Opinion
No. 00-2303
October 18, 2000
ORDER AND REASONS
Before the Court are Plaintiff Rochelle Puissegur's Motion to Remand and Defendant Suntory Water Group, Inc.'s Motion for Summary Judgment. For the following reasons, Defendant's Motion is GRANTED and Plaintiffs' Motion is DENIED AS MOOT.
A. BACKGROUND
This case arises out of the workplace death of Scott Joseph Puissegur on August 3, 1999. At issue in the instant motions is whether plaintiff Rochelle Puissegur, the dccedent's survivor, is limited to the remedies provided by the Louisiana Workers' Compensation Law, La.R.S. 23:1031 et seq., or whether she may avail herself of the Law's intentional act loophole and recover tort damages under the Louisiana Civil Code.
Scott Puissegur was employed as a truck mechanic by Defendant Suntory Water Group, Inc. ("Suntory") at its Orleans Parish Kentwood Springs facility. On August 3, 1999, Mr. Puissegur was ordered, apparently by his superiors, Defendants Jerry Blanchard and Ralph Hepting, to replace the starter on a forklift. Mr. Puissegur jacked up the forklift with a floor jack but did not use jack stands to keep it in place. While he was under the forklift, it fell and caused his death.
Defendant Ralph Hepting is incorrectly named as Ralph Hepton in the Petition.
On June 20, 2000, Mr. Puissegur's survivor, Rochelle Puissegur, filed the instant action seeking survivor and wrongful death damages for her and her minor daughter in Louisiana state Court. On August 4, Defendants removed the action to this Court on the basis of diversity jurisdiction. Although Defendants Blanchard and Hepting are Louisiana residents, Defendants argue that they were fraudulently joined to destroy diversity. Defendants assert that there is no possibility of recovery against Blanchard and Hepting under the Workers' Compensation Law and that recovery against Suntory is limited to workers? compensation benefits. Accordingly, Defendants have flied a Motion for Summary Judgment. In her Motion to Remand and Opposition to Summary Judgment, Ms. Puissegur argues that she is not limited to workers' compensation remedies because she has alleged that Mr. Puissegur's death was the result of an intentional act within the meaning of the Louisiana Workers' Compensation Law, La.R.S. 23:1032(B).
B. LAW AND ANALYSIS
In Louisiana, workers' compensation is the exclusive remedy for a workplace injury unless the injury was caused by an intentional act. See La, R.S. 23:1032(A)(1)(a) and (B). In Bazley v. Tortorich, 397 So.2d 475 (La. 1981) (Dennis, J.), the Louisiana Supreme Court held that "the words 'intentional act' [as used in the Workers' Compensation Law] mean the same as 'intentional tort' in reference to civil liability." Id. at 480. Thus, "[t]he meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did." Id. at 482. "The substantially certain test is satisfied when an employer consciously subjects an employee to a hazardous or defective work environment where injury to the employee is nearly inevitable — that is, injury is 'almost certain' or 'virtually sure' to occur or is incapable of being avoided." Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1327 (5th Cir. 1996) (citing Kent v. Jomac Prods., Inc., 542 So.2d 99, 100 (La.App. 1st Cir. 1989)).
This statute provides in pertinent part that
Except for intentional acts . . ., the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, . . . as against his employer, or any . . . employee of such employer . . ., for said injury, or compensable sickness or disease.
Nothing in this Chapter shall affect the liability of the employer, or any . . . employee of such employer . . . to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
Ms. Puissegur argues that her case falls within the intentional act loophole of the workers' compensation scheme because the Defendants were aware of "serious safety problems and hazards associated with Scott Puissegur's repairing of the forklift . . . and . . . knowingly, intentionally and purposefully allowed and required Scott Puissegur to perform work on the forklift with notice of serious safety violations and with full understanding that substantial bodily injury and/or death was substantially certain to result from the serious safety problems and violations." Petition ¶ 11 (emphasis added). Ms. Puissegur alleges that, in order to increase profits and productivity, Suntory intentionally failed to provide proper training, facilities and equipment for repairing forklifts.
In Guillory, the Fifth Circuit discussed the propriety of resolving on summary judgment an issue of intent under the Louisiana Workers' Compensation Law. Although summary judgment is "rarely proper when an issue of intent is involved, the presence of an intent issue does not automatically preclude summary judgment." Guillory, 95 F.3d at 1326. In order to deny a motion for summary judgment, the Court must find evidence that demonstrates a genuine issue of material fact as to intent. Id. at 1327. Moreover, in this context, the Court must be mindful that the "intentional act loophole" to Louisiana's workers' compensation system is narrowly construed. Id. at 1328. Neither the existence of a "high probability of injury," "recklessness" nor "gross negligence" constitute intent. Id. (citing Armstead v. Schwegmann Giant Super Mkts., Inc., 618 So.2d 1140, 1142 (La.App. 4th Cir.), writ denied, 629 So.2d 347 (La. 1993), and King v. Schuylkill Metals Corp., 581 So.2d 300, 302 (La.App. 1st Cir.), writ denied, 584 So.2d 1163 (La. 1991)); Brown v. P.S. Sons Painting, Inc., 680 F.2d 1111, 1113 (5th Cir. 1982) (citingBazley); Bazley, 397 So.2d at 480 (noting that courts in most states have refused to stretch the intentional act exception to include negligence, recklessness, or constructive intent). Instead, "[t]o qualify for the very narrow intent exception, Louisiana requires a strong link between the employer's conduct and the employee's injury." Guillory, 95 F.3d at 1328 (citing Williams v. Gervais F. Favrot Co., 573. So.2d 533, 541 (La.App. 4th Cir.), writ denied, 576 So.2d 49 (La. 1991)).
