Demery v. Dupree
| Decision Date | 19 August 1987 |
| Docket Number | No. 18852-CA,18852-CA |
| Citation | 511 So.2d 1268 |
| Parties | James E. DEMERY, Plaintiff-Appellee, v. D.R. DUPREE, d/b/a Dupree Trucking, et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Kelly & Salim by Robert L. Salim, Natchitoches, for plaintiff-appellee.
Culpepper, Teat, Caldwell & Avery by James D. Caldwell, Jonesboro, for defendants-appellants.
Before HALL, C.J., and JASPER E. JONES and FRED W. JONES, JR., JJ.
From a judgment in favor of plaintiff awarding worker's compensation benefits, penalties and attorney's fees, the defendant statutory employer, Paul Shaw, Inc., and its insurer, Protective Casualty Insurance Company, appealed, raising issues of peremption and prematurity, statutory employer relationship, entitlement to penalties and attorney's fees, entitlement to travel expenses, and duration of disability. For reasons set forth in this opinion, we amend to delete the award of penalties and attorney's fees against the employer, and otherwise affirm.
Donald R. Dupree operated D.R. Dupree Trucking Company as a sole proprietorship to perform contract hauling and logging jobs. Plaintiff was employed by Dupree as a truck driver on a logging crew. Paul Shaw, Inc. operated as a timber dealer with Billy Shaw as its president and sole stockholder. Paul Shaw, Inc., who had a contract to furnish wood to International Paper Company, had purchased merchantable timber from Mike Weaver and entered into an agreement with Dupree to cut and haul timber from the Weaver tract to the International Paper mill in Coushatta. At the time of the accident giving rise to this litigation, Dupree was not doing logging work for anyone other than Paul Shaw, Inc.
On Thursday, January 17, 1985, Dupree's logging crew, including plaintiff as a truck driver, began work on the Weaver tract. On that day, plaintiff transported skidders to the Weaver tract on a lowboy hooked to one of Dupree's trucks. After unloading the skidders, plaintiff returned the truck with the lowboy still attached to Dupree's yard in Coushatta. On Friday, plaintiff drove another Dupree truck with a pole trailer to the Weaver tract where he loaded it with logs before taking it to the International Paper mill later that same day. This same trailer was again loaded with logs on Friday but was not taken to the mill. On Saturday, plaintiff and others went to Dupree's yard to prepare to go to work on the Weaver tract. Plaintiff unhooked the lowboy from the truck that he had driven on Thursday and was in the process of hooking up a log trailer to the same truck when the landing gear on the trailer fell and struck his leg, resulting in a displaced fracture of plaintiff's left distal tibia or shin bone.
The accident was reported to Billy Shaw of Paul Shaw, Inc. who notified Protective Casualty of the claim. After investigation, the insurer refused to pay compensation benefits.
On April 2, 1985, plaintiff filed a claim for compensation with the Office of Worker's Compensation Administration (OWCA) listing Billy Shaw, International Paper Company and Donald Dupree as his employers and Protective Casualty as the insurer. On July 9, 1985 a certificate was issued by OWCA stating that a recommendation had been issued, that the parties listed had received the recommendation of the office and none had rejected it, and therefore they were conclusively presumed to have accepted the recommendation as provided in LSA-R.S. 23:1310.1. Only the plaintiff, his attorney and Dupree were listed on the certificate as parties. The record does not disclose the content of the OWCA's recommendation.
On August 26, 1985 plaintiff filed this suit for worker's compensation benefits against Donald R. Dupree, d/b/a D.R. Dupree Trucking Company, Billy Shaw and International Paper Co., attaching to his petition copies of the claim filed with OWCA and the OWCA certificate. Plaintiff later amended his petition to add Paul Shaw, Inc. and its insurer Protective Casualty Insurance Company as defendants and dismissed his claim against Billy Shaw. Dupree asserted third party demands against Paul Shaw, Inc., Protective Casualty, International Paper Company, and Dobson Pulpwood, Inc. Dupree dismissed his claim against Dobson Pulpwood prior to trial. Exceptions of prematurity filed by Billy Shaw, International Paper Company, Paul Shaw, Inc. and Protective Casualty were overruled and the case went to trial. After plaintiff rested his case, the trial court granted International Paper Company's motion for a directed verdict. After trial, the district court granted judgment in favor of plaintiff against Paul Shaw, Inc. and Protective Casualty for worker's compensation benefits in the amount of $248.00 per week for 42 weeks for a total of $10,416.00, plus medical expenses incurred together with travel expenses in the amount of 23cents per mile, statutory penalties and attorney's fees in the amount of $4,500.00, together with legal interest thereon from date of judicial demand until paid. All claims against Dupree were denied. Paul Shaw, Inc. and Protective Casualty appealed, and filed an exception of peremption in this court.
