Bazley v. Tortorich

• Decision Date: 07 February 1980
• Docket Number: No. 10757,10757
• Citation: 380 So.2d 727
• Parties: Sidney BAZLEY v. Sordo TORTORICH, Aetna Life and Casualty Co., and Fireman's Fund InsuranceCompanies.
• Court: Court of Appeal of Louisiana — District of US

Page 727

380 So.2d 727

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

No. 10757.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 7, 1980.

Rehearing Denied March 17, 1980.

Steven M. Koenig, New Orleans, for plaintiff-appellant.

Beard, Blue, Schmitt, Mathes, Koch & Williams, Melvin W. Mathes, New Orleans, for Fireman's Fund Ins. Companies, defendant-appellee.

McCann & Volk, John J. McCann, New Orleans, amicus curiae on behalf of Academy of New Orleans Trial Lawyers.

Before GULOTTA, CHEHARDY and HOOD, JJ.

CHEHARDY, Judge.

This is a case in tort wherein Sidney Bazley sues Fireman's Fund Insurance Companies (the insurer of a co-employee of the plaintiff), Sordo Tortorich and his insurer (Aetna Life & Casualty Co.) for personal injuries sustained as a result of an accident.

The district court sustained the defendant Fireman's Fund's exception of no cause of action on the ground that Mr. Bazley's exclusive remedy is under the Louisiana Workmen's Compensation Act against this defendant. Plaintiff's suit, therefore, as to his co-employee's insurer, was dismissed; and he now appeals.

Mr. Bazley alleges that on or about June 29, 1977, he was employed by the Jefferson Parish Sanitation Department and working in the course of his employment in the 500 block of Grefer Lane near its intersection with Jennie Street in Harvey, Louisiana. He further alleges that as he was attempting to step up to the rear of the garbage truck he was struck by a 1970 Chevrolet owned by Sordo Tortorich, which was proceeding north on Grefer Lane. Plaintiff also states that the street was a two-lane undivided one and that the garbage truck was stopped and blocking traffic, causing traffic travelling north to swerve around it. In an amended petition, the plaintiff further alleged that his co-employee was guilty of intentional acts, which resulted in Mr. Bazley's injury.

The issues in this case are:

1. Does Louisiana Revised Statute 23:1032, as amended by Act 147 of 1976, which extends tort immunity to any principal, employer, officer, director, stockholder, partner or employee of an employer contravene Article 1, Section 22 of the Louisiana Constitution of 1974 and the United States Constitution because it constitutes a denial to workers of equal protection and due process?

2. Can this court consider a constitutional issue concerning a statute that was not specifically pleaded in the trial court?

3. Did the plaintiff allege sufficient facts for a trier of fact to possibly conclude that the accident was caused by the intentional acts of his co-employee?

Regarding the necessity of having to specifically plead the unconstitutionality of a statute for it to be considered by the appellate court, in Osborn Funeral Home v. Louisiana St. Bd. of Embalm., 194 So.2d 185, 188 (La.App. 2d Cir. 1967), the court observed:

" * * * The rule is, however, well established that he who urges the unconstitutionality of a statute not only must especially plead its unconstitutionality but must show specifically wherein it is unconstitutional, and that such issues not presented by the pleadings are not properly before the court and consequently cannot be considered on appeal. A Sulka & Co. v. City of New Orleans, 208 La. 585, 23 So.2d 224, 229 (1945); Stovall v. City of Monroe, 199 La. 195, 5 So.2d 547, 552 (1941); Mouledoux v. Maestri, 197 La. 526, 2 So.2d 11 (1941); State v. Great Atlantic & Pacific Tea Co., 190 La. 925, 183 So. 219 (1938); City of Shreveport v. Pedro, 170 La. 351, 127 So. 865 (1930); State ex rel. Curtis v. Ross, 144 La. 898, 81 So. 386 (1919); Mitchell v. Louisiana State Board of Optometry Examiners (La.App.) 146 So.2d 863, 869 (3d Cir. 1962); DeBlanc v. DeBlanc (La.App.) 18 So.2d 619, 623 (Orl.1944)."

