Duncan on Behalf of Hahn v. South Cent. Bell Telephone Co.

• Decision Date: 28 October 1992
• Docket Number: No. 23765-CA,23765-CA
• Citation: 608 So.2d 649
• Parties: Diane C. DUNCAN, on Behalf of the Minor Children Brandon Michael HAHN, Clinton Wayne Hahn and Miranda Kay Hahn, and as Administratrix of the Succession of Brenda C. Hahn v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 649

608 So.2d 649

Diane C. DUNCAN, on Behalf of the Minor Children Brandon

Michael HAHN, Clinton Wayne Hahn and Miranda Kay

Hahn, and as Administratrix of the

Succession of Brenda C. Hahn v. SOUTH CENTRAL BELL TELEPHONE COMPANY.

No. 23765-CA.

Court of Appeal of Louisiana,

Second Circuit.

Oct. 28, 1992.

Dissenting Opinion Nov. 10, 1992.

Writ Denied Jan. 8, 1993.

Tucker, Jeter, Jackson & Hickman by T. Haller Jackson, III, for defendant-appellants.

David L. White, for plaintiff-appellee.

Before NORRIS, LINDSAY and BROWN, JJ.

BROWN, Judge.

As Brenda Hahn was leaving work, she was shot and killed by her estranged husband on her employer's parking lot. Plaintiff brought this workers' compensation action on behalf of decedent's three minor children. Determining that this incident arose out of a personal risk and was not employment related, the trial court initially granted summary judgment in favor of the employer. On appeal this court reversed holding that while on company property an employee is still within the course of employment for a reasonable period of time after completing her day's work. Duncan v. South Central Bell Telephone Company, 554 So.2d 214 (La.App.2d Cir.1989), writ denied, 559 So.2d 125 (La.1990). On remand the trial court awarded plaintiff workers' compensation death benefits and funeral expenses. The trial court denied plaintiff's request for penalties and attorney fees. Both plaintiff and defendant appeal. We affirm.

FACTS AND PROCEDURE

Brenda C. Hahn was employed as a telephone operator for defendant, South Central Bell Telephone Company. On August 8, 1986, she was scheduled to work a split shift from 9:30 a.m. until 1:00 p.m. and thereafter from 5:30 p.m. until 9:30 p.m. Mrs. Hahn clocked off of work from her first shift at 1:00 p.m. and proceeded to the parking lot provided for South Central Bell employees. At 1:03 p.m. while in the parking lot, Mrs. Hahn was shot and killed by her estranged husband. This action for workers' compensation benefits and funeral expenses was brought by decedent's sister, a court appointed tutrix, on behalf of decedent's three minor children.

South Central Bell filed a motion for summary judgment contending that decedent's death did not arise out of her employment and thus the children had no cause of action for workers' compensation benefits. The trial court granted the motion for summary judgment. On appeal this court reversed and remanded for further proceedings. Duncan v. South Central Bell, supra. Defendant's writ application to the Louisiana Supreme Court was denied by a four to three vote.

Thereafter, on remand the trial court found in favor of plaintiff and awarded the children death benefits and funeral expenses. From this decision, defendant has appealed. On remand plaintiff amended her petition to seek penalties and attorney fees for the capricious and arbitrary denial of benefits. The trial court denied plaintiff's request and plaintiff also has appealed.

DISCUSSION

In reversing the trial court's initial grant of summary judgment this court held in Duncan v. South Central Bell Telephone Company, supra, that decedent's death occurred in the course of her employment. This court stated, "[e]ven if an employee has finished his day's work and is preparing to leave or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment and the working day embraces these intervals just as it includes reasonable periods of rest, relaxation, or the attendance of personal needs." Duncan, 554 So.2d at 220 citing Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966).

In Duncan, supra, we analyzed the phrases "in the course of" and "arising out of" and utilized the legal reasoning and analysis contained in Raybol v. Louisiana State University, 520 So.2d 724 (La.1988). Raybol is the jurisprudence construing LSA-R.S. 23:1031, as that statute read on the date of Hahn's death. Interpreting Raybol, we found that if an employee is clearly in the course of employment, there is no need to determine whether the injury "arose out of" the plaintiff's employment by examining whether the circumstances under which the employee worked enhanced the danger of an assault. Duncan, 554 So.2d at 221. However, this court noted that a security guard was allegedly absent from his post at the time of the shooting, "which fact, if proven at trial, would clearly serve to satisfy the 'arising out of' requirement as the lack of security provided by the employer enhanced the danger of an assault upon the decedent." Duncan, 554 So.2d at 221. This court further found that by providing specific parking areas for its employees, as well as scheduling the decedent to work certain shifts, defendant made decedent's movements more predictable, and thus may have increased the risk of an assault by decedent's estranged husband. Duncan, 554 So.2d at 221. The case was then remanded to the trial court for further proceedings.

