93 1013 La.App. 1 Cir. 4/29/94, Howard v. A & M Const. Co.

• Decision Date: 29 April 1994
• Citation: 93 1013 La.App. 1 Cir. 4/29/94, Howard v. A & M Const. Co., 637 So.2d 575 (La. App. 1994)
• Parties: 93 1013 La.App. 1 Cir
• Court: Court of Appeal of Louisiana

Page 575

637 So.2d 575

93 1013 La.App. 1 Cir. 4/29/94

Freddie L. HOWARD v. A & M CONSTRUCTION COMPANY.

No. 93 CA 1013.

Court of Appeal of Louisiana First Circuit.

April 29, 1994.

John B. Perry, New Orleans, for plaintiff-appellee Freddie L. Howard.

Pierre M. Legrand, Mandeville, for defendant-appellee A & M Const. Co.

Thomas E. Stirewalt, Jr., Metairie, for defendant-appellant Home Ins. Co.

Before CARTER, GONZALES and WHIPPLE, JJ.

[93 1013 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal in a worker's compensation case.

FACTS

On June 10, 1991, during the course and scope of his employment as a truck driver for A & M Construction Company (A & M), sixty-year-old Freddie L. Howard was injured when a trailer ramp fell on him, causing serious injuries. Home Insurance Company (Home), who was A & M's worker's compensation insurer, paid Howard weekly compensation benefits through December 6, 1991.

On December 16, 1991, Howard filed a claim for worker's compensation benefits with the Office of Worker's Compensation (OWC). On January 16, 1992, the OWC issued citations, accompanied by copies of the claim form/petition, to both A & M and Home. Service was effected on A & M and Home on January 22, 1992. On February 6, 1992, A & M filed an answer to Howard's petition and a third party demand against Home. In its third party demand, A & M requested indemnification from Home for any and all amounts for which A & M was cast in judgment to Howard, including benefits, penalties, attorney's fees, and reimbursement for any benefits A & M paid to Howard due to Home's termination of his benefits. On March 2, 1992, Home answered Howard's petition. ¹

On May 1, 1992, A & M filed a supplemental and amending third party demand, alleging that Home failed in its obligation to provide a defense to A & M in the worker's compensation proceeding and, therefore, was liable for all attorney's fees incurred by A & M in the defense of this proceeding. On May 28, 1992, A & M filed a motion for preliminary default against Home for its failure to answer the third party demand. On June 19, 1992, the hearing [93 1013 La.App. 1 Cir. 3] officer ordered that a preliminary default be entered against Home and set the confirmation hearing for June 24, 1992. ²

On June 24, 1992, trial on the principal demand and confirmation of the default judgment on the third party demand was held. Howard and A & M stipulated that, on June 10, 1991, Howard had an accident during the course and scope of his employment with A & M and that the accident was not the result of intentional acts by A & M. The parties further stipulated that Howard was entitled to weekly compensation benefits in the amount of $165.85. The parties also stipulated that Howard received the benefits from Home through December 6, 1991, but that, thereafter, Howard was not paid compensation benefits for a period of seven weeks. On January 24, 1992, A & M began paying Howard weekly benefits. Finally, the parties stipulated that Howard's past medical expenses were related to the accident, and the hearing officer determined that these medical expenses were reasonable and necessary medical fees covered under the Worker's Compensation Act. At the conclusion of the trial, the hearing officer took the matter under advisement.

The hearing officer determined that Howard was permanently and totally disabled. On July 6, 1992, the hearing officer rendered judgment in favor of Howard and against A & M and Home in solido for weekly compensation benefits, seven weeks of past due benefits, past medical expenses, expert witness fees, and future medical expenses for treatment of his back and leg. The hearing officer determined that Home was arbitrary and capricious in failing to pay Howard benefits and rendered judgment in favor of Howard against Home for statutory penalties and attorney's fees in the amount of $10,000.00. The hearing officer further determined that A & M had a valid worker's compensation policy with Home and that Home failed in its obligation to A & M. Accordingly, the [93 1013 La.App. 1 Cir. 4] hearing officer rendered judgment in favor of A & M against Home for indemnification for compensation benefits which A & M had paid to Howard, Howard's future compensation benefits, his past and future medical expenses, $10,000.00 for A & M's attorney's fees and costs, and A & M's future attorney's fees. The judgment and reasons for judgment both contain a hand written notation, indicating that copies of the judgment and reasons were sent to John Perry (attorney for Howard), Pierre Legrand (attorney for A & M), and Franklin Polk. ³

From this adverse judgment, Home appealed, assigning the following specifications of error:

1. The hearing officer failed to give Home proper notice of any of the important pre-trial events.

2. The hearing officer failed to give Home proper notice of the trial.

3. The hearing officer erroneously granted judgment in favor of A & M against Home.

4. The hearing officer erroneously granted judgment in favor of Howard against Home.

Both Howard and A & M answered the appeal, requesting additional attorney's fees.

