Garrett v. Adcock Construction Company et al

Filing 20

ORDER & REASONS denying 12 12(b)(6) Motion to Dismiss. Signed by Judge Carl Barbier on 9/24/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEFFREY GARRETT

CIVIL ACTION

VERSUS

NO: 14-1198

ADCOCK CONSTRUCTION CO., ET AL

SECTION:
J(5)

ORDER AND REASONS
Before the Court is a 12(b)(6) Motion to Dismiss (Rec. Doc.
12) filed by Defendant, Adcock Construction Company ("Adcock"), as
well as an Opposition (Rec. Doc.
("Plaintiff"),

and

Adcock's

15) by Plaintiff Jeffrey Garrett

Reply

(Rec.

Doc.

17).

Having

considered the motion, the parties’ submissions, the record, and
the applicable law, the Court finds, for the reasons expressed
below, that the motion should be DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
This claim derives from injuries Plaintiff allegedly sustained
as a contracted employee of Adcock. In 2008, Adcock contracted with
Prism Hotels Corporation to renovate all guest rooms at the Astor
Crown Plaza Hotel in New Orleans and subsequently hired Plaintiff
to perform furniture refinishing work as part of the project. (Rec.
Doc. 1-1, p. 1-2; Rec. Doc. 15, p. 1). Plaintiff alleges that on
September 23, 2008 he was working at the hotel renovating armoires
in one of the hotel rooms. While he was in the process of creating

1

ventilation to deal with the fumes generated by the refinishing,
he alleges he "sustained a severe cut to his arm which subsequently
resulted in numerous infections and multiple injuries." (Rec. Doc.
15, p. 2; Rec. Doc. 1-1, p. 2). On March 31, 2014, Plaintiff filed
suit against Adcock and Adcock's insurance company (which Plaintiff
has

fictitiously

named

ABC

Insurance

Company)

alleging

that

Adcock's negligence, including its failure to provide a safe work
environment and enact adequate safety standards, served as the
cause in fact of Plaintiff's injuries. (Rec. Doc. 1-1, p. 2-3).
Plaintiff seeks damages for pain and suffering, mental anguish,
medical expenses, and loss of income. (Rec. Doc. 1-1, p. 3). Adcock
removed the case to this Court on May 27, 2014.
On August 4, 2014, Adcock filed the instant motion seeking
dismissal of the case on the basis that Plaintiff's claim has
prescribed. (Rec. Doc. 12-1, p. 2).
PARTIES' ARGUMENTS
Adcock argues that Plaintiff's complaint should be dismissed
for

failing

to

state

a

plausible

claim

on

the

basis

that

prescription has run. Adcock argues that because Plaintiff alleges
he sustained injury on September 23, 2008, he had only "one year,
or until September 23, 2009, to bring his suit for negligence
against Adcock." (Rec. Doc. 12-1, p. 3).
Plaintiff

argues

that

contrary

to

Adcock's

assertion,

prescription has not yet run on his claim. Plaintiff asserts that

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on September 23, 2009, he filed a workers' compensation claim with
the Louisiana Office of Workers' Compensation ("OWC") against
Adcock and other parties. The Office of Workers' Compensation
granted summary judgment in favor of Adcock upon a finding that
Garrett was not an employee of Adcock at the time of the incident.
(Rec. Doc. 15, p. 2). Plaintiff appealed this decision to the
Louisiana Fourth Circuit Court of Appeal, which on August 13, 2013
affirmed the ruling and dismissed Garrett's claim. Garrett argues
that

the

filing

of

his

claim

with

the

Office

of

Workers'

Compensation interrupted prescription, which ultimately commenced
upon the Fourth Circuit's dismissal of the claim on August 13,
2013. As such, Plaintiff contends that his claim would not have
prescribed until August 13, 2014, and thus, his filing of the
instant claim on March 31, 2014 was proper.
In its Reply, Defendant argues that if the Court accepts
Plaintiff's assertion that the filing of his workers' compensation
claim interrupted prescription of his tort claim against Defendant,
that prescription resumed running from the date the OWC entered
judgment on the claim, and not when the Fourth Circuit affirmed the
judgment. (Rec. Doc.17-2, p. 2-3). As such, Defendant contends that
Plaintiff's tort claim prescribed on September 17, 2013, one year
from the OWC's judgment, making his filing of the present lawsuit
on March 31, 2014 untimely.
LEGAL STANDARD

3

“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
enough facts to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is
facially plausible when the plaintiff pleads facts that allow the
court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. A court must accept all
well-pleaded facts as true and must draw all reasonable inferences
in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th
Cir. 1996).

The court is not, however, bound to accept as true

legal conclusions couched as factual allegations. Iqbal, 556 U.S.at
678.
DISCUSSION
Generally, the party asserting an exception of prescription
bears the burden of proof, however, the burden of showing that a
claim

has

not

prescribed

switches

to

the

plaintiff

"when

prescription is evident from the face of the pleading." Brees v.
Houser, No. 13-4760, 2014 WL 3587333 at *3 (E.D. La. Jul. 21, 2014)
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(Berrigan, J.).

The nature of the cause of action determines the

applicable prescriptive period. Because actions for negligence
sound in tort, they are considered delictual actions. Lemon v. Mike
Smith Forest Products, LLC, No. 07-6540, 2009 WL 2765648 at *2
(E.D. La. Aug. 26, 2009) (Lemelle, J.) ("A delictual action is one
arising from intentional misconduct, negligence, or other offenses
and quasi-offenses."). As such, claims of negligence are subject to
a one-year liberative prescription period which "commences to run
from the day injury or damage is sustained." LA. CIV. CODE ANN. art.
3492 (1983).
The running of prescription will be interrupted when the party
against whom prescription runs commences an action in a "court of
competent jurisdiction and venue." LA. CIV. COD. ANN. art. 3462
(1982). The Supreme Court of Louisiana has recognized that "when a
lawsuit is filed . . . in a competent court, prescription is
interrupted because the legal system is put into motion and the
purposes of prescriptive laws are satisfied." Gary v. Camden Fire
Ins.

