Fontenot v. Town of Kinder

• Decision Date: 12 November 1979
• Docket Number: No. 7213,7213
• Citation: 377 So.2d 554
• Parties: Homer FONTENOT, Plaintiff-Appellee-Appellant, v. TOWN OF KINDER et al., Defendants-Appellants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 554

377 So.2d 554

Homer FONTENOT, Plaintiff-Appellee-Appellant, v. TOWN OF KINDER et al., Defendants-Appellants-Appellees.

No. 7213.

Court of Appeal of Louisiana, Third Circuit.

Nov. 12, 1979.

Writ Refused Jan. 28, 1980.

McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiff-appellee-appellant.

Plauche, Smith, Hebert & Nieset, A. Lane Plauche, Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendants-appellants-appellees.

Before DOMENGEAUX, FORET and SWIFT, JJ.

DOMENGEAUX, Judge.

This is a workmen's compensation case wherein plaintiff, Homer Fontenot, claims total and permanent disability benefits, medical expenses, and attorney's fees.

The trial court rendered judgment in favor of plaintiff ordering defendant, Town of Kinder, (Town), and its workmen's compensation insurer, defendant Southern Farm Bureau Casualty Insurance Company, (Southern Farm), to pay 48.8% Of all weekly compensation benefits and medical expenses and ordering defendant, Allen Parish Police Jury, (Police Jury), and its workmen's compensation insurer, defendant Zurich Insurance Company, (Zurich), to pay 51.2% Of the weekly benefits and medical expenses. The trial court assessed legal interest and statutory penalties of 12% Against all defendants and allowed them credit for payments previously made to the plaintiff. The Police Jury and Zurich were also assessed $5,000.00 as attorney's fees. From this judgment all parties have appealed.

The Police Jury and Zurich request the following relief on appeal: (1) That they be relieved of all liability for payment of plaintiff's workmen's compensation benefits and medical expenses on the ground that no employer-employee relationship existed between Homer Fontenot and the Police Jury; (2) alternatively, that they not be assessed penalties and attorney's fees because they presented a serious defense in good faith; (3) in the further alternative, that the attorney's fees awarded plaintiff be reduced; (4) that Southern Farm be assessed its proportionate share of attorney's fees; and (5) that this Court fix the proportions of liability at 51.2% Owed by the Town and Southern Farm and 48.8% Owed by the Police Jury and Zurich, in accordance with the evidence.

The Town and Southern Farm have appealed, asking only that they not be assessed penalties. They ask this Court to affirm the judgment in all other respects.

Homer Fontenot has appealed to ask this Court to hold all the defendants solidarily liable for the payment of compensation benefits and medical expenses. The trial court found all defendants solidarily liable in his Reasons for Judgment but the signed judgment does not so provide. Plaintiff also requests that the attorney's fees be increased.

THE FACTS

Plaintiff was employed by the Mayor of Kinder to work at a garbage dump located outside the Town of Kinder. On July 31, 1975, plaintiff suffered an injury while burning trash, a duty which was within the course and scope of his employment at the dump. Mr. Fontenot's right trouser leg caught fire and his right leg suffered third degree burns. As a result of this injury, Mr. Fontenot was hospitalized for ten weeks.

At the time of his injury, plaintiff was a part-time employee at the dump, working forty-eight hours a week, but only two weeks a month. The Town of Kinder paid him $2.10 per hour for one forty-eight hour week, or $100.80, and the Allen Parish Police Jury paid him $2.00 per hour for the other week, or $96.00. ¹

After his hospitalization, plaintiff never returned to his job at the dump, or to any other job. His doctor said that his burns were completely healed, but plaintiff, at the time of trial, still complained of pain and stiffness in his leg. Mr. Fontenot, after his injury, continued to receive his weekly wages from both the Town and the Police Jury. In addition to Mr. Fontenot's weekly wages, the Town's workmen's compensation insurer paid him partial compensation during most of the convalescent period, ² and, additionally, paid approximately one-half of his medical expenses. The Town and Southern Farm discontinued their payments to Mr. Fontenot on April 28, 1976, after receiving a note written and signed by Dr. L. K. Moss, plaintiff's treating physician. Dated January 12, 1976, the note stated:

"Homer Fontenot may return to work 2/1/76."

Meanwhile, the Police Jury continued to pay Mr. Fontenot's wages until May 31, 1976, at which time the payments were ceased. Zurich has steadfastly refused to pay plaintiff any workmen's compensation benefits or any portion of the medical expenses.

On July 26, 1976, Mr. Fontenot filed suit against the four defendants.

