Summary
In Payne v. Tonti Realty Corporation, 98-76 (La.App. 5 Cir., 6/30/98); 714 So.2d 1271, the plaintiff was injured when he was struck by a golf cart driven by a co-employee.
Summary of this case from Kelly v. CNA InsuranceOpinion
No. 98-CA-76.
June 30, 1998.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, NO. 481,749, STATE OF LOUISIANA, HONORABLE JO ELLEN GRANT, J.
Robert W. "Doc" Booksh, Jr., John B. Fox, New Orleans, for plaintiff-appellant.
Jack E. Truitt, Metairie, for TONTI Realty Corp., defendant-appellee.
Thomas J. Eppling, Robin Hoban Vogt, Staines, Eppling and Myers, Metairie, for Louisiana Workers' Compensation, defendant-appellee.
Kirsten B. David, R. Gray Sexton, Baton Rouge, for State Claims Adjusters, Inc., defendant-appellee.
Before GAUDIN, DUFRESNE and WICKER, JJ.
This is an appeal by James Payne from a September 29, 1997 district court judgment which:
(1) granted an exception of no cause of action filed by Tonti Realty Corporation (Payne's employer) and Julie Green (Payne's co-worker),
(2) granted an exception of no cause of action filed by the Louisiana Workers' Compensation Corporation, and
(3) granted an exception of no cause of action filed by State Claims Adjusters, Inc.
Payne was injured when struck by a golf cart driven by Green. He filed for workers' compensation benefits, which were paid. The current tort claim, the one now before this Court, is being pursued allegedly in accord with Weber v. State of Louisiana, 635 So.2d 188 (La. 1994). We find, as did the trial court, that Payne's claims are drastically different from those involved in Weber; consequently, we affirm the appealed-from judgment.
Payne contends in his tort action that Tonti failed to provide prompt treatment. The compensation act, however, provides a remedy for this in the form of penalties and attorney fees. The claimants in Weber did not have access to these claims as the worker had died before there was a judicial determination of his employer's possible arbitrary and capricious refusal to pay medical expenses. In any event, Weber is to be narrowly applied to the very particular facts of that case and does not allow a tort claim to run counter to the exclusive remedy provision of LSA-R.S. 23:1032.
AFFIRMED.