Kuebel v. Depart. of Wildlife and Fisheries

• Decision Date: 15 April 2009
• Docket Number: No. 2008-CA-1018.,2008-CA-1018.
• Citation: 14 So.3d 20
• Parties: Karen KUEBEL v. DEPARTMENT OF WILDLIFE AND FISHERIES and Office of Risk Management.
• Court: Court of Appeal of Louisiana — District of US

14 So.3d 20 Karen KUEBEL
v.
DEPARTMENT OF WILDLIFE AND FISHERIES and Office of Risk Management. No. 2008-CA-1018. Court of Appeal of Louisiana, Fourth Circuit. April 15, 2009.

[14 So.3d 21]

Daniel E. Becnel III, LaPlace, LA, for Plaintiff/Appellant.

James D. "Buddy" Caldwell, Attorney General, Henry S. Provosty, Special Assistant Attorney General, Eric R.G. Belin, Special Assistant Attorney General, Brian R. Radcliffe, Special Assistant Attorney General, Provosty & Gankendorff, L.L.C., New Orleans, LA, for Defendants/Appellees.

(Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).

ROLAND L. BELSOME, Judge.

Plaintiff-Appellant, Karen Kuebel, appeals the trial court's judgment sustaining Defendant-Appellee's exceptions of no cause of action and lack of subject matter jurisdiction. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At the time of her injury, Appellant Karen Kuebel was a Biologist II for Appellee, the Louisiana Department of Wildlife and Fisheries ("DWF"). As a Biologist II, Appellant traveled on vessels to various

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test sites. On August 24, 2000, Appellant injured her neck and back while gathering samples in a seine net. The trial court found that Appellant's injuries were caused by DWF's negligence in failing to follow proper guidelines and failing to provide Appellant with a safe work environment. The court also found that the vessel on which Appellant traveled was unseaworthy due to its lack of equipment to assist Appellant in the pulling of the seine nets.

Appellant filed suit on August 21, 2001, seeking damages under the Jones Act, 46 U.S.C. § 30104¹ ("Jones Act") and general maritime law for her injuries. On November 12, 2007, Appellee filed exceptions of no cause of action and lack of subject matter jurisdiction, asserting that because Appellant was a State employee, she was precluded from relief pursuant to the state's sovereign immunity; thus, Appellee argued that Appellant's sole remedy was the Louisiana Workers' Compensation Act ("WCA").

Appellant argued in her opposition to the exceptions that issues of material fact existed regarding her seamen status, as evidenced by the affidavit and deposition of Appellant's coworker, Jack Cahill, who testified as to the amount of time that Appellant spent on vessels as a Biologist II for the DWF. Appellant further argued that because of the amount of time she worked on vessels, genuine issues of fact existed regarding the applicability of the Jones Act and general maritime law, and whether the "seamen's exception" within the WCA applied.

A hearing on the exceptions was conducted on May 12, 2008, at which time Appellant argued that the State waived its right to the exceptions because it had made maintenance and cure payments for the past several years. The trial court requested briefs regarding the specific issue of waiver. Appellee filed a supplemental brief to the trial court, arguing that the State did not waive its immunity as a sovereign entity in making payments to Appellant and could therefore not be subject to suit under the Jones Act or general maritime law.² The trial court signed a judgment granting Appellee's exceptions on May 22, 2008. This appeal followed.

STANDARD OF REVIEW

This Court articulated the de novo standard of review for exceptions of

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no cause of action in Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 03-0960 (La.App. 4 Cir. 11/26/03), 862 So.2d 271:

We review a trial court's decision on an exception of no cause of action de novo "because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition." City of New Orleans v. Board of Comm'rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In doing so, we are confined to the allegations of the petition. No evidence can be introduced to support or to controvert an exception of no cause of action. La. C.C.P. art. 931. Rather, we must accept as true the well pleaded factual allegations set forth in the petition. Based thereon, our job is to determine "whether, on the face of the petition, the plaintiff is legally entitled to the relief sought." Everything on Wheels Subaru v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

A defendant's peremptory exception of no cause of action is designed to test the legal sufficiency of the plaintiff's petition. It poses the question "whether the law affords a remedy on the facts alleged in the pleading." Id. Louisiana has a system of fact pleading, and "[t]he mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action." Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. As we recently noted, "[i]t is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions." Bibbins v. City of New Orleans, 02-1510, p. 5 (La.App. 4 Cir. 5/21/03), 848 So.2d 686, 691, writ denied, 03-1802 (La.10/10/03), 855 So.2d 357.

