26,161 La.App. 2 Cir. 10/26/94, Hunt Plywood, Inc. v. Estate of Davis
| Decision Date | 26 October 1994 |
| Citation | 645 So.2d 248 |
| Parties | 26,161 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Gold, Weems, Bruser, Sues & Rundell by Peggy D. St. John, Alexandria, for appellant.
Broussard, Bolton, Halcomb & Vizzier by Roy S. Halcomb, Jr., Alexandria, for appellee, Tracy Bowens.
Neblett, Beard & Arsenault by William Neblett, Alexandria, for appellee, Jerome Davis.
Roy & Pucheu by W. Jay Luneau, Alexandria, for appellee, Sandra Nash-Jones.
Before HIGHTOWER and STEWART, JJ., and JONES, J. Pro Tem.
In these consolidated worker's compensation cases, the employer appeals a judgment declaring two illegitimate children partially dependent and awarding death benefits, together with penalties and attorney's fees. The minors' mothers answer, asserting several additional errors. We amend and affirm in part, and reverse in part.
On November 28, 1991, Dylon Davis died in a work accident while employed with Hunt Plywood Company, Inc. Initial investigation by the employer's claims adjuster, F.A. Richard & Associates ("Richard"), disclosed two surviving parents, viz., Jerome Davis and Alysa Davis. Although the father indicated that the decedent had no dependents, further inquiry revealed that Dylon procreated two children, Quatoria Bowens and D'Andre Jones, each slightly over a year old at the time of the accident and born approximately two months apart. An investigator then interviewed one of the mothers in March and the other in May, determining that neither had been married to Dylon and that he extended them only limited support. Actually, he had never been married.
Confronted with demands from Dylon's parents, in addition to potential claims by both of the young mothers, the employer filed a petition with the Office of Worker's Compensation on September 18, 1992, seeking a declaratory judgment as to which of the competing claimants should receive the disbursements. Jerome Davis and the youngsters' mothers all reconvened, averring Hunt's refusal to make timely payments. Subsequent amendments on behalf of the minors challenged the constitutionality of the parental lump sum provisions of LSA-R.S. 23:1231 and attempted to reserve wrongful death claims should neither child be found dependent. Later, against any award in favor of Dylon's parents, Hunt sought reimbursement for its funeral expenditures exceeding the statutory maximum.
After trial, the administrative hearing officer found Quatoria and D'Andre to be partial dependents of Dylon, awarded $79.00 per month to each mother on behalf of the children, excluded the decedent's parents from any death benefits, and denied Hunt's reimbursement claim. Additionally, the adjudicator awarded $2,000 in penalties, to be divided equally among the three reconvening parties, and $2,500 in fees directly to each of their attorneys. Through motions for new trial, the mothers of the minors sought to amend the judgment to provide the sum of $79 per week, the statutory minimum, and to add legal interest to the awards. After denying the motions, the hearing officer granted the requested relief by issuing a "Supplemental and Amended Judgment." Hunt's suspensive appeal ensued and both mothers answered.
Hunt maintains that the hearing officer erred in awarding, in favor of the two mothers, death benefits on behalf of the children. It first asserts that neither woman had been properly appointed as a tutor, and, next, that the finding of partial dependency constitutes manifest error. In answer, appellees contend that the youngsters should have been found "wholly" dependent upon their father.
We reject Hunt's first argument that neither mother is a "duly qualified" or "duly appointed" tutrix, as mentioned in LSA-R.S. 23:1234 and 23:1235. Such a complaint, actually embodying a dilatory exception of lack of procedural capacity, must be pled prior to an answer or judgment by default. LSA-C.C.P. Arts. 926, 928; Bordelon v. Safeway Ins. Co., 380 So.2d 1379 (La.App. 3d Cir.1980), writ denied, 384 So.2d 799 (La.1980). Our law, by demanding an early filing of such objections, affords the opposing party an opportunity to correct the procedural deficiency during initial stages of the proceedings. See, e.g., Cacibauda v. Gaiennie, 305 So.2d 572 (La.1974), where a mother mooted such an exception by qualifying as a natural tutrix under LSA-C.C.P. Art. 4061. In the present matter, with appellant having raised this issue for the first time on appeal, we find it improperly before us and accordingly waived.
