Fulmer v. State, Dept. of Wildlife and Fisheries

• Decision Date: 22 November 2010
• Docket Number: No. 2010-CA-0088.,2010-CA-0088.
• Citation: 50 So.3d 843
• Parties: Desi FULMER v. STATE of Louisiana, DEPARTMENT OF WILDLIFE AND FISHERIES and Gary Pierce.
• Court: Court of Appeal of Louisiana — District of US

50 So.3d 843

Desi FULMER

v.STATE of Louisiana, DEPARTMENT OF WILDLIFE AND FISHERIES and Gary Pierce.

No. 2010-CA-0088.

Court of Appeal of Louisiana,Fourth Circuit.

Oct. 6, 2010.

Rehearing Denied Nov. 22, 2010.

Richard A. Tonry, Michael C. Ginart, Jr., Kim C. Jones, Cullen A. Tonry, Joyce D. Young, Law Office of Tonry & Ginart, LLC, Chalmette, LA, for Plaintiff/Appellant, Desi Fulmer.

James D. "Buddy" Caldwell, Attorney General, Henry S. Provosty, Lena D. Giangrosso, Pprovosty & Gankendorff, L.L.C., New Orleans, LA, for Defendants/Appellees, State of Louisiana, Department of Wildlife & Fisheries and Gary Price.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).

DAVID S. GORBATY, Judge.

**1 In this appeal, plaintiff asserts that the trial court erred in granting defendants' exception of no cause of action. Because we conclude that Kuebel was incorrectly decided, we overrule Kuebel, reverse the trial court's judgment on the state's exception, and remand the matter to the trial court for further proceedings. We explain our decision below.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Desi Fulmer, is an employee of the State of Louisiana, Department of Wildlife and Fisheries. On June 2, 2001, the plaintiff was injured while working as a member of the crew of a state owned vessel in navigation and assigned to patrol the waters near, around and adjacent the Head of Passes in the Parish of Plaquemines. The vessel was being operated by his co-employee, Gary Pierce, who allegedly was traveling at a high speed when a ship wave caused the vessel to go down a trough, throwing the plaintiff into the air and resulting in the plaintiff sustaining herniated discs and other serious injuries to his cervical spine.

The plaintiff filed a petition for damages against his employer, the State, and his co-employee, Gary Pierce, seeking relief under the Jones Act and general maritime law for his injuries. The State answered the lawsuit, denying many of **2 the allegations and setting forth numerous affirmative defenses. However, the State admitted that it was the employer of the plaintiff and the co-defendant.

In November of 2007, the State filed a Motion for Declinatory Exception For Lack of Subject Matter Jurisdiction and Preemptory Exception for No Cause of Action. The State averred that the plaintiff failed to state a claim over which the court had jurisdiction. The State asserted that the plaintiff's exclusive remedy against it was provided for by the Louisiana Workers' Compensation Act. Thus, it sought dismissal of all Jones Act claims and claims in admiralty asserted by the plaintiff. In response to the exception, the plaintiff filed an opposition memorandum asserting that the issue of whether a state employee could maintain a suit under the Jones Act and general maritime law had been addressed favorably to the employee in Higgins v. State of Louisiana, 627 So.2d 217 (La.App. 4 Cir.1993). Following a hearing on January 10, 2008, the trial court denied the State's exceptions. The State filed a writ application in this court, which was denied.

In May 2009, defendants re-urged their exception of no cause of action based upon this court's recent decision in Kuebel v. Dept. of Wildlife & Fisheries, 2008-1018 (La.App. 4 Cir. 4/15/09), 14 So.3d 20. Bound by our decision in Kuebel, the district judge concluded that Mr. Fulmer's exclusive remedy was pursuant to Louisiana Workers' Compensation Act, La. R.S. 23:1021 et seq. , sustained the exception, and dismissed the suit. See La. C.C.P. art. 934. Plaintiff subsequently filed this appeal.

DISCUSSION

The peremptory exception at issue here, based solely on a question of law, must be reviewed de novo. Bibbins v. City of New Orleans, 02-1510, p. 3 (La.App. 4 Cir. 5/21/03), 848 So.2d 686, 690.

**3 Plaintiff avers that the trial court erred in finding that a Louisiana state employee has no rights under the Jones Act or general maritime law to sue his employer, and that workers' compensation is the exclusive remedy.

