Fulmer v. State

• Citation: 68 So.3d 499
• Decision Date: 02 September 2011
• Docket Number: No. 2010–C–2779.,2010–C–2779.
• Parties: Desi FULMERv.STATE of Louisiana, DEPARTMENT OF WILDLIFE AND FISHERIES and Gary Pierce.
• Court: Supreme Court of Louisiana

68 So.3d 499

Desi FULMER

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

No. 2010–C–2779.

Supreme Court of Louisiana.

July 1, 2011.Rehearing Denied Sept. 2, 2011.

James D. Caldwell, Attorney General, Provosty & Gankendorff, LLC, Lena Dawn Giangrosso, Henry St. Paul Provosty, for Applicant.Law Office of Tonry & Ginart, LLC, Richard A. Tonry, Joyce Duhe Young, Kim Cooper Jones, Michael Charles Ginart, Jr., for Respondent.KIMBALL, Chief Justice.

[2010-2779 (La. 1] This case involves a seaman who was injured in the course and scope of his employment with the State of Louisiana. We granted certiorari in this case to determine whether an injured, state-employed seaman in Louisiana can sue the state under the Jones Act (46 U.S.C. § 30104 et seq.) in state court or whether his claim for damages is governed exclusively by the provisions of the Louisiana Workers' Compensation Act (“LWCA”) (La. R.S. 23:1032 et seq.). For the reasons that follow, we find Louisiana has waived its sovereign immunity from suit for injury to persons and the legislature has not limited that waiver concerning suits by state employees under the Jones Act. Thus, the ruling of the court of appeal is affirmed.

FACTS AND PROCEDURAL HISTORY

Desi Fulmer was an employee of the State of Louisiana, Department of Wildlife and Fisheries, and was assigned to the crew of a state-owned vessel in navigation. On June 2, 2001, as the vessel was patrolling an area of Plaquemines Parish, it went down a trough, which caused Mr. Fulmer to be thrown into the air and upon landing, Mr. Fulmer allegedly suffered several herniated discs and other serious injuries to his spine. At the time of the incident, the vessel was being operated by his co-employee, Gary Pierce, who allegedly was operating the craft at a high rate of speed.

[2010-2779 (La. 2] On May 6, 2004, Mr. Fulmer filed suit against the State of Louisiana and Gary Pierce seeking relief for his injuries under the Jones Act and general maritime law. The State, while admitting it was the employer of the plaintiff and Gary Pierce, asserted numerous affirmative defenses and denied many of the allegations set forth in the petition. The State then filed a declinatory exception of lack of subject matter jurisdiction and a peremptory exception of no cause of action, asserting that the LWCA, La. R.S. 23:1021 et seq. , provided the plaintiff's exclusive remedy. The State sought dismissal of all of the plaintiff's claims under the Jones Act and general maritime law. After a hearing on January 10, 2008, the trial court denied the State's exceptions, relying on the Fourth Circuit decision of Higgins v. State of Louisiana, 627 So.2d 217 (La.App. 4 Cir.1993), which found the State was not immune from suits under the Jones Act and an injured state-employed seaman could bring a Jones Act claim against the State in state court.

In May of 2009, the State re-urged its exception of no cause of action relying on the then recently decided Fourth Circuit case of Kuebel v. Dept. of Wildlife & Fisheries, 08–1018 (La.App. 4 Cir. 4/15/09), 14 So.3d 20, which held that seamen employed by the State could not sue their employer under the Jones Act or general maritime law in state court because Louisiana has not expressly consented to such suits nor has it waived its sovereign immunity as to such suits. Following Kuebel, the trial court sustained the exception of no cause of action and dismissed the plaintiff's suit against the State concluding the plaintiff's exclusive remedy lay in workers' compensation. Plaintiff then filed an appeal to the trial court's ruling.