Appellants, Paul Shaw, Inc. and Protective Casualty, raise the following issues on appeal:
1. Whether the exception of prematurity filed by appellants should have been sustained;
2. Whether plaintiff's failure to reject the OWCA's recommendation perempts his cause of action against appellants for compensation benefits;
3. Whether Paul Shaw, Inc. was plaintiff's statutory employer;
4. Whether Paul Shaw, Inc. was erroneously cast for penalties and attorney's fees along with its insurer;
5. Whether plaintiff failed to prove his travel expenses for medical treatment; and
6. Whether plaintiff was erroneously awarded benefits for a period of time following his release from treatment.
Appellants filed an exception of prematurity based on their lack of notice of the OWCA proceedings and plaintiff's noncompliance with LSA-R.S. 23:1310.1. The trial court denied the exceptions.
Plaintiff submitted a claim to OWCA listing Billy Shaw, International Paper and Donald Dupree as his employers and Protective Casualty as the insurer. OWCA issued a recommendation listing only Dupree as employer/party and then issued a certificate of no rejection. Plaintiff subsequently filed this suit.
It appears that plaintiff did all he was required to do in filing his claim with OWCA. Although Paul Shaw, Inc. was not listed in the claim, the corporation's president and sole stockholder was listed along with its insurer. If those parties did not receive notice of the claim, it was the fault of OWCA and not plaintiff. The recommendation of OWCA apparently did not deal with plaintiff's claim against Shaw and Protective Casualty and to this extent did not comply with OWCA's statutory duty to issue a recommendation on plaintiff's entire claim against all parties.
Plaintiff complied with LSA-R.S. 23:1310 in filing his claim with OWCA. Since the administrative agency issued no recommendation as to the claim against Paul Shaw, Inc. and Protective Casualty, there was nothing for plaintiff to accept or reject insofar as his claim against those parties is concerned. Although the appropriate action by the trial court on appellant's exception of prematurity might have been to remand to OWCA for determination and recommendation on plaintiff's entire claim, this was not done and the case has now been fully litigated in court. The accident happened more than two years ago. No useful purpose would be served by setting aside the district court judgment and requiring the parties to start over in the administrative process, further delaying a decision for a substantial period of time. See McConnell v. Givens Timber Co., Inc., 511 So.2d 1258 (La.App. 2d Cir.1987).
Appellants filed in this court a "peremptory exception" relying on Schulin v. Service Painting Co. of Louisiana, 479 So.2d 939 (La.App. 1st Cir.1985), writ denied, 481 So.2d 634 (La.1985). Appellants assert that because plaintiff failed to timely reject the OWCA's recommendation, he was conclusively presumed to have accepted the recommendation under LSA-R.S. 23:1310.1 and was thereby perempted from seeking review of the OWCA recommendation in the district court. As pointed out above in the discussion of the prematurity issue, there was no recommendation to reject insofar as the claim against appellants is concerned. Furthermore, the concept that a failure to reject a recommendation of OWCA perempts or destroys an employee's cause of action has been rejected by this court in Suttle v. Roadway Express, Inc., 511 So.2d 1262 (La.App. 2d Cir.1987), which followed the Third Circuit's analysis in Rich v. Geosource Wireline, Inc., 490 So.2d 1165 (La.App. 3d Cir.1986).
Appelants argue that the trial court erred in finding that Paul Shaw, Inc. was the statutory employer of plaintiff under the analysis set forth in Berry v. Halston Well Service, Inc. 488 So.2d 934 (La.1986), and based on insufficient proof of the contract between Dupree and Shaw under LSA-C.C. Art. 1846. The evidence clearly shows by Billy Shaw's own testimony that he agreed with Dupree that Paul Shaw, Inc. would provide worker's compensation insurance for Dupree's employees while they worked on the job for Paul Shaw, Inc. Thus, there is no merit to appellant's argument of insufficient proof under LSA-C.C. Art. 1846. Furthermore, the agreement between Dupree and Shaw regarding payment of worker's compensation insurance is a factor which can be considered in determining statutory employer status. See Godfrey v. John L. Vaccaro and Associates, 402 So.2d 195 (La.App. 1st Cir.1981).
It is well-settled that where a principal engaged in procuring timber products is actually paying for services in their processing, such as the cutting and hauling of timber in ...
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