PERMANENT AND TOTAL DISABILITY

The trial judge held that the clear preponderance of the evidence supported plaintiff's contention that he is permanently and totally disabled and has been since his injury on July 31, 1975. ³ None of the defendants dispute this finding. We therefore adopt the trial court's finding that plaintiff's work-related injury left him totally and permanently disabled.

To determine the weekly amounts of compensation due Mr. Fontenot, the trial court correctly reasoned that he was entitled to have his average weekly wage computed on a 40-hour week, even though he actually worked no more than an average of 24 hours a week. La.R.S. 23:1021(7)(a), as amended by Act No. 25 of the 1968 Extra. Session of the Louisiana Legislature; Farris v. Ducote, 293 So.2d 589 (La.App. 3rd Cir. 1974). Since Mr. Fontenot was paid at the rate of $2.00 an hour by the Police Jury, and $2.10 an hour by the Town, his average hourly wage was $2.05, and his average weekly wage, based on a 40-hour week, was $82.00. Sixty-five percent of this average weekly wage is $53.30, which amount is due Mr. Fontenot each week for a period not to exceed 500 weeks from the date of the accident.

JOINT EMPLOYERS

The principal issue in this suit is whether Mr. Fontenot was employed jointly by the Town and the Police Jury. We find the trial court's disposition of this issue to be correct as set forth in his Reasons for Judgment, which we quote as follows:

"The trash dump where the plaintiff was working was operated pursuant to a joint working agreement by the two municipal bodies. The dump was owned by the Town of Kinder, but since the police jury had no trash dumping facilities available for area residents not living within the corporate limits of Kinder, the police jury contributed to the operation of the dump. The police jury furnished heavy equipment to dig holes and to cover trash. Also, the police jury paid a portion of the salaries of people who worked at the dump; in this particular instance, the police jury paid approximately one-half of Mr. Fontenot's salary. Specifically, the police jury was paying him at the rate of $2.10 per hour and the Town of Kinder paid him $2.00 per hour. ⁴ Each of the two entities issued its separate check to Mr. Fontenot each month; thus, Fontenot was paid jointly by these two defendants.

Mr. Robert L. Brooks, the Secretary-Treasurer of the Allen Parish Police Jury, explained how Mr. Fontenot was hired. Mr. Lafargue, the Mayor of Kinder would designate who would work at the dump, and, in turn, notify someone, either an elected police juryman or an employee of the police jury, and the police jury would put the person on its payroll as a part-time employee.

Unquestionably, Mr. Fontenot, while working at the trash dump, was jointly serving the two municipal bodies. Counsel for Zurich and the police jury contend that no employer-employee relationship existed between Fontenot and the police jury, and, consequently, his clients owe nothing. He cites Sicard v. City of New Orleans (La.App. 4 Cir., 1975), (176) So.2d 672, and Book v. Police Jury of Concordia (La.App., 2 Cir., 1952) 59 So.2d 151, and quotes Professor Wex Malone's treatise (Section 58 at page 66) the mentioned quotation being as follows:

' . . ., (T)he power to control the doing of the work, rather than liability for wages, is determinative as to who was the employer at the time of the accident.' "

In both Sicard and Book the Court of Appeal found that the payment of wages was not conclusive proof that an employer-employee relationship existed, especially when Another party (found, in these cases, to be the employer) directly controlled the employee's actions.

The trial court distinguished those cases from the one now on appeal, as follows:

"The police jury's involvement here, however, is substantially more than the mere payment of wages. Fontenot was performing a function for the police jury as well as the Town of Kinder at the time of his injury. The trash dump was visited periodically by Mr. Savant, the police juryman elected from the district in which the dump was located. There is no evidence that the employment of anyone occupying the position of Mr. Fontenot was ever terminated, but certainly if Mr. Savant had seen that the plaintiff was not serving the purposes of the police jury, the police jury had power to stop carrying Fontenot on its payroll as a part-time employee." (Emphasis added.)

The trial court correctly reasoned that this case is factually similar to and controlled by Continental Insurance Company v. Fireman's Fund Insurance Company, 350 So.2d 183 (La.App. 4th Cir. 1977), and by United States Fidelity & Guaranty Company v. American Employers Insurance Company, 315 So.2d 822 (La.App. 3rd Cir. 1975).

In Continental the injured employee was working simultaneously for Pendleton Detectives and Plywood Panels, Inc. The Court of Appeal found that each employer exercised Some degree of control over the employee and that he was simultaneously performing services for Both employers. The trial court found, and we agree, that the same situation exists here.

In the United States Fidelity & Guaranty case, the injured employee, Mrs. Landry, was a court reporter for the Fourteenth Judicial District, which is composed of the parishes of Calcasieu and...