However, in the present case, the unconstitutionality of the statute in question (LSA-R.S. 23:1032), although not pleaded by the plaintiff, was raised only in response to Fireman's Fund's urging of the exception of no cause of action. In Butler v. Flint-Goodridge Hospital of Dillard University, 347 So.2d 1308 (La.App. 4th Cir. 1977), the court entertained an appeal on the constitutionality of the Revised Statute which requires submission of a medical malpractice claim to a medical panel prior to institution of a suit. There, the unconstitutionality of the statute had been raised in the trial court via an opposition to an exception of prematurity filed by defendants. (This court also held that the Attorney General need only be impleaded when declaratory relief has been sought by the plaintiff in regard to the statute in question.)

Therefore, the question of unconstitutionality of LSA-R.S. 23:1032 as amended by Act 147 of 1976 is properly before this court. LSA-R.S. 23:1032, as amended by Acts 1976, No. 147, § 1 says:

"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 relations, 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. For purposes of this Section, the word 'principal' shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.

"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."

Under this section, therefore, an employee cannot sue an employer or any officer, director, stockholder, partner or employee of such employer or principal in tort for injuries sustained on the job, but must resort to a workmen's compensation claim as his exclusive remedy, unless the act of the co-employee was "intentional."

If we interpret this section to mean that when the defendant officer, agent or employee has breached his duty to an employee or co-employee through personal acts, he is liable for such acts, then it is possible for this court to uphold LSA-R.S. 23:1032 as amended as constitutional. This court will therefore be following the mandate that:

"The general rule is that every statute is presumed to be constitutional, and the court is bound to uphold the constitutionality of a statute when it is reasonably possible to do so. * * * " City of Natchitoches v. State, 221 So.2d 534, 544 (La.App. 3d Cir. 1969).

This circuit in Johnson v. Narcisse, 373 So.2d 207, 209 (1979), observed regarding LSA-R.S. 23:1032 as amended by Act 147 of 1976:

" 'In discussing this problem, the court in Guidry v. Aetna Casualty and Surety Co., 359 So.2d 637 (La.App. 1st Cir., 1978), writ denied, 362 So.2d 578 (La.1978), stated that in order to constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow. The court then held that although the statute (LSA-R.S. 23:1032) does not affect an employer's tort liability for his intentional acts, "Plaintiff's petition fails to state a cause of action for the reason that it does not allege that the acts of Charles Dickey (the fellow employee) were done with the requisite intent to cause injury to plaintiff. " Guidry, supra. Therefore, it is the opinion of this Court that the plaintiff in the instant case does not state a cause of action.' "

In Johnson, supra, the issue of constitutionality was not before the court and under that circumstance, its adherence to the rule of Guidry, supra, was proper. However, the question of constitutionality is before the present court and is being addressed.

We do not feel that it is necessary that a co-employee or executive officer "have entertained a desire to bring about the result that followed" in order for his actions to be considered "intentional" under the amended statute. Such an interpretation would, in effect, extend total immunity in tort to partners, executive officers and co-employees for their negligent acts against co-workers and would result in an unconstitutional interpretation of the statute as amended by the 1976 act.

Webster's New International Dictionary, Second Edition, 1934, defines the word "intentional" thus:

"Intention, which often suggests little more than what one means or proposes to do, implies less determination than purpose, less definite plan or prearrangement than design, which frequently adds the implication of crafty or artful scheming."

The court said in Weir v. Commissioner of Internal Revenue, 109 F.2d 996, 997 (Circuit Court of Appeals, 3d Cir. 1940):

" * * * ' * * * "Intent" may be used in at least three distinct legal meanings. It may designate simply the exercise of will power necessary to cause muscular or physical movement. This concept is, of course, irrelevant in the field of tax law. Secondly, it may denote the immediate result desired by the actor. Thirdly, it may signify the ultimate reason for aiming at that immediate objective. At this point, however, intent shades into motive, which is really the...