As indicated, Hunt also complains that the hearing officer erred in finding both minors partially dependent upon their father, while the two mothers argue that each child should have been found totally dependent. Neither position, however, is meritorious.
In that the children did not live with their father at the time of his death and thus do not benefit from the conclusive presumption of dependency established by LSA-R.S. 23:1251, it is their burden to prove actual dependency. Lumberman's Underwriting Alliance v. Teague, 521 So.2d 820 (La.App.2d Cir.1988). Actual dependency shall be determined in accordance with the factual circumstances existing at the time of the accident and death. LSA-R.S. 23:1252; Hurks v. Bossier, 367 So.2d 309 (La.1979). However, a showing of actual dependency does not require proof that the claimant would have lacked the necessities of life without decedent's contributions, but only that the claimant relied upon the received monetary allowance to maintain his or her accustomed standard of living. Hurks, supra; Winn v. Thompson-Hayward Chem. Co., 522 So.2d 137 (La.App.2d Cir.1988); Ford v. Plain Dealing Charcoal Co., Inc., 457 So.2d 130 (La.App.2d Cir.1984).
After actual dependency has been shown, the question becomes whether the claimant totally or partially relied upon the decedent's assistance. Moore v. Millers Mut. Fire Ins. Co. of Texas, 406 So.2d 708 (La.App.2d Cir.1981), writ denied, 410 So.2d 1132 (La.1982). Total dependency exists where an individual relies, for support, entirely upon contributions from the deceased employee. However, where that aid is only one of several sources from which the claimant derives support, the dependency will be classified as only partial. Id.; Malone and Johnson, 14 Louisiana Civil Law Treatise--Worker's Compensation Law and Practice § 310 (2d ed. 1980).
Dependency, of course, is a question of fact. Lumberman's, supra. Thus, the hearing officer's findings should not be disturbed on appeal absent manifest error or clear wrongness, even where a conflict in the evidence exists. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992); Manson v. City of Shreveport, 577 So.2d 1167 (La.App.2d Cir.1991), writ denied, 580 So.2d 928 (La.1991); Lumberman's, supra.
Testimony from the two mothers, as well as friends and relatives, reveals a similar pattern of support by Dylon with regard to each infant. It is disclosed that he formally acknowledged Quatoria, in addition to visiting with the child and keeping her overnight several times monthly. The mother, Tracy Bowens, and several other witnesses stated that on a weekly basis the decedent bought diapers, medicine, and other items for his daughter. He regularly gave cash to Bowens to assist with purchases for the child. The hearing officer determined that his contributions totaled an estimated $200 per month. Nevertheless, Quatoria also benefited from food stamps, Medicaid, money from her grandparents, social security, and other payments received by her two older siblings.
In August 1991, a consent judgment directed Dylon to pay $125 per month to the Louisiana Department of Social Services, commencing on September 15, 1991, for the support of Quatoria. In brief, Hunt emphasizes that the father never complied with that decree. His usual contributions continued, however, according to the mother, who did not report this aid to the welfare agency in order that the infant could remain Medicaid qualified. While not condoning such misrepresentations, we comprehend the hearing officer's apparent acceptance of Bowens's explanation.
Testimony by Sandra Nash-Jones, the mother of the other child, revealed similarly limited support. Dylon, on his own, purchased and delivered certain items to her and, upon request, would provide money for specific acquisitions. He apparently visited his son almost daily, and the hearing officer approximated his financial aid at $150 per month. Still, D'Andre received far greater assistance from other sources, including monthly AFDC payments, food stamps, allowances from his grandmother, and the fact that his mother lived in her parents' home without paying rent except during a short period.
Hunt correctly observes that its employee failed to declare the children as dependents on his income tax and health insurance forms, and that the testimony of Jerome Davis reflected a total unawareness that his son had any children. Even so, the documents in question had been completed prior to the two births. Further, the record does not clearly establish a close relationship between Dylon and his father. After his parents divorced some twenty years earlier, the young man lived with Jerome Davis while attending college prior to August 1989. Thereafter, they visited about every other month and engaged in occasional telephone conversations.
Appellant also asserts that, when the two mothers initially gave statements to the investigator, they both disclosed that they did not actually depend on Dylon for contributions. While it is true that Bowens's out-of-court revelations indicated no "support" had been "started" by the father, she later testified that she misunderstood the pertinent question to concern only compliance with the consent decree. Similarly, Nash-Jones responded...
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