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Harris v. Olivier's Contrs.

Court of Appeal of Louisiana, Third Circuit

December 10, 2014

SYLVESTER HARRIS
v.
OLIVIER'S CONTRACTORS, ET AL

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Page 655

APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, NO. 12-C-1677-A. HONORABLE JAMES PAUL DOHERTY JR., DISTRICT JUDGE.

Frank Edward Barber, New Iberia, LA, COUNSEL FOR DEFENDANTS/APPELLANTS: Jason Olivier, Olivier's Contractors.

Craig Alan Davis, Lafayette, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Sylvester Harris.

Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges. Amy, J., concurs in part, dissents in part, and assigns reasons.

OPINION

Page 656

[14-765 La.App. 3 Cir. 1] EZELL, Judge.

Sylvester Harris filed suit for damages in district court pursuant to La.R.S. 23:1032.1 asserting that his employer neither had workers' compensation insurance nor was self-insured, and failed to pay a workers' compensation judgment for sixty days after it was final. Jason Olivier d/b/a Olivier's Contractors (hereinafter collectively referred to as Mr. Olivier) appealed the trial court judgment which awarded $205,547.90 in damages to Mr. Harris.

FACTS

Mr. Harris was employed as a " jack man" in 2009 by a business that raised houses to higher elevations. During that time many houses were raised due to hurricane standards. On March 13, 2009, Mr.

Page 657

Harris placed a shimmy underneath a house when the jack bled out and an I-beam fell, smashing his left hand. After releasing his hand, Mr. Harris was transported to Abbeville General Hospital. Subsequently, he was transferred to Our Lady of Lourdes Regional Medical Center where an orthopedic surgeon performed surgery on his hand. For the next five to six months, Mr. Harris received physical therapy on his hand.

A default judgment awarding temporary total disability benefits, medical expenses and penalties and attorney fees against Mr. Olivier was confirmed in the Office of Workers' Compensation on January 9, 2012. When the judgment was not paid, Mr. Harris filed the present suit pursuant to La.R.S. 23:1032.1 against Mr. Olivier and Terry Engeron on April 2, 2012. After a preliminary default was entered against Mr. Olivier, Mr. Olivier answered the suit. He then filed peremptory exceptions of prescription, no cause of action, and no right of action on December 12, 2013, the day of trial. Ruling on the exceptions was deferred until after trial. The trial court found in favor of Mr. Harris and against Mr. Olivier and [14-765 La.App. 3 Cir. 2] awarded him $125,000.00 in general damages, $25,947.90 for medical expenses, and $54,600.00 for lost wages. Mr. Olivier then filed the present appeal.

NEGLIGENCE

In his first assignment of error, Mr. Olivier claims that the trial court erred relieving Mr. Harris of the burden of establishing that Mr. Olivier was negligent in causing Mr. Harris's injuries. Mr. Olivier argues that La.R.S. 23:1032.1 requires that a petitioner prove all of the elements of a tort action, which includes establishing that any injuries were caused by the negligence of the defendant.

Louisiana Revised Statutes 23:1032.1 provides that any employee has a right to sue a " direct employer for all legal damages" when the employer:

fails to secure workers' compensation insurance or proper certification of self-insured status pursuant to R.S. 23:1168, and fails to pay a final judgment for sixty days after the parties have exhausted their rights of appeal and no other insurance or self-insurance policy or contract of workers' compensation coverage has paid the benefits due under this Chapter.

There is no reported case law on the application of La.R.S. 23:1032.1 except for two cases from this court that simply refer to La.R.S. 23:1032.1 as permitting an employee to assert a claim in tort but which do not address the application of La.R.S. 23:1032.1. See Hector v. Mo-Dad Env't. Serv., LLC 13-1184 (La.App. 3 Cir. 3/5/14), 134 So.3d 133, 139 n.1; and Eads v. Chartis ...


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