The exceptor has the burden of proving that the petition fails to state a cause of action. This burden serves the public policy of affording the plaintiff his day in court to present his case. "When it can reasonably do so, the court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence." Kuebler v. Martin, 578 So.2d 113, 114 (La.1991). "An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief." City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 10 (La.3/2/99), 739 So.2d 748, 749.

Id. at pp. 6-7, 862 So.2d at 278.³

DISCUSSION

Appellant asserts three assignments of error: 1) that the trial court erred in finding no cause of action against the State arising out of Appellant's admiralty claims and disregarding this Court's opinion in Higgins v. State of Louisiana, 627 So.2d 217 (La.App. 4 Cir.1993) and the U.S. Supreme Court's opinion in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995); 2) the trial court erred in not finding that the "seamen's exception" to the WCA applied to Appellant; and 3) that the trial court erred in allowing the issue of Appellee's compensation to Appellant to factor into the court's determination that Appellant did not have a cause of action for Jones Act or general maritime law claims.

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ASSIGNMENT OF ERROR # 1

In Appellant's first assignment of error, she asserts that the trial court erred in finding no cause of action against the State pursuant to the Jones Act⁴ or general maritime law. To determine whether Appellant may bring a Jones Act or general maritime claim against the DWF, an arm of the State of Louisiana, we must first examine Louisiana and U.S. Supreme Court jurisprudence.

The leading case in this Circuit is Higgins v. State of Louisiana, 627 So.2d 217 (La.App. 4 Cir.1993). Higgins addressed this precise issue and held that an injured state employee could bring suit against the State of Louisiana under the Jones Act and general maritime law. In making this determination, this Court relied, in part, on Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991), which held that an employee of a state-owned railroad could bring suit against its employer under the Federal Employers' Liability Act ("FELA") in state court. The Jones Act and FELA have historically received similar treatment by the courts. See Welch v. Texas Department. of Highways and Public Transportation, 483 U.S. 468, 476-77, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987); James E. Pfander, Jones Act Claims Against the States After Alden v. Maine: The Surprisingly Strong Case for a Compulsory State Court Forum, 36 J. Mar. L. & Com. 1 at n. 6 (2005). Unlike the case sub judice, however, the injured State employee in Higgins did not have a remedy under the WCA at that time because of his seaman status. Higgins, 627 So.2d at 221. Moreover, since Higgins, fundamental changes in the law have occurred.

Appellee argues, and the trial court found, that the U.S. Supreme Court case of Alden v. Maine is contrary to the assertion that state employees may sue the state as their employer for claims under the Jones Act and general maritime law in state court. In Alden, a group of probation officers sued the State of Maine, their employer, for alleged violations of overtime provisions of the Fair Labor Standards Act ("FLSA"), seeking compensation and damages. Alden v. Maine, 527 U.S. 706, 711, 119 S.Ct. 2240, 2246, 144 L.Ed.2d 636 (1999). The Court held that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts." Alden, supra, at 712, 119 S.Ct. 2240 (emphasis added). The Court further held that Maine did not consent to suits for overtime pay and damages under the FLSA. Id. Accordingly, the state's sovereign immunity operated to prevent individuals from litigating to enforce federal statutory rights against the states.⁵ Thus, "[Maine]'s refusal to consent did not improperly discriminate against a federal cause of action but permissibly

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invoked the state's own constitutional right to freedom from litigation that the Court viewed as an affront to the state's sovereign and dignitary interest." Pfander, 36 J. Mar. L. & Com. 1, 2. The Court further found that "[a] broad immunity was necessary ... to prevent the "`indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties ...'" because to hold otherwise, "the Court reasoned, states would "face the prospect of being thrust, by federal fiat and...