Linda Torres VS Louisiana Shrimp & Packing Company

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 1651 LINDA TORRES VERSUS LOUISIANA SHRIMP liP J J PACKING COMPANY Judgment Rendered On MAY Appeal from the Office of Workers Compensation District 9 In and for the Parish of Lafourche State of Louisiana Docket No 07 07926 Honorable Elizabeth C Lanier Joseph J Weigand Houma Jr Judge Presiding Counsel for Plaintiff Louisiana Appellant Linda Torres Sherri L Hutton Counsel for Defendant Kevin O Louisiana Bryon Shrimp Appellee Packing Co Marta Ann Schnabel New Orleans Louisiana BEFORE 9 PARRO McCLENDON AND WELCH JJ 8 2009 McCLENDON J In this workers workers compensation compensation judge of objection prescription Company LSPC case the granting of s filed a plaintiff Linda Torres appeals the peremptory exception raising the by defendant Louisiana Shrimp Packing We affirm FACTUAL AND PROCEDURAL BACKGROUND Ms Torres 24 2004 Workers alleged that the work related accident occurred disputed claim for compensation Her Compensation Administration exception of prescription and a a on memorandum in filed with the Office of was October 12 2007 parties and alleging essentially the compensation claim and based The on the response memorandum in documents court of suit district court same factual the a to LSPC s petition for February 6 2006 opposition to the exception exception of prescription tort an damages showing the in tort of action no cause Ms Torres filed the following same filing date in district on The the trial workers on support of the exception motion in outlining damage Ms an Torres attorney representing to their law office from filing supplemental exhibits by Ms Torres LSPCs exception of prescription the judgment of the district the failure to state parties orally argued the a in the tort two affidavits each from notice of were court dismissing the exception without prejudice and the judgment dismissing the suit based the exception of prescription filed by LSPC Ms Torres in the tort suit and each motion to dismiss the as judgment dismissing the petition Attached to her memorandum LSPC s memorandum in a naming the filing date of February 6 2006 opposition Hurricane Katrina court an attached was occurrence peremptory exception raising the objection of petition exhibited In a LSPC filed support to which petition for tort damages which had been filed in district same November on a cause but no of action evidence was exception in the workers compensation offered case 2 or introduced at After the trial the compensation judge WO assigned the following oral ruling tort reasons for her W hen court I prescription is brought in front of a workers compensation to basically check it out look at everything look at the am dates It has prescribed on its face When something on its face by prescribed then the burden of proof goes to the opposing party to show that there s been an interruption the documents has The is 11 24 04 injury claim in the Workers naturally on its face Further the exception of law under the workers January 3 no cause of action granted the defendant disputed compensation claim Finally after s By judgment signed was finding that the tort suit had prescription issue in the prescribed on tort suit was 9 5824 or compensation was The bases for should have been that the withdrawal by issue res judicata in the WCJ erred in no authority to finding that the argument before this court Ms Torres counsel focused at this court on compensation the its face argument that the filing of the workers 2008 essentially asserts prescribed exception of prescription rendered the However at oral pending May 28 compensation claim and that because the WCJ had determine the on an on in the dismissed further extended in the tort suit under LSA RS LSPC of its tort suit tort reviewing all of the exception of prescription position include arguments that prescription tort suit had for the hurricane appellate brief claimant appellant Ms Torres that the WO erred in the workers 2006 prescription and mentioned the dismissal of the compensation claim In her The theory of prescription and reviewing the articles under the WO prescription that exceptions to the prescription rule bring that up the WCJ noted the final date of on case are prescribed would have to related limited extension of suit Compensation form for a disputed Court was filed 12 12 07 So it looks like it has So then there opposing party And the 1008 tort suit which was at that time still appeal interrupted the running of prescription in the case Thus counsel timely filed 3 argued the disputed claim for APPLICABLE LEGAL PRECEPTS All workers compensation claims for payments due