LaBRUZZA v. Hardware Mutual Casualty Insurance Co.
| Decision Date | 09 August 1962 |
| Docket Number | Civ. A. No. 10452. |
| Citation | 207 F. Supp. 789 |
| Parties | Charles L. LaBRUZZA, Plaintiff, v. HARDWARE MUTUAL CASUALTY INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of Louisiana |
Robert J. Mack, Sims & Mack, Hammond, La., for plaintiff.
Alfred W. Spiller, Hammond, La., for defendant, Hardware Mut. Cas. Ins. Co., Inc.
This matter came up for hearing on a former day on defendant's plea of prescription under Rule 12(b) F.R.Civ.P., 28 U.S.C.
IT IS ORDERED that the plea of prescription be GRANTED and that the plaintiff's case be DISMISSED.
The plaintiff was employed as a carpenter by the Ragusa Brothers Construction Company of Hammond, Louisiana, and while in the course and scope of his employment suffered an injury that subsequently developed into a total loss of vision of the right eye. It is alleged that at the time of the incident he was withdrawing a nail from a 2" × 8" board. The hatchet he was using broke and caused a piece of the hatchet to strike him in the right eye.
On January 19, 1959, the defendant made a settlement with the plaintiff and on May 25, 1959, extended its last payment of Workmen's Compensation Benefits. In November of 1959 a condition of the left eye developed to such an extent that the plaintiff could no longer carry out his duties on his private farm (to which he repaired after leaving Ragusa Brothers).
This suit for total and permanent disability was filed by the plaintiff on October 11, 1960, three years, three months and seventeen days after the injury.
Defendant raises the plea of prescription in his responsive pleading as he may under Rule 12(b). Since this is a legal defense, it is properly taken up before trial on the merits. If the defense has merit, the case should be dismissed without more.
The Louisiana Employer's Liability (Workmen's Compensation) Act is found in Title Twenty-Three of the Louisiana Revised Statutes of 1950, and Section 1209 thereof sets forth the prescriptive or peremptive periods for compensation cases (hereafter referred to as LSA-R.S. 23:1209). That section reads as follows:
(Emphasis supplied.)
Whether or not this section provides a period of "prescription"1 or one of "peremption"2 is not now before us. Even though the section is denominated "prescription", the limitation on the time within which suits for Workmen's Compensation must be instituted is actually a form of peremption since the plaintiff's right is destroyed forever if suit is not brought within the specified time.3 In the one case before the Louisiana Supreme Court on whether the statute was one of peremption or of prescription the Court stated that the question was unimportant.4
Thus the question for determination is purely one of law, i. e. is a suit for Louisiana Workmen's Compensation prescribed or perempted if filed more than two years after the date of the injury, but less than one year after the date of total disability?
The answer is in the affirmative.5
The very capable counsel for the plaintiff has cited a number of cases6 in his opposing memorandum militating against dismissal of the suit on grounds of prescription or peremption. However, those cases involved one-year prescriptive or peremptive period problems wherein suit was filed prior to the end of the two-year period.
A case in point, on the two-year period, is that of Cook v. International Paper Company, La.App., 42 So.2d 558. In that case the plaintiff was injured on July 23, 1946, and filed his suit on July 28, 1948. (Compensation was not paid to the plaintiff for his back injury.)
In the Cook case the plaintiff made the contention that even though he was injured in July of 1946, the injury did not manifest itself into total disability until December of 1947, and that the one-year prescriptive period should run from that date. He stated that it would be an injustice to hold him to a two-year period because where the injury developed eighteen or twenty months after the injury there would be a much shorter period of prescription than those employees whose injuries manifested themselves immediately, or, say, six months later.
In Cook the Court held that "Plaintiff's suit having been filed more than two years after the accident, the action is barred by the same law which created it."7
The Louisiana Supreme Court, never having been presented with the problem, has, on several occasions stated that the period of two years is the final arbiter.
A case in point is that of Finley v. Hardware Mutual Casualty Company, 237 La. 214, 110 So.2d 583, wherein one of the plaintiff's cases are cited as authority for the proposition that "When it injury is shown to have causal connection, with disability the employee, who has instituted his suit within two years from the date of the accident (See R.S. 23:1209), as in this case, is entitled to recover."8
Also in point is Wallace v. Remington Rand Company, 229 La. 651, 86 So.2d 522, wherein Mr. Justice McCaleb stated that "It is to be remembered that the statute the amendment by Act 29 of 1934 setting forth the two-year period does not countenance an unseasonable delay for filing compensation claims in any case as it provides a peremption of two years from the date of the accident within which all suits must be instituted."9
In the instant case the plaintiff did not incur total disability until November of 1959, five months after the running of the two-year period.
We also note that suit was brought sixteen months and twelve days after the date of the last compensation payment to the plaintiff and the cause of action is prescribed on that theory of recovery.10
After a careful consideration of the matter the Court is of the opinion that under the authorities referred to the plaintiff's cause of action is prescribed and/or perempted, and the suit is dismissed.
1 Prescription is said to be "a peremptory and perpetual bar to every...
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Ancor v. Belden Concrete Products, Inc.
...the Roman Law. The exceptio peremptoria destroyed the subject matter or ground of the action. See LaBruzza v. Hardware Mutual Casualty Insurance Co., D.C., 207 F.Supp. 789, 790 n. 2 (1962). ...