tran , 665 So. 2d at 510 ; Estate of Bell , 675 So. 2d at 286-87 ).
Jonise analyzed the interrelatedness of La. R.S. 23:1231 and La. R.S. 23:1209(A). Louisiana Revised Statutes 23:1209 addresses death from "personal injury," while La. R.S. 23:1031.1 addresses death from an occupational disease. Tran , 665 So. 2d at 510 n.2.
While neither party has directed this court to any cases interpreting the exact factual scenario presented in the instant case, Estate of Ehrhardt v. Jefferson Parish Fire Dep't , 2012-319 (La. App. 5th Cir. 1/30/13), 108 So. 3d 1223, analyzed a very similar situation. There, an employee filed a 2005 heart and lung claim for workers’ compensation against his employer. The parties reached a settlement, but the employee died prior to the OWC approving the documents. The employee's attorney voluntarily dismissed the 2005 claim without prejudice in 2009. Within two months of the dismissal, his estate filed a 2009 disputed claim for death benefits and unpaid medical bills, which was amended in 2011. The court determined that any claim for medical benefits had to be asserted within one year of diagnosis. Therefore, because the 2005 claims were voluntarily dismissed, the 2009 and 2011 claims for medical benefits were prescribed. Estate of Ehrhardt , 108 So. 3d at 1229. However, the court recognized that the death benefits sought in the 2009 claim pursuant to La. R.S. 23:1231 were recoverable if the employee's death occurred within two years of the last treatment resulting from the occupational disease. Estate of Ehrhardt , 108 So. 3d at 1233. Relying on the language in Jonise , the court held that the condition precedent of La. R.S. 23:1231 was satisfied. The court noted that in addition to the condition precedent, a dependent has one year from the date of the employee's death to file a claim for death benefits, which the plaintiff had satisfied. Therefore, the claim for death benefits was not prescribed even though the plaintiff was unable to maintain a claim for disability or medical benefits. Id.
At issue in this case was La. R.S. 23:1209(A), relating to personal injury, rather than La. R.S. 23:1031.1., relating to occupational disease.
Another factually similar situation was presented in Martin v. Anheuser-Busch, Inc ., 534 So. 2d 4 (La. App. 4th Cir. 1988), writ denied, 538 So. 2d 594 (La. 1989). The employee in Martin died without filing a workers’ compensation claim and prior to receiving any compensation benefits. His daughter filed a claim for death benefits more than two years from the injury, but within one year of his death. At the time of his death, La. R.S. 23:1231 entitled a dependent to death benefits, but only if the death occurred within two years of the injury. The court noted that the cause of action for death benefits arises in favor of dependents when the employee dies. Id. at 5-6. The court held that the claim of the daughter had not prescribed when the claim was filed within one year of the employee's death but more than two years from the injury, based upon the fact that the death benefit cause of action under La. R.S. 23:1231 does not come into existence until death. Id. at 6.
Louisiana Revised Statutes 23:1231(A) was amended by 1992 La. Acts, No. 431, § 1 to entitle a dependent to death benefits if the employee dies within two years of his last treatment.
Ms. Rowland filed her claim for death benefits within one year of Mr. Rowland's death as required by La. R.S. 23:1031.1 (F). Therefore, we are constrained to find that the exception of prescription was improvidently granted. The pertinent issue is whether the condition precedent contained in La. R.S. 23:1231 was satisfied, resulting in the accrual of a right of action in favor of Ms. Rowland for death benefits. The right of action for death benefits pursuant to La. R.S. 23:1231 is granted to only those dependents of an employee whose death occurs within two years of the last treatment resulting from the work-related accident or occupational disease. Jonise , 820 So. 2d at 462. Therefore, Ms. Rowland's right of action is dependent upon whether Mr. Rowland died within two years of the last treatment resulting from the occupational disease.
While the legislature may have intended that the worker have a viable workers’ compensation claim at the time of his death in order for his dependents to recover a death benefit under La. R.S. 23:1231(A), the statute does not impose this requirement. In the present case, it is undisputed that Mr. Rowland would have been barred from asserting a claim for workers’ compensation benefits against BASF under the provisions of La. R.S. 23:1031.1(E). However, BASF has failed to produce and we have been unable to find any statutory authority which would bar Ms. Rowland from filing a disputed claim for death benefits pursuant to La. R.S. 23:1231 (A). It is the duty of the legislature to craft laws, not the judiciary.
In discussing La. R.S. 23:1231, the courts have interchangeably referred to a right of action and a cause of action. see Estate of Bell , 675 So. 2d at 286 ; Ponthier , 522 So. 2d at 189 ; Tran , 665 So. 2d at 510. However, the Louisiana Supreme Court refers to an employee's dependent's having a right of action for death benefits pursuant to La. R.S. 23:1231 if the employee dies within two years of the last treatment resulting from the occupational disease. Jonise , 820 So. 2d at 462.
BASF did not file an exception raising the objection of no right of action. Rule 1-3 of the Uniform Rules—Courts of Appeal provides: "The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise." In Butler v. Jefferson Parish Fire Dep't , 2015-659 (La. App. 5th Cir. 2/24/16), 186 So. 3d 1231, 1234 n.3, the court declined to address the argument that the plaintiff's claim was not filed within two years of the last treatment for the employee's heart condition when the defendant filed an exception raising the objection of prescription, and the record was devoid of any pleadings raising the exceptions of no cause of action or no right of action.
We recognize that La. C.C.P. art. 927(B) authorizes either the trial court or appellate courts to sua sponte raise the exception of no right of action. Evidence may be introduced at the trial on the exception of no right of action, but not on the exception of no cause of action. La. C.C.P. art. 931. The function of an exception of no right of action is to determine whether the plaintiffs belong to the class of persons to whom the law grants the cause of action asserted in the suit. Eagle Pipe & Supply, Inc. v. Amerada Hess Corporation , 2010-2267 (La. 10/25/11), 79 So. 3d 246, 255 ; see also La. C.C.P. arts. 927(A)(6) and 1034. Whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Eagle Pipe and Supply, Inc ., 79 So. 3d at 256. However, when evidence is introduced to support or controvert an exception of no right of action, factual findings are reviewed under the manifest error standard. State ex rel. Caldwell v. Molina Healthcare, Inc. , 2018-1768 (La. 5/8/19), 283 So. 3d 472, 477.
The parties in the instant case have not had the opportunity to present evidence as to the right of action created by La. R.S. 23:1231. While BASF did introduce evidence in support of its motion for summary judgment, that evidence does not establish whether Mr. Rowland received treatment resulting from the occupational injury within two years of the date of his death that was related to the occupational disease. See La. R.S. 23:1231(A) and 23:1031.1 (A). Therefore, we decline to sua sponte raise the exception of no right of action or address whether Ms. Rowland had a right of action pursuant to La. R.S. 23:1231. See Rule 1-3 of the Uniform Rules—Courts of Appeal.
BASF also filed a motion for summary judgment. However, the OWC granted the exception raising the objection of prescription and found the motion for summary judgment moot. Therefore, no ruling was made by the OWC as to the motion for summary judgment, and this court is unable to address it.
CONCLUSION
For the above and foregoing reasons, the January 15, 2020 judgment sustaining the peremptory exception raising the objection of prescription and dismissing Glenna Boykin Rowland's case is reversed. All costs of this appeal are assessed to BASF.
REVERSED .
McDonald, J. concurs.