As Professor Larson has written,
Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, willfully failing to furnish a safe place to work, or even willfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.
In Brown v. P.S. Sons Painting, Inc., an employee was permanently injured when the scaffolding on which he worked broke, causing him to fall into the Red River. Attempting to avoid the exclusive remedy rule, the employee claimed that his injuries were the result of the defendants' intentional acts, which included knowingly purchasing inferior pipe despite the fact that injury was substantially certain to occur were it to break and intentionally forcing him to work under dangerous conditions, without a proper life preserver, safety line, or belt. 680 F.2d at 1113. Like Ms. Puissegur, the plaintiff in Brown "relie[d] heavily on alleged OSHA violations by the defendants," in his case the failure to test the pipe to see if it could hold the OSHA requirement of four times the intended load. Id. at 1113-14. Notwithstanding these allegations, the Fifth Circuit noted that "Luisiana courts have made clear that violations of safety regulations are not sufficient to avoid the preclusive effect of La.R.S. 23:1032" and that "the failure to provide a safe work area, safety instructions, or safety devices [does not] constitute 'intentional acts' for purposes of eluding the exclusive remedy of La.R.S. 23:1032." Id. at 1114 (citations omitted). The Fifth Circuit found that, although the plaintiff might have stated a claim for gross negligence or recklessness, he failed to show that the defendants "desired to bring about his fall or that his fall was substantially certain to occur." Id. Admitting that "the distinction between a highly foreseeable risk and an intentional tort is a matter of degree," the court nonetheless affirmed summary judgment against the plaintiff on the grounds that it could not "stretch the meaning of 'intent' beyond its statutorily defined limits." Id. (quoting Penton v. Southern Shipbuilding, Inc., 667 F.2d 500, 501 (5th Cir. 1982)).
Ms. Puissegur attempts to distinguish Guillory and Brown on the grounds that she has come forward with evidence that demonstrates the Defendants' intent. Ms. Puissegur submits the affidavit of Joseph Day, a forklift mechanic employed by Suntory at the Kentwood facility at the time of Mr. Puissegur's death. Mr. Day attests that he informed Defendants Blanchard and Hepting about "serious safety violations" at the Kentwood facility and had expressed to them his opinion that Mr. Puissegur was at serious risk of injury. Mr. Day attests that the alleged safety violations were "intentional" and that "Kentwood was not only aware of the safety violations but that [it] intentionally violated these safety standards to increase productivity and to increase profits." Moreover, Mr. Day attests that Defendants Blanchard and Hepting "knowingly placed Scott Puissegur in a position in which serious bodily injury or death was going to happen."
Even assuming the truth of Mr. Day's attestations, the Court finds that Ms. Puissegur, like the plaintiff in Brown, has stated a claim for gross negligence or recklessness but has not provided evidence that the Defendants desired to bring about Mr. Puissegur's death or that his death was substantially certain to occur. Mr. Day's testimony tends to support a conclusion that Defendants failed to provide a safe work area, safety instructions, and safety devices, but such omissions do not constitute "intentional acts" within the meaning of La.R.S. 23:1032. Ms. Puissegur is confined to the remedies provided in the Workers' Compensation Law and, therefore, cannot bring a claim of negligence against any of the Defendants. Under these circumstances, summary judgment is appropriate. In light of this finding, the Court need not and does not rule on Ms. Puissegur's Motion to Remand.
C. CONCLUSION
Plaintiff has failed to bring forth sufficient evidence to support her claim that the Defendants desired to bring about Scott Joseph Puissegur's death or that his death was substantially certain to occur. Accordingly, she is confined to the remedies provided by the Louisiana Workers' Compensation Law.
IT IS ORDERED that Defendant Suntory Water Group, Inc.'s Motion for Summary Judgment is GRANTED and Plaintiff Rochelle Puissegur's Motion to Remand is DENIED AS MOOT.
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If these decisions seem rather strict, one must remind oneself that what is being tested here is not the degree of gravity or depravity of the employer's conduct, but rather the narrow issue of intentional versus accidental quality of the precise event producing injury. The intentional removal of a safety device or toleration of a dangerous condition may or may not set the stage for an accidental injury later. But in any normal use of the words, it cannot be said, if such an injury does happen, that this was deliberate infliction of harm comparable to an intentional left jab to the chin.2A A. Larson, The Law of Workmen's Compensation, § 68.13 at 13-22 to 13-27 (1983) (as cited in Millison v. E.I. du Pont de Nemours Co., 501 A.2d 505, 510 (N.J. 1985)).