A divided panel of the Fourth Circuit Court of Appeal overruled its decision in Kuebel and reversed the trial court's ruling. [2010-2779 (La. 3] Fulmer v. State of Louisiana, Department of Wildlife and Fisheries, 10–0088 (La.App. 4 Cir. 10/6/10), 50 So.3d 843. The court reviewed the issue on the peremptory exception de novo. Bibbins v. City of New Orleans, 02–1510, p. 3 (La.App. 4 Cir. 5/21/03), 848 So.2d 686, 690. The court examined its previous decision in Higgins, recognizing that the instant case and Higgins were factually indistinguishable. Higgins involved a state-employed seaman who sued the state for negligence under the Jones Act and general maritime law alleging that the vessel was unseaworthy. In Higgins, the State, as in the instant case, filed an exception of no cause of action and a motion for summary judgment. The trial court in Higgins sustained the exception of the State and dismissed the claims of the state-employed plaintiff. The Fourth Circuit reversed, finding that an injured, state-employed seaman was entitled to sue the state under the Jones Act. The Higgins court followed the U.S. Supreme Court in Petty v. Tennessee–Missouri Bridge Commission, which stated “the Jones Act has no exceptions from the broad sweep of the statement ‘any seaman who shall suffer personal injury in the course of his employment may’ etc,” finding no exceptions for state and bi-state employers in the express terms of the Jones Act. Petty v. Tennessee–Missouri Bridge Commission, 359 U.S. 275, 282, 79 S.Ct. 785, 790, 3 L.Ed.2d 804 (1959) (emphasis added).¹ The Higgins majority also recognized that La. R.S. 23:1035.2 ² excludes from workers' compensation employees who have federal claims under the Jones Act. Higgins, 627 So.2d 217, 219.

[2010-2779 (La. 4] The court of appeal then turned its attention to its previous decision in Kuebel, which relied on the decision of the U.S. Supreme Court in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Alden held that a state's sovereign immunity operates to prevent individuals from suing the state for federal remedies in state court absent that state's consent stating, “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting states to private suits for damages in state courts.” Id. at 712, 119 S.Ct. at 2246. The Kuebel majority found that Louisiana had not consented to suits against the state under the Jones Act, thus a state-employed seaman's exclusive remedy would be the LWCA. Kuebel, 14 So.3d at 30. In the instant case, the Fourth Circuit disagreed and recognized that the State of Louisiana has waived its sovereign immunity via Article XII, Section 10(A) of the Louisiana Constitution, which states, in pertinent part, “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” The court further held that through La. R.S. 23:1035.2, the Louisiana Legislature has recognized that employees may be covered by federal laws providing remedies, and in such cases, workers' compensation benefits are not payable. The majority did note that the state could limit its exposure to suits under the Jones Act; however, it found Louisiana simply has not done so. Fulmer, 50 So.3d at 848, n. 2. The State subsequently applied for a writ of certiorari in this Court, which was granted on February 18, 2011.

DISCUSSION

The State asserts the Fourth Circuit erred in deciding the plaintiff has a cause of action against Louisiana under the Jones Act. The State contends that Higgins, on which the court of appeal relied, is no longer good law, because the U.S. Supreme [2010-2779 (La. 5] Court, in the Alden trilogy,³ determined that Article I enactments, such as the Jones Act, cannot waive sovereign immunity on behalf of the states and subject them to private suits for monetary damages absent their consent. In the last case of the Alden trilogy, Alden v. Maine, a group of probation officers in Maine sued their employer for violations of the overtime provisions of the Fair Labor Standards Act. The Court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting States to private suits for damages in state courts.” Alden, 527 U.S. at 712, 119 S.Ct. 2240. In Alden, the U.S. Supreme Court recognized,

The State of Maine “regards the immunity from suit as ‘one of the highest attributes inherent in the nature of sovereignty,’ ” Cushing v. Cohen, 420 A.2d 919, 923 (Me.1980) (quoting Drake v. Smith, 390 A.2d 541, 543 (Me.1978)), and adheres to the general rule that “a specific authority conferred by an enactment of the legislature is requisite if the sovereign is to be taken as having shed the protective mantle of immunity,” 420 A.2d, at 923.527 U.S. at 757–58, 119 S.Ct. at 2268. The Court found that Maine had not consented to suit, and was thus immune from suit through its sovereign status as a State. Therefore, we must determine if Louisiana has consented to suit or otherwise waived its sovereign immunity as to suits such as the one presented in this case.

The Louisiana Constitution provides, in Article XII Section 10, “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” This Court has recognized this section as an “unequivocal, self-executing waiver of sovereign immunity as to suit and liability in contract and tort cases.” Jacobs v. City of Bunkie, 98–2510 (La.5/18/99), 737 So.2d 14, 22. In 1995, Article XII Section 10(C) of the Louisiana [2010-2779 (La. 6] Constitution was amended to read, in pertinent part:

Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages.

The State contends that after the amendment to Section 10(C), the self-executing waiver of sovereign immunity found in Section 10(A) is now a limited waiver subject to the limitations set forth in Section 10(C). The State further...