We now clarify our prior opinion to state that two requirements exist for compensability under the act. Both "in the course of employment" and "arising out of employment" must be proven to qualify for compensation benefits; however, they should not be considered in isolation and a strong showing of one can overcome or strengthen a weaker showing of the other.

In our previous opinion, we found that the decedent, although in the process of leaving the work premises, was still "in the course of" her employment and because the employer's actions made her movements more predictable that her death "arose out of" her employment. It is not for this panel to revisit the previous evaluation of a different panel of this court as their decision is the law of this case. Clomon v. Monroe City School Board, 557 So.2d 1100, 1106 (La.App.2d Cir.1990); Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 705 (La.App. 1st Cir.1992), writ denied, 605 So.2d 1099 (La.1992); Knotts v. U.S., 893 F.2d 758, 761 (5th Cir.1990). We are bound by and accept the conclusion reached by the previous panel while clarifying its legal reasoning.

IS THE AMENDMENT TO LSA R.S. 23:1031 RETROACTIVE OR

PROSPECTIVE?

South Central Bell cites, for the first time, Act 454 of 1989 which amended LSA-R.S. 23:1031 to add Paragraph D to the statute. Paragraph D provides that an injury by accident should not be considered as having arisen out of the employment, and therefore is not covered by workers' compensation, if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee's work. LSA-R.S. 23:1031(D). This amendment became effective on January 1, 1990. South Central Bell argues that although Hahn was killed in 1986, this amendment is applicable because it is interpretive and therefore retroactive. Such retroactive application would defeat plaintiff's claim for workers' compensation death benefits and funeral expenses. We do not agree.

LSA-R.S. 1:2 mandates that no statute is retrospective unless expressly stated. The jurisprudence has developed the rule that substantive laws can only be applied prospectively while laws that are procedural, remedial, or curative can be accorded retroactive effect. La.C.C. art. 6 ¹; Graham v. Sequoya Corporation, 478 So.2d 1223, 1225-1226, (La.1985). The jurisprudence has established definitions to determine whether a statute is considered substantive or procedural, remedial, or curative. Crowley v. City of Lafayette, 602 So.2d 40, 44 (La.App. 3d Cir.1992).

A substantive law is one that creates an obligation and its acts are generally defined as those which create, confer, define or destroy rights, liabilities, causes of action or legal duties. Roadrunner Motor Rebuilders v. Ryan, 603 So.2d 214, 218 (La.App. 1 Cir.1992). Procedural, remedial or curative statutes relate to the form of the proceeding or operation of the laws. Procedural acts describe methods for enforcing, processing, administering, or determining rights, liabilities, or status. Curative acts are those that remove past disabilities in order to effect the true intent of the legislature. Crowley, 602 So.2d at 44; Young v. American Hoechst Corporation, 527 So.2d 1102, 1103 (La.App. 1st Cir.1988).

Another exception that allows a retrospective application is for laws that are merely interpretive of existing legislation. Crowley, 602 So.2d at 44. Statutes are considered interpretive only if they explain existing rights and duties, rather than establishing a new right or duty. Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331, 1339 (La.1978), citing, 1 M. Planiol, Civil Law Treatise, Nos. 249-252 (La.St.L.Inst.Transl.1959), and A. Yiannopoulos, Civil Law System, 68 (1977).

Interpretive legislation does not destroy vested rights, because it does not create new rules, but merely establishes the meaning that the statute being considered had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576, 590 (La.1974). In a sense, interpretive acts explain existing laws, or add to them provisions which the lawmakers believe to be salutary. Dripps v. Dripps, 366 So.2d 544, 548 (La.1978).

That portion of Act 454 of 1989 which adds Paragraph D to LSA-R.S. 23:1031 eliminates a theory of recovery and thus, makes changes that alter substantive rights.

LSA-R.S. 23:1031(D) provides in part:

An injury by accident should not be considered as having arisen out of the employment and thereby not covered by the provisions of this chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee's employment. (emphasis added)

Before Paragraph D of LSA-R.S. 23:1031(D) was added, employees could prevail under certain circumstances against the employer for...