Bazley v. Tortorich, 67318

• Decision Date: 26 February 1981
• Docket Number: No. 67318,67318
• Citation: 397 So.2d 475
• Parties: Sidney BAZLEY v. Sordo TORTORICH, Aetna Life and Casualty Co., and Fireman's Fund Insurance Companies.
• Court: Louisiana Supreme Court

Page 475

397 So.2d 475

Sidney BAZLEY v. Sordo TORTORICH, Aetna Life and Casualty Co., and Fireman's

Fund Insurance Companies.

No. 67318.

Supreme Court of Louisiana.

Feb. 26, 1981.

Melvin W. Mathes, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendant-applicant.

Steven M. Koenig, Heisler, Wysocki & deLaup, John J. McCann, McCann and Volk, New Orleans, for plaintiffs-respondents.

Mark C. Suprenant, Thomas J. Wyllie, Adams & Reese, New Orleans, Charles Hanemann, Henderson, Hanemann & Morris, Houma, John C. Combe, Jr., John G. Gomila, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Randall G. Wells, Avant, Wall, Thomas, Riche & Falcon, Baton Rouge, Marvin C. Grodsky, Melvin W. Mathes, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, Felix R. Weill, Robert L. Roland, Watson, Blanche, Wilson & Posner, Baton Rouge, Wayne Shullaw, Harmon F. Roy, Mouton, Roy, Carmouche, Bivins & Kraft, Lafayette, amicus curiae.

DENNIS, Justice.

This case presents the question of whether the worker's compensation statute, La.R.S. 23:1032 as amended by Act 147 of 1976, constitutionally makes compensation an employee's exclusive remedy for a work-related injury caused by a co-worker, except for a suit based on an intentional tort. The trial court sustained an exception of no cause of action to plaintiff's suit against his fellow employee because he alleged that the co-worker was guilty of negligence and not an intentional tort. The court of appeal reversed, holding that, to afford due process and equal protection of the laws, the worker's compensation statute, as amended, must be interpreted to permit an employee the same remedy in tort against co-employees for negligently caused work-related injuries as he would have if injured by any other tortfeasor. We reverse the judgment of the court of appeal. The worker's compensation statute was amended by Act 147 of 1976 to preclude suits by an employee to recover for work-related injuries from certain designated persons, including a fellow employee engaged at the time of injury in the normal course and scope of employment, unless his injury resulted from the co-worker's intentional tortious act. The 1976 amendment does not deprive the plaintiff of due process of law, equal protection of law or access to the judicial process. It was duly adopted in accordance with the Louisiana constitution.

Plaintiff, Sidney Bazley, a Jefferson Parish garbage worker filed suit against an unidentified co-employee truck driver, the co-employee's insurer, Sardo Tortorich and Tortorich's insurer as result of work-related injuries Bazley received when he was struck by Tortorich's car while he was mounting the back of a parish garbage truck. In his petition, as supplemented and amended, Bazley alleged that the accident was caused by his co-employee's intentional acts in operating a garbage truck without a working horn, disregarding mechanical and electrical maintenance standards, failing to keep a lookout, failing to see what he should have seen, failing to stop in a safe place and failing to warn plaintiff of danger. Bazley did not allege, however, that the co-employee desired the consequences of his acts or believed that they were substantially certain to follow his acts.

The trial court sustained an exception of no cause of action to Bazley's suit against the garbage truck driver on the ground that it constituted a negligence action against a co-employee based on a work-related injury in contravention of the exclusive remedy rule of the Compensation Act. The court of appeal reversed holding that compensation is an employee's exclusive remedy against his employer but the statute constitutionally cannot be interpreted to bar his suit in tort against other persons. 380 So.2d 727 (La.App. 4th Cir. 1980). We granted certiorari. 383 So.2d 1263 (1980).

La.R.S. 23:1032, as amended by Act 147 of 1976, in pertinent part, provides:

"The rights and remedies herein granted to an employee ... on account of an injury ..., shall be exclusive of all other rights and remedies ... against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal "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.

"The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section."

