Gatte v. Coal Operators Cas. Co.

• Decision Date: 08 June 1970
• Docket Number: No. 50091,50091
• Citation: 236 So.2d 485,256 La. 325
• Parties: Mrs. Ruby GATTE v. COAL OPERATORS CASUALTY COMPANY.
• Court: Louisiana Supreme Court

Page 485

236 So.2d 485

256 La. 325

Mrs. Ruby GATTE v. COAL OPERATORS CASUALTY COMPANY.

No. 50091.

Supreme Court of Louisiana.

June 8, 1970.

Rehearing Denied June 29, 1970.

Garrett, Ryland & Downs, B. Dexter Ryland, Alexandria, for defendant-appellant.

John W. Hebert, Jennings, for plaintiff-appellee.

SANDERS, Justice.

This workmen's compensation proceeding presents for decision a single issue: whether statutory penalties and attorney's fees should be assessed against the defendant insurance company.

After trial, the district court rendered judgment in favor of plaintiff for workmen's compensation based on permanent and total disability, medical expenses in the sum of $2,500.00, a 12% Statutory penalty on the accrued compensation and medical expenses, and attorney's fees in the sum of $2,000.00. The insurance company appealed only from that portion of the judgment assessing penalties and attorney's fees. The Court of Appeal, with Judge Tate dissenting on application for rehearing, reversed the district court's award of penalties and attorney's fees. See 225 So.2d 256. We granted certiorari to review the judgment of the Court of Appeal. 254 La. 865, 227 So.2d 598.

Mrs. Ruby Gatte, a 48-year-old married woman, was stricken with a heart attack on October 5, 1967, while working as a short-order cook at the Rocket Drive-in in Jennings, Louisiana. Mrs. Gatte's work included heavy manual labor, and on the date of the injury, she began work at 7:45 a.m. The heat from the grill and several other pieces of heating equipment heated the working area. About 11:00 a.m. a large lunch order came in from the American Legion Hospital, and while Mrs. Gatte was at the grill cooking these orders, she experienced a severe pain in her chest.

Mrs. Gatte was immediately taken to the American Legion Hospital in Jennings, where her condition was diagnosed as a coronary occlusion affecting a large area of the heart. Dr. Harlie Bearden and Dr. Louis E. Shirley, Jr. were her physicians. She was confined to the hospital for 43 days, under intensive care with a cardiac monitor, pace maker, and emergency defibrillator.

After her attorney made a futile demand for the payment of workmen's compensation, she filed suit on March 18, 1968, against Coal Operators Casualty Company, the insurer of her employer. Trial was had on September 27, 1968.

The assessment of penalties and attorney's fees against insurers is governed by LSA-R.S. 22:658, providing:

'All insurers issuing any type of conother than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% Damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney's fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% Of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney's fees for the prosecution and collection of such amount.'

As correctly found by the Court of Appeal, the record reflects that on January 29, 1968, plaintiff's counsel wrote a letter to the employer, Mr. Anthony Pousson, stating that Mrs. Gatte had suffered 'an acute myocardial infarct' as a result of a heart attack which she experienced on October 5, 1967 while working in the kitchen at Rocket Drive-in. The letter states 'the information we have shows the heart attack was caused, precipated or accelerated by the work Mrs. Gatte was doing at the time she suffered this attack.' Then follows a demand for workmen's compensation benefits.

Mrs. Anthony Pousson, who together with her husband owns and operates the drive-in, testified at the trial that they received this letter from plaintiff's attorney and advised the defendant insurer of its contends.

The record does not show what, if any, action was taken by the defendant insurer following plaintiff's letter of demand of January 29, 1968. However, it is fair to assume defendant requested plaintiff to furnish medical reports to substantiate her claim. For, the record does contain a copy of a second letter dated March 7, 1968 written by plaintiff's counsel addressed to the defendant, Coal Operators Casualty Company, which states in pertinent part: 'Pursuant to your request, I hand you herewith the following: (1) Medical report from (Dr.) Harlie Bearden dated February 26, 1968.' This letter then demands the payment of workmen's compensation benefits by March 15, 1968. No benefits were paid.

The Court of Appeal held that plaintiff could not recover penalties, because she had failed to submit 'satisfactory proofs of loss.' In so holding, we think the court erred. The letter of January 29, 1968, sets forth her name, date, place and nature of injury, and ends with a demand for payment of the benefits due. On March 7, 1968, pursuant to a request by the defendant, Mrs. Gatte furnished a written medical report and the bills for medical expenses to the defendant along with another demand for payment.

Although the second demand letter appears in the record, the medical report of Dr. Bearden that accompanied it is not attached. Dr. Bearden, however, testified at the trial and his testimony established the causal connection between the plaintiff's heart attack and her employment. Dr. Bearden was cross-examined by the defendant, to whom the medecal report had been furnished. Since the physician's testimony was not impeached by prior inconsistent statements, it can be inferred that the report was consistent with his testimony at the trial.

To justify its failure to pay...