PRINCIPAL DEMAND

Home contends that the hearing officer erred in rendering judgment in favor of Howard and against Home because Home did not receive notice of the pre-trial proceedings or of the trial date.

LSA-R.S. 23:1317A provides, in pertinent part, as follows:

If an answer has been filed within the delays allowed by law or granted by the hearing officer, or if no judgment has been entered as provided in R.S. 23:1316 at the time for hearing or any adjournment thereof, the hearing officer shall hear the evidence that may be presented by each party. Each [93 1013 La.App. 1 Cir. 5] party shall have the right to be present at any hearing or to appear through an attorney. The hearing officer shall not be bound by technical rules of evidence or procedure other than as herein provided....

Although LSA-R.S. 23:1317A provides that the hearing officer is not bound by technical procedural rules, the fundamental principles of procedure, such as reasonable notice, are applicable to a worker's compensation proceeding. See Jack v. International Paper Co., 56 So.2d 875, 878 (La.App. 2nd Cir.1952). When a defendant files an answer, he is entitled to notice of trial on the merits. Louisiana Hoop Company, Inc. v. Hood, 292 So.2d 808, 810 (La.App. 1st Cir.1974). Adequate notice is one of the most elementary requirements of procedural due process. Hicks v. Schouest, 381 So.2d 977, 978 (La.App. 4th Cir.1980). It is fundamental to our system of laws that there be notice prior to trial, except in extraordinary cases, such as executory process. Cook v. Matherne, 432 So.2d 1039, 1041-42 (La.App. 1st Cir.1983).

In the instant case, the record reveals that, on March 2, 1992, Attorney Jack E. Koch filed an answer to Howard's petition on behalf of Home. Koch's address and telephone number appear at the bottom of the pleading. On April 1, 1992, the OWC forwarded a "Pre-Trial Procedure Order" to counsel for Howard and A & M. On May 4, 1992, the OWC sent a "Notice of Trial" to counsel for Howard and A & M. However, the OWC failed to notify Home or Koch of the pre-trial matters or of the trial date. Consequently, Home was not represented at the trial on July 24, 1992.

The briefs indicate that, despite Home's claim that it did not receive notice of the trial date, attorney Franklin Polk (who is apparently "of counsel" to Koch's firm), was present on behalf of Home at the beginning of the trial, but departed prior to entering an appearance in the record. The only indication in the record that Polk was present at the hearing is a notation on the judgment that Polk was "[p]resent at the beginning of the hearing, [93 1013 La.App. 1 Cir. 6] but left." In reviewing this matter, we must rely solely on the record before us which fails to reveal that Polk made an appearance at the hearing on behalf of Home.

The record clearly reveals that Home filed an answer to the principal demand filed by Howard. Therefore, under LSA-R.S. 23:1317A, Home was entitled to receive notice of the pre-trial proceedings as well as the trial date. Because the OWC did not notify Home of the trial date, and, consequently, Home was not represented at the trial, Home's right to procedural due process was violated with regard to the principal demand against it. See Jones v. United States Fidelity, 596 So.2d 834, 836 (La.App. 4th Cir.1992).

However, our inquiry with regard to the propriety of the rendition of the judgment against Home and in favor of Howard does not end here. In its third party demand, A & M sought, among other things, a declaratory judgment declaring that Home owed Howard any and all worker's compensation benefits to which he was entitled. Therefore, we must determine whether the hearing officer's judgment with regard to the third party demand was proper.

THIRD PARTY DEMAND

Home also contends that the hearing officer erred in rendering a default judgment against Home on A & M's third party demand. Home argues that the judgment granted relief prayed for only in A & M's supplemental and amending third party demand on which it did not file a motion for preliminary default. In brief, Home argues:

No Motion for a Preliminary Default as to the First Supplemental & Amending Third-Party Demand was ever filed or granted. The most that the Trial Court should have done was to grant a default judgment in favor of A & M against Home for the relief prayed for in the "original" Third-Party Demand. However, the Trial Court went further than that. The judgment in favor of A & M is a combination of the relief prayed for in both the original and the supplemental demands. Home asserts that the allegations contained in the First [93 1013 La.App. 1 Cir. 7] Supplemental & Amending Third-Party Demand relate back to, and modify, the allegations in the original Third-Party Demand and the combination is too closely intertwined...