Plaintiff contends that the United States Supreme Court's decisions in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999), and Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (collectively, "the Alden trilogy"), do not apply to workers' compensation cases involving seamen in Louisiana because of differences in the law and constitutions of Louisiana and the other states involved, and because those cases were filed in federal rather than state court. As such, plaintiff avers, Kuebel was wrongly decided. We agree.

Prior to Kuebel, the seminal case on this issue was Higgins, supra. In Higgins, this court held that an injured state employee could bring suit against the state of Louisiana under the Jones Act and general maritime law. The facts of the instant case are indistinguishable from the facts in Higgins. Higgins sued the state for negligence under the Jones Act and for unseaworthiness under the general maritime law. The state filed an exception of no cause of action and alternatively, a motion for summary judgment. The trial court granted the state's exception and dismissedthe plaintiff's claims against the state. This court reversed. In reaching the conclusion that an injured state employee was entitled to sue the state under the Jones Act and general maritime law, this court cited La. R.S. 23:1035.2 for the proposition that the employee did not have remedies under the Workers' Compensation Act available to him.

**4 In Higgins, this court also noted that the issue of whether a state employee injured in the course and scope of his employment on a state owned vessel could maintain an action in admiralty against the State had been addressed by this court in Cosey v. Department of Transportation and Development, et al., unpub., 92-C-2619, (La.App. 4 Cir. 11/20/92) writ denied, 618 So.2d 407 (La.1993). In rejecting the state's argument that it was immune from suits in admiralty by virtue of its status as a department of the State, this court concluded that the State was confusing remedies under the law with the forum in which those remedies could be brought. Further, this court rejected the State's argument that its employee was restricted to workers' compensation benefits, noting that federal law provided him the remedies he was seeking and the State could not limit the remedies afforded the employee under the savings to suitors clause. Citing La. R.S. 23:1035.2, this court concluded that the Louisiana Workers' Compensation and the Jones Act remedies are mutually exclusive. Thus, it found this gave additional support to the employee's argument that he could bring a Jones Act claim against his employer in a state court. For these reasons, this court found no error in the trial court ruling denying the state's exception.

We here note that from the time of our decisions in Cosey and Higgins and the panel's decision in Kuebel, the Congress did not change the Jones Act and the Louisiana legislature did not amend the Louisiana Workers' Compensation Act to legislatively overrule our decisions in Cosey and Higgins.

In Kuebel, a biologist at the Department of Wildlife and Fisheries who traveled on vessels to various test sites injured her neck and back while gathering samples in a seine net. She filed suit, seeking damages under the Jones Act and general maritime law. The trial court sustained the Department of Wildlife and **5 Fisheries' exceptions of no cause of action and lack of subject matter jurisdiction. Citing the Alden trilogy, this court affirmed. Specifically, this court noted:

Read in conjunction with the WCA [Workers' Compensation Act], Louisiana has established a procedure for suits against the State by providing that injured State employees may bring claims under the WCA. Accordingly we find that article 12, section 10 of the Louisiana Constitution does not evidence the state's consent to be sued and cannot operate as an absolute waiver of sovereign immunity such that the legislature has no authority to assert immunity for specific types of claims. Accordingly, we find that the State of Louisiana has not consented to be sued in its own courts by individuals seeking recovery under the Jones Act.

Kuebel, 2008-1018, p. 12, 14 So.3d 20, 30.

The Kuebel court further held:

We do not find that the Louisiana WCA's "seaman's exception" operates as consent or waiver for private litigants to bring suit against Louisiana under the Jones Act or general maritime claims in state court.

2008-1018, pp. 15-16, 14 So.3d 20, 31.

The court concluded:

Accordingly, as the law currently stands pursuant to the U.S. Supreme Court's" Alden trilogy" decisions, Appellant may not bring suit against the State of Louisiana under the Jones Act in State court without its consent. Therefore, applying the foregoing U.S. Supreme Court jurisprudence to the facts of the case sub judice, we find that Appellant, as an employee of the [Department of Wildlife and Fisheries], an arm of the State, is governed by the exclusive remedies available under the Louisiana Workers' Compensation Act.

Kuebel, 2008-1018, pp. 23-24, 14 So.3d 20, 37.

Kuebel cites several federal cases from other jurisdictions in support of its contention that the doctrine of sovereign immunity has been expanded to prohibit admiralty suits against the state. However, a review of those cases reveals that none is directly on point, and more importantly, none support deviating from our Cosey-Higgins precedent.

**6 While it is true that Alden contains language that severely undercuts some of the...