Taylor v. Transocean Terminal Operators, Inc.

• Decision Date: 14 March 2001
• Docket Number: No. 2000-CA-0604.,2000-CA-0604.
• Citation: 785 So.2d 860
• Court: Court of Appeal of Louisiana — District of US
• Parties: Frank TAYLOR, Jr. v. TRANSOCEAN TERMINAL OPERATORS, INC.

785 So.2d 860

Frank TAYLOR, Jr. v. TRANSOCEAN TERMINAL OPERATORS, INC.

No. 2000-CA-0604.

Court of Appeal of Louisiana, Fourth Circuit.

March 14, 2001.

Writ Denied June 15, 2001.

Philip R. Adams, Jr., Terrence J. Lestelle, Andrea S. Lestelle, Lestelle & Lestelle, Metairie, LA, for plaintiff/appellant.

Alan G. Brackett, Daniel J. Hoerner, Mouledoux, Bland, Legrand & Brackett, New Orleans, LA, for defendant/appellee.

Before: ARMSTRONG, JONES and LOVE, JJ.

ARMSTRONG, J.

This is a personal injury case. The plaintiff, who is a longshoreman, was stabbed while at work, by a fellow employee. The plaintiff alleges that the stabbing was work-related, i.e. within the course and scope of his and the fellow-employee's employment, and that, therefore, his employer is vicariously liable. The defendant employer argues that, under the "exclusive remedy" provision of the Longshoreman and Harbor Worker's Compensation Act ("LHWCA"), 33 U.S.C. § 901 et. seq., its only liability is for compensation benefits and the plaintiff cannot sue the defendant employer in tort. The plaintiff responds that, because he is alleging an intentional tort, the exclusive remedy provision of the LHWCA is not applicable.

The defendant employer filed a peremptory exception of no cause of action. The trial court, evidently agreeing with the defendant employer's position as to the applicability of the exclusive remedy provision of the LHWCA, maintained the exception of no cause of action and dismissed the plaintiffs suit. The plaintiff then brought the present appeal. Because we agree with the considerable body of caselaw which states that the exclusive remedy provision of the LHWCA is not applicable to an intentional tort by (or attributable to) an employer, and in light of the apparent absence of any caselaw to the contrary we will vacate the judgment of the trial court and remand for further proceedings. Of course, we express no opinion as to the ultimate merits of the plaintiffs underlying case. We hold only that the plaintiff has stated a cause of action. In order to prevail, the plaintiff will still have to prove that the defendant employer is vicariously liable for the intentional tort of Bobby Young.

Plaintiff Frank Taylor was a Longshoreman. He was employed by defendant Transocean Terminal Operators, Inc. ("Transocean"). Mr. Taylor alleges that, while at work, he was stabbed by Bobby Young, who was another of Transocean's employees. Mr. Taylor also alleges that the stabbing occurred within the course and scope of his employment and Bobby Young's employment, as a result of an employment-related altercation, so that the defendant is vicariously liable for the stabbing.

The issue presented on appeal is a purely legal one: In the case of an intentional tort by (or attributable to) the employer, is the "exclusive remedy" provision of the LHWCA, 33 U.S.C. § 905, applicable so that the employee may recover only compensation benefits and is barred from bringing a tort action against the employer?¹

The notion that a claim for an intentional tort committed by an employer is an exception to a statutory exclusive remedy compensation scheme is familiar in the context of Louisiana's worker's compensation law. Louisiana's worker's compensation statute provides that it does not affect the liability of the employer for civil liability resulting from an intentional act. La. R.S. 23:1032.B. Thus, it has been held that an intentional tort by an employer is not subject to the "exclusive remedy" provision of Louisiana's worker's compensation law and may give rise to a tort action by the employee against the employer. See, e.g., Bazley v. Tortorich, 397 So.2d 475 (La.1981)

. This is typical of state worker's compensation laws. Bazley, 397 So.2d at 480 (citing 2A Larson, The Law of Workmen's Compensation §§ 68-69 (1976)).

The complicating factor with respect to the LHWCA is that the LHWCA does not have a specific provision expressly stating that an employer's intentional tort is an exception to the statute's "exclusive remedy" provision. Nevertheless, over the last twenty years, a number of court decisions, from Louisiana and from other jurisdictions, have stated that an employer's intentional tort is an exception to the exclusive remedy provision of the LHWCA and that, in such cases, the employee may bring a tort action against the employer. The decisions so stating included recent ones from Louisiana's First and Fifth Circuit Courts of Appeal. See Malbrough v. Halliburton Logging Services, Inc., 97-0378 (La.App. 1 Cir. 4/8/98), 710 So.2d 1149, 1152

; Gauthe v. Asbestos Corp., 97-941 (La.App. 5 Cir. 1/27/98), 708 So.2d 761. Other decisions so stating include ones from the federal district courts for the Eastern and Western Districts of Louisiana. See Johnson v. Odeco Oil & Gas Co., 679 F.Supp. 604, 606-607 (E.D.La.1987); Sharp v. Elkins, 616 F.Supp. 1561, 1565 (W.D.La.1985).

The position that an intentional tort presents an exception to the exclusive remedy provision of the LHWCA is not new. Two cases so stated at least twenty years ago. See Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 316 (D.Me.1981)

; Houston v. Bechtel Associates, 522 F.Supp. 1094, 1096 (D.D.C.1981). See also Espadron v. Baker-Hughes, Inc., 97-1951 (La. App. 4 Cir. 4/22/98) 714 So.2d 60, 62 (plaintiff, while entitled to LHWCA compensation benefits "may not bring a claim against [his employer] for non-intentional tort.) 33 U.S.C. § 905". In contrast to this line of caselaw, we have been cited no cases holding that the LHWCA's exclusive remedy provision applies to an employer's intentional tort.

Transocean's response to all of the cases on point is to argue that the statements of those cases, that an employer's intentional tort constitutes an exception to the LHWCA's exclusive remedy provision, are all "dicta". Transocean bases its argument upon the fact that, in each of the cases in which the issue of employer tort liability for intentional tort was squarely presented, the court ultimately determined that the conduct sued upon did not constitute an intentional tort but, instead, constituted negligence or some level of culpability less than an intentional tort. However, a review of those decisions compels the conclusion that the pronouncements in those cases are not mere "dicta". The courts' opinions make clear that each adopted the position that an intentional tort constitutes an exception to the LHWCA's exclusive remedy provision prior to turning to the issue of whether there was, in fact, an intentional tort present in the cases before them. If they had considered the LHWCA's exclusive remedy provisions to be applicable even to cases of employer intentional torts, then they would not have had any need to go on to decide whether there was, in fact, an intentional tort. The fact that, in each case, the courts found that there was no intentional tort simply reflects how strictly they applied the exception for intentional torts. See, e.g., Austin, 508 F.Supp. at 316

("Nothing short of a specific intent to injure the employee falls outside of the scope of the [LHWCA]".); Johnson, 679 F.Supp. at 606-607 (willful and wanton misconduct not sufficient to make exception applicable). In any event, even if we were to accept the characterization of these decisions as "dicta", it would certainly be a substantial and uniform body of dicta including decisions both local and national, both state and federal, both recent and long-established and, perhaps most strikingly, apparently...