mpensation Judge Presiding
Lawrence Curtis
Attorney for Plaintiff/Appellant,
Lafayette, LA
Ronald Kratzer
Travis R. LeBleu
Attorney for Defendants/Appellees,
Baton Rouge, LA
PPM Contractors, Inc. and Louisiana
Louisiana
Workers' Compensation
Association
BEFORE: GONZALES, KUHN, CIACCIO, JJ.
1 2
2
We note while plaintiff listed Admiral Insurance Agency as PPM's insurer, the answer was filed on behalf of
PPM and Louisiana Workers' Compensation Corporation as its insurer.
3
The exhibits were admitted into evidence at the hearing on the exception for prescription.
4
The petition also alleges that PPM was providing services to Ocean Energy at its facility under a master
servant agreement between the parties.
5
Plaintiff testified at the prescription hearing that Ocean Energy attempted to affect service upon him under
the long arm statute, La. R.S. 13:3201 et seq., but was unsuccessful.
CIACCIO, J.
The sole issue in this appeal is one of prescription. Ronald Kratzer (plaintiff) filed a
disputed claim for workers' compensation on August 9, 1999 against his employer, PPM
Contractors and its insurer, Admiral Insurance Agency. Plaintiff's claim alleged that on
September 16, 1997, he was "operating a cherry picker . . . [that] rolled over causing injury
to [him]." An answer generally denying plaintiff's assertions was filed on the behalf of PPM
Contractors and Louisiana Workers' Compensation Corporation
2
(defendants).
Defendants filed a peremptory exception of prescription, which the Workers'
Compensation Court (WCC) granted. Plaintiff appealed.
Plaintiff contends the WCC erred as a matter of law in finding his claim had
prescribed. He references the exhibits attached to his Memorandum in Opposition to the
Exception of Prescription in the record, where a copy of the pleadings entitled "Ocean
Energy, Inc. v. PPM Contractors, Inc., Admiral Insurance Company and Ronald Kratzer,"
was filed in the Twenty-Seventh Judicial District Court in the Parish of St. Landry, Docket
Number 98-C-3543 "A."
3
The pleadings established that on September 11, 1998, Ocean
Energy, Inc. filed a petition for damages against PPM, Admiral Insurance, and plaintiff
asserting that plaintiff, in the course and scope of his employment with PPM negligently
operated a cherry picker owned by Ocean Energy and caused damage to the cherry picker
and to Ocean Energy's low pressure transfer pipeline, which occurred on September 16,
1997.
4
On October 14, 1998, an answer was filed on the behalf of PPM, Admiral, and
plaintiff.
5
On December 22, 1998, plaintiff filed a reconventional demand, maintaining that
Ocean Energy was liable for injuries he sustained as a result of the accident described in
the original petition. Plaintiff now appeals from the dismissal of his worker's compensation
suit maintaining that his reconventional demand to the property damage action previously
filed by PPM's solidary obligor, Ocean Energy, Inc., was timely filed within the ninety day 3
period allowed by Louisiana Code of Civil Procedure article 1067 for filing incidental
demands, and interrupted prescription in the instant workers' compensation case.
LAW AND ARGUMENT
Under Louisiana Civil Code article 3462, "Prescription is interrupted when . . . [t]he
obligee commences action against the obligor, in a court of competent jurisdiction and
venue." Louisiana Civil Code article 1799 provides that "the interruption of prescription
against one solidary obligor is effective against all solidary obligors . . . ." The cases have
held that third party tortfeasors and employers involved in suits arising out of the same
injury/accident are solidary obligors. See Williams v. Sewerage & Water Bd. of New
Orleans, 611 So.2d 1383, 1389 (La. 1993); Scott v. Sears, Roebuck and Co., 99-0571,
p. 6 (La. App. 1st Cir. 12/22/00), 778 So.2d 50, 54. Thus, when an injured employee timely
files a claim seeking workers' compensation benefits from his employer, prescription is
interrupted with regard to an injured employee's claim against the third party tortfeasor.
Conversely, when an injured employee timely files a claim against a third party tortfeasor,
prescription is interrupted with regard to his claim for workers' compensation benefits
against an employer.
Defendants do not dispute that plaintiff's injury resulted from the same accident or
occurrence asserted in the tort claim as well as in the workers' compensation claim, nor is
it disputed that defendants and the third party tortfeasor, Ocean Energy, are solidary
obligors. Therefore, the issue before us is whether plaintiff's reconventional demand was
timely filed against Ocean Energy and served as a suspension of prescription as provided
in Code of Civil Procedure article 1067, and an interruption of prescription against
defendants.