Co.,

96-0055

interruption

of

(La.

7/2/96);

prescription

676

against

So.2d

one

553,

solidary

556.

“The

obligor

is

effective against all solidary obligors....” LA. CIV. CODE ANN. art.
1799 (1984). If a court determines that prescription has been
interrupted,

"the

time

prescription

"commences

that
to

has

run

run

anew

is
from

not
the

interruption." LA. CIV. CODE ANN. art 3466 (1983).

5

counted,"
last

day

and
of

Plaintiff argues that the filing of his workers' compensation
claim with the Louisiana OWC within one year of the alleged
incident was sufficient so as to interrupt prescription of all
subsequent tort claims arising from the incident, in part because
"his exclusive remedy was under the Workers' Compensation Act."
(Rec. Doc. 15, p. 7). The Louisiana Supreme Court has repeatedly
held that the filing of a workers' compensation claim interrupts
prescription as to subsequent claims in tort law. Williams v.
Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1390 (La.
1993); Gary, 676 So.2d at 556. Citing to this precedent, Louisiana
courts have recognized that "because the OWC is the only forum
where an employee can bring a claim for a work-related injury . .
. the OWC is a court of competent jurisdiction for the purposes of
interrupting prescription against a third-party tortfeasor who is
jointly or solidarily liable." Gray v. Mounir, 99-538 (La. App. 3
Cir. 11/3/99); 746 So.2d 746, 749. Additionally, this Court has
relied on the aforementioned state precedent in acknowledging that
the filing of a worker's compensation claim with the OWC is
sufficient to interrupt prescription as to the employer or other
solidary tortfeasors. Andrews v. Strauss, No. 02-0228, 2002 WL
31375610 at *4 (E.D. La. Oct. 18, 2002) (Barbier, J.) (relying on
Gray in finding that filing a claim seeking compensation benefits
from

an

employer

Compensation

Act

under

the

interrupts

Longshore

prescription

6

and

Harbor

against

Workers'

"third-party

tortfeasors who are . . . solidarily liable."). The law is clear
that

the

filing

of

a

workers'

compensation

claim

with

the

appropriate office interrupts prescription for any tort claims
arising out of the same incident. As such, Plaintiff's timely
filing of a workers' compensation claim against Adcock interrupted
prescription as to his personal injury claim.
Adcock asserts that a devolutive appeal does not suspend the
effect

of

a

judgment,

and,

therefore,

does

not

continue

interruption of prescription. (Rec. Doc. 17-2, p. 2-3). As such,
Adcock contends that prescription commenced as of the date of the
OWC's judgment dismissing Plaintiff's workers' compensation claim,
rather than the date of the Fourth Circuit's decision affirming
this judgment, causing Plaintiff's claim to prescribe on September
17, 2013. The Court finds Adcock's argument to be without merit.
Louisiana law clearly recognizes that when the filing of a claim
interrupts

prescription

of

a

lawsuit,

this

prescription

runs

continuously through the pendency of the claim. Louviere v. Shell
Oil Co., 720 F.2d 1403, 1408 (5th Cir. 1983) (certifying a question
of

law

regarding

the

continuous

nature

of

interruption

prescription for the Supreme Court of Louisiana).

of

The Louisiana

Supreme Court has also traditionally held that a claim is not
finalized so long as an application for rehearing is pending, and
until this rehearing is either conducted or the time to apply for
rehearing has expired, "there is no judgment." Crusel v. Tierce,

7

150 La. 893, 896 (La. 1921). A case is only considered finalized
and

"no

longer

pending

when

further

appellate

review

[is]

unavailable. " Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001)
(citing Williams v. Cain, 217 F.3d 303, 309 (5th Cir. 2000)).
Moreover, this Court has recognized that the filing of a timely
appeal may "continue the interruption of prescription under Article
3463." Treadwell v. St. Tammany Parish Jail, No. 13-5889, 2013 WL
9047424 at *8 (E.D. La. Dec. 16, 2013)(Wilkinson, J.). At the time
that Adcock contends prescription commenced, on the date of the
OWC's dismissal of Plaintiff's claims, Plaintiff was entitled to
appeal the OWC's judgment, an option which he timely pursued. As
such, Plaintiff's claim remained pending until the Fourth Circuit
issued a final decision affirming the OWC's judgment. The fact that
Plaintiff chose to pursue a devolutive appeal in no way impacts the
running of prescription for subsequent claims.

Because of this,

prescription did not begin to run on Plaintiff's tort claim against
Adcock until August 13, 2013, the date the Fourth Circuit issued
its

judgment

on

the

workers'

compensation

claim.

As

such,

Plaintiff's filing of the present lawsuit against Adcock on March
31, 2014 is timely. Additionally, because Adcock is both the
employer

in

the

workers'

compensation

claim

as

well

as

the

defendant in the present matter, there is no need for the Court to
address the issue of solidary liability.
Because

Plaintiff's

claim

filed

8

against

Adcock

had

not

prescribed as of the date of filing, dismissal of this claim for
the reasons alleged by Adcock is not appropriate.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the 12(b)(6) Motion to Dismiss (Rec.
Doc. 12) is DENIED.
New Orleans, Louisiana this 24th day of September.

_____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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