Bracken v. Payne and Keller Company, Inc.

• Decision Date: 05 September 2007
• Docket Number: No. 2006 CA 0865.,2006 CA 0865.
• Citation: 970 So.2d 582
• Parties: Leonard C. BRACKEN v. PAYNE AND KELLER COMPANY, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

970 So.2d 582

Leonard C. BRACKEN v. PAYNE AND KELLER COMPANY, INC., et al.

No. 2006 CA 0865.

Court of Appeal of Louisiana, First Circuit.

September 5, 2007.

Leonard C. Bracken, White Castle, Plaintiff-Appellant In Proper Person.

Kirk L. Landry, Holly C. Hargrove, Keogh, Cox & Wilson, Ltd., Baton Rouge, for Defendant-Appellee Payne and Keller Co., Inc.

Hugh P. Lambert, New Orleans, for Defendant-Appellee Lambert & Nelson, P.L.C.

Before: PARRO, GUIDRY, and McCLENDON, JJ.

PARRO, J.

In this workers' compensation action, the claimant appeals a judgment in favor of the defendants, sustaining a peremptory exception raising the objection of prescription, dismissing his claims, and imposing sanctions against him for violation of LSA-C.C.P. art. 863.¹ For the following reasons, we affirm.

Factual Background and Procedural History

On August 10, 2005, Leonard Bracken (Bracken) filed a workers' compensation claim against his employer, Payne & Keller Co., Inc. (P & K), his former attorneys, Lambert & Nelson, P.L.C. (L & N), and their insurers in connection with an accident that occurred on September 25, 1996, involving a chemical release at Georgia Gulf Corporation's facility in Plaquemine, Louisiana. Bracken alleged that while on a job for P & K that day, he was exposed to mustard gas and other chemicals. He averred that he learned of his exposure to mustard gas while watching television two weeks after he had been laid off. Other than stating that he had been exposed, Bracken did not indicate what type of injuries he had sustained. In his disputed claim form, Bracken stated that no wage benefits had ever been paid and that medical treatment had been discontinued. Bracken further alleged:

I had a [workers'] compensation claim filed by my former attorneys Lambert & Nelson without my knowledge. They lead me to believe that all I had was a tort claim. The workers' compensation claim should have taken care of my medical expenses, however, it was not because these attorneys deducted medical expenses out of my settlement.

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The merits of this claim could rest squarely on the fact that the attorneys that [handled] my claim clearly breached their fiduciary duties by failing to keep me informed as to what type of claims that they filed on my behalf as well as other important information that they neglected to tell me. [I'm] not asking this tribunal to mediate this issue, however, [I'm] asking this tribunal to mediate the merits surrounding the fact that Lambert & Nelson [filed] a workers' compensation suit without my knowledge using medical records from the mustard gas exposure. (Workers' comp. suit will be attached and paragraph 5 of joint petition will confirm this fact about the medicals and filing of the suit). In addition, Lambert and Nelson clearly defrauded me in this matter by assessing a 42.5% lawyer fee on a workers' compensation claim, while deducting medical expenses from my settlement, while leading me to believe that this was a tort suit. (Leonard Bracken Rough Disbursement # 2 and the Indemnity Agreement will be attached to confirm this fact).

Attached to his disputed claim form were pleadings and documents from previous litigation, including a joint petition to compromise any workers' compensation claim that Bracken may have. This joint petition referred to the terms of an agreement of compromise and settlement² that had been entered into by Bracken and P & K, as well as others who were parties to pending tort actions. This joint petition disclosed that P & K had paid $968.10 in medical benefits to or on behalf of Bracken and that nothing had been paid in temporary total disability benefits. In paragraph 8 of this joint petition, Bracken acknowledged that "all past, present and future indemnity (weekly) benefits, disability benefits, medical benefits, death benefits, dependent benefits, penalties, attorney's fees, interest, travel expenses, punitive damage claims and any other claims known or unknown to [him] are hereby compromised, settled, dismissed and waived in their entirety and shall be the sole liability, risk and responsibility of [himself]." The joint petition further alleged that Bracken had carefully considered the proposed compromise reached in connection with a third party global settlement in pending tort claims and that, in his opinion, the settlement was fair and equitable, did substantial justice to the parties, and should be approved.³ Bracken signed this joint petition with his attorney and P & K's attorney. Bracken also signed an affidavit which verified that all of the facts alleged in the joint petition were true and correct to the best of his knowledge, information, and belief. An order dated October 27, 1999, was entered by a workers' compensation judge, approving the compromise agreement to which Bracken and P & K were parties.⁴ This order allowed P & K to waive its right pursuant to LSA-R.S. 23:1101 et seq. to recover benefits paid to and on behalf of Bracken in connection with the 1996 incident and released P & K from all further liability to Bracken under the workers' compensation law for compensation, medical, and any other benefits, in tort or otherwise, in connection with the September 1996 chemical exposure. Pursuant to a motion to dismiss filed by L & N on behalf of Bracken, his claim against P & K had been dismissed, with prejudice, by order dated October 27, 1999.

In the present proceeding, P & K and L & N each filed an exception raising the objection of prescription and a motion for sanctions, alleging that Bracken's pleadings and attachments failed to establish that any activity, payments, or other potential interruptions of prescription have occurred since the latter part of 1999. Following a hearing, the workers' compensation judge (WCJ) found that Bracken's claim for workers' compensation benefits had prescribed on its face and that Bracken had failed to prove that prescription had been interrupted or suspended. Furthermore, the WCJ found that Bracken had brought his former attorneys into this litigation for no apparent reason other than mere harassment. The WCJ entered a judgment, declaring that Bracken's claim had prescribed and that he had violated the provisions of LSA-C.C.P. art. 863. Accordingly, his claim was dismissed, with prejudice, and he was ordered to pay $2,500 in sanctions to P & K and L & N each for a total of $5,000. Bracken appealed.

Prescription

If the facts alleged in a petition do not show that a claim has prescribed, the burden is on the party raising the objection of prescription to prove it. Conversely, if a claim is prescribed on the face of the pleadings, the burden is on the plaintiff to show that prescription has not tolled, because of an interruption or a suspension of prescription. Brister v. GEICO Ins., 01-0179 (La.App. 1st Cir.3/28/02), 813 So.2d 614, 616. At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931. Generally, in the absence of evidence, the objection of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. Daisey v. Time Warner, 98-2199 (La.App. 1st Cir.11/5/99), 761 So.2d 564, 567.

Louisiana Revised Statute 23:1209 addresses the prescriptive period for workers' compensation claims, providing in relevant part:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. [Footnote omitted.]

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C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

Louisiana Revised Statute 23:1209(A) provides that in the absence of an agreement, a claim for workers' compensation weekly benefits is prescribed unless a formal claim is filed within one year of the accident or, if such payments have been made, within one year of the last payment. However, the statute also provides an exception in the case of a "developing injury," or one which does not develop or manifest itself immediately after the accident, whereby the prescriptive period does not end until one year from the date the injury develops, but in no event later than two years from the accident date. See Mitchell v. Terrebonne Parish School Bd., 02-1021 (La.App. 1st Cir.4/2/03), 843 So.2d 531, 533, writ denied, 03-2275 (La.11/26/03), 860 So.2d 1135.

Bracken's claim was filed more than one year after the alleged accident. In his disputed claim form, Bracken...