Defendants maintain while plaintiff's reconventional demand may have been
considered timely for the purposes of the action filed by Ocean Energy, it did not interrupt
prescription for plaintiff's disputed workers' compensation claim. Defendants contend that
Article 1067 is very specific and only applies to incidental actions file within ninety days of
the main demand, and there is no indication that it was intended to have a broader
application, such as in this instance, where plaintiff's workers compensation claim
prescribed before he filed his reconventional demand. Defendants assert pursuant to 4
Louisiana Revised Statute 23:1209, plaintiff had until September 16, 1998, one year from
the date of the accident to assert his claim for benefits with the Office of Workers'
Compensation, consequently; on December 22, 1998, when plaintiff filed his
reconventional demand, prescription had already accrued as to his workers' compensation
claim.
Plaintiff argues that the exemption from prescription for incidental demands
provided by Code of Civil Procedure article 1067 was applicable to his timely filed
reconventional demand and served to interrupt prescription for his workers' compensation
claim such.
A reconventional demand is an incidental demand. See La. Code Civ. Proc. art.
1031(B). Code of Civil Procedure article 1067 provides that,
An incidental demand is not barred by prescription or peremption if it
was not barred at the time the main demand was filed and is filed within
ninety days of date of service of main demand or in the case of a third party
defendant within ninety days from service of process of the third party
demand.
Code of Civil Procedure article 1067 is an exemption statute, which during its
ninety-day period exempts any incidental demand from any applicable prescriptive statute
whose prescriptive period would accrue during that ninety-day period. Smith v. Hartford
Accident & Indemnity Co., 399 So.2d 1193, 1196 (La. App. 3 Cir.1981), writ denied,
406 So.2d 604 (La. 1981); State Farm Mut. Auto. Ins. Co. v. Smith, 448 So.2d 209, 210
n.3 (La. App. 1 Cir. 1984).
In order to determine if plaintiff's disputed workers' compensation claim was not
barred by prescription it must be found that the reconventional demand he filed against
defendants' solidary obligor, Ocean Energy, met the criteria of Code of Civil Procedure
article 1067. First, we must determine if plaintiff's reconventional demand was not barred
by prescription at the time Ocean Energy's main demand/petition was filed. Ocean
Energy's claim for property damage, the main demand in the previously filed case, was
filed September 11, 1998. Using September 16, 1997, the date of injury, as the date
prescription would have commenced on plaintiff's claim (the date the WCC determined the
injury occurred), September 16, 1998 would have been the last date on which plaintiff could
have filed his claim. Therefore, plaintiff's claim was not barred on September 11, 1998 5
when Ocean Energy filed its main demand. Second, we must determine if plaintiff's
reconventional demand was filed within ninety days of the date of service of Ocean
Energy's main demand. Plaintiff asserted and the WCC found that he was never served
with Ocean Energy's main demand. However, the WCC also found that counsel for PPM
answered Ocean Energy's demand on the behalf of PPM and plaintiff, which constituted a
general appearance whereby plaintiff submitted himself to the jurisdiction of the court and
waived the right to raise the failure to timely request service. See Poret v. Billy Ray
Bedsole Timber Contractor, Inc., 31,531, p. 2 (La. App. 2d Cir. 1/22/99), 729 So.2d
632, 633; Sam v. Feast, 2000-1163, p. 3 (La. App. 1st Cir. 3/28/01), _ So.2d _. The
record reflects that the answer was filed on October 14, 1998. Since plaintiff was not
served with the main demand, the date he waived service, October 14, 1998, becomes the
appropriate date under the provisions of Article 1067, in which the ninety days commenced
to run for him to file his reconventi onal demand. Computing the time for filing an incidental
demand from according to Code of Civil Procedure article 5059, plaintiff's reconventional
demand was filed well within the time delays. Therefore, plaintiff's incidental demand was
timely filed as provided by Article 1067. Under the provisions of Article 1067 the incidental
demand was not barred by prescription. Consequently, since plaintiff's reconventional
demand was timely filed against Ocean Energy, a solidary obligor, prescription was
interrupted against defendants as well.
For these reasons, we reverse the judgment of the WCC and reinstate plaintiff's
workers' compensation claim. The matter is remanded to the WCC for further proceedings
and costs are assessed against defendants.
REVERSED AND REMANDED.