We are called upon to decide (1) whether La.R.S. 23:1032, as amended, prevents an injured employee from seeking recovery in tort for a work-related injury negligently caused by his co-employee; and, if so, (2) whether the legislature may constitutionally expand the exclusive remedy rule to bar negligence actions by employees against tortfeasors other than employers.

1.

The exclusive remedy rule prevents an employee from seeking recovery in tort for a work-related injury negligently caused by his co-employee.

By Act 147 of 1976 the legislature enlarged the category of employee injuries for which workers' compensation is the exclusive remedy. Formerly, the workers' compensation statute provided that compensation was an employee's exclusive remedy against his employer for a compensable injury, leaving him free to pursue other remedies against third persons. The amendment modified the exclusive remedy rule in two respects. First, it provided that for an unintentional injury compensation shall be the exclusive remedy, not only against the employer, but also against any principal, officer, director, stockholder, partner ¹ or employee of the employer or principal who was engaged at the time of the injury in the normal course and scope of his employment. Second, it provided that for an intentional act resulting in compensable injury the employee may exercise his right under the compensation act and pursue any other remedy available against the employer and other persons under general law.

The principal legislative aim of the 1976 amendment was to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict. Although the legislative history is meager, accounts indicate that the amendment was enacted to provide employers relief from the cost of furnishing liability insurance to executive officers and other employees. Malone & Johnson, Workers' Compensation, § 364 in 14 Louisiana Civil Law Treatise 155 (2d ed. 1980); The Work of the Louisiana Legislature for the 1976 Regular Session, 37 La.L.Rev. at 182 (1976). Before the amendment, the absence of a prohibition against tort suits against co-employees allowed injured workers to seek tort recovery from negligent executive officers and their liability insurers. E. g., Canter v. Koehring Co., 283 So.2d 716 (La.1973); Berry v. Aetna Cas. & Surety Co., 240 So.2d 243 (La.App.2d Cir. 1970), cert. denied 256 La. 914, 240 So.2d 374, cert. denied 401 U.S. 1005, 91 S.Ct. 7255, 28 L.Ed.2d 541 (1971). This avenue of recovery provoked considerable critical comment. Comment, 33 La.L.Rev. 325 (1973); Note, 34 La.L.Rev. 141 (1973); Note, 46 Tul.L.Rev. 352 (1971); The Work of the Louisiana Appellate Courts, 1973-74 Term Insurance, 35 La.L.Rev. 415, 419 (1975). It was argued that, since the employer's enterprise would in the end pay for the tort remedy, either directly or through insurance premiums for officers and employees, the result would be a denial to the employer of much of the practical advantage of the exclusive remedy provision. W. Malone, Louisiana Workmen's Compensation Law and Practice, 1964 Supp. § 366 (1st ed. 1951). It was apparently for this reason that the legislature acted to close this avenue of recovery by adopting Act 147 of 1976.

In abolishing the executive officer suit, however, the legislature provided that the exclusive nature of the compensation remedy does not apply to intentional acts. After considering broader penalties that would have provided double benefits for an employer's violation of a safety rule, failure to provide a safety device required by law, or gross negligence on the part of a supervisory employee, which caused injury, death or disease, Official Journal of the House of Representatives, June 4, 1976, H.B. 354, p. 20, our legislature chose to impose a sanction for intentional wrongs by making the exclusive remedy rule inapplicable to such acts. Because of the general practice of severely punishing intentional wrongdoers, which is widely accepted in the field of workers' compensation, because of the received meaning and acceptance of the statutory language, and considering the object of the legislation, we conclude that the words "intentional act" mean the same as "intentional tort" in reference to civil liability.

In drawing a line between intentional and unintentional acts we believe the legislative aim was to make use of the well established division between intentional torts and negligence in common law. See W. Prosser, Law of Torts, §§ 7, et seq. (4th ed. 1971). The lawmakers probably perceived this distinction as entirely consistent with the division in civil law between offenses, which require an intention to injure, and quasi offenses, damages caused without intention to harm. See 2 M. Planiol, §§ 815, 823, 825, 827, Civil Law Treatise (11th ed. La.St.L.Inst. trans. 1959). Universally, harmful conduct is considered more reprehensible if intentional. As Holmes said, "Even a dog distinguishes between being stumbled over and being kicked." Holmes, The Common Law, 3 (1...