barred unless within are year after the accident one agreed upon the payments unless within or formal claim has been filed or falls run on the death the However when a workers running of prescription was Bologna Brothers 2001 3230 v parties have 1 Cir 2 14 03 compensation claim has prescribed interrupted suspended or 6 p a v 848 on its showing that the in some manner 6 21 02 La death Boudreaux party asserting it the burden is upon the claimant to prove the facts face or Initially the burden of Angelo Iafrate Construction 2002 0992 p 3 La App So 2d 3 6 injury year after the accident one LSA R S 23 1209A proving that prescription has to an Jonise 820 SO 2d 460 464 Boudreaux 2002 0992 at p 3 848 So 2d at 6 To meet the burden of be may introduced at trial proof on an support to pleaded when the grounds thereof do art 931 However considered evidence not or controvert any of the not appear from the in the record Denoux La 5 21 08 prescription must 5 p compensation or 2275 La 1 The p are La cases confront accepted 1 Cir App the factual v App as true Scott 12 22 00 findings are in the alleged 778 Sears v So 2d reviewed as such 2007 2143 In the absence of evidence Mitchell the on 6 p objection of and all petition Roebuck and Co 53 50 In workers using the manifest error Terrebonne Parish School Board v 1 Cir 4 2 03 843 So 2d 531 532 writ denied 2003 860 So 2d 1135 for the rule is evident evidence If mere attachment to the a memorandum or the lost alleged opposing party is prejudiced by object to admissibility at the time the documents are Lykes Brothers Steamship Company 2002 1377 p 7 on and Greenfield La 11 26 03 reason admissibility 3 1 be decided upon the facts clearly wrong standard 2002 1021 Management Services Inc 983 So 2d 84 88 allegations thereof 99 0571 Vessel v cannot be Documents attached to memoranda do not constitute evidence and cannot be considered appeal objections LSA C C P petition properly offered and introduced physically placed if it is even exception of prescription evidence 848 So 2d 30 33 4 offered La App brief confers opportunity as to evidence 1 Cir 5 9 03 to accrue Prescription that has commenced Lima interrupted has there run is Schmidt 595 So 2d 624 v to nothing but has not yet 631 filing of the suit is interrupted on 2552 p Lathan and same La 1 App 2001 2639 Cir prescription for a 12 28 01 4 6 pp cited therein cases in a workers Kratzer occurrence La art interruption 3462 resulting as long as a compensation claim may be tort suit a against the employer PPM Contracters v 1147 1 Cir 11 8 02 App 1148 Inc or claim LSA C C arts 3462 2000 Isaac see 836 So 2d 191 timely filed suit claim or The 803 So 2d finding that subsequent suit prescription emphasis added suspended by the timely filing of the 3 prescription If prescriptive period continues LSA C C art 3463 specifically or within the suit pending More based a 1992 Pursuant to LSA C C interrupt prescription may be interrupted by the filing of suit from the La may be run v 194 95 interrupted 3463 ANALYSIS Upon the filing of the defendant s exception of prescription in the disputed claim for the compensation the WO had the authority and the duty compensation claim prescribed on its face was timely filed the burden of submit sufficient evidence of the issue before the WCJ but whether the Because the proof shifted interruption was not plaintiff had e g Kratzer her 2000 2552 at pp burden 3 5 whether Ms Torres met her burden of review any evidence introduced which the claim of 836 So 2d at 195 After relevant error in interruption Kratzer to the claimant on to prove the workers was based See e g or To decide necessary for the WCJ to Isaac us and allegations in the disputed claim for compensation s interruption tort suit the act on 2001 2639 at p 6 2000 2552 at pp 3 5 803 So 2d at 1148 50 thoroughly reviewing the record before the WO an compensation claim concerning the filing of the was Thus actually prescribed 803 So 2d at 1148 50 proof it was Ms Torres to suspension of prescription or suspension of the running of prescription See compensation claim whether the tort suit had met to determine if assuming all of the to be true we find no finding that because the compensation claim had prescribed 5 on its face the burden shifted to Ms Torres cited in her oral reasons compensation calculation based a and the date of the claim had prescribed While we the wrong date for the on into prescription on the 2 lack prescription compensation claim October on evidence cannot of evidence be in the record 3 on we interruption an Therefore Ms established that the Torres after Hurricane Katrina considered compensation claim compensation c1aim 2007 by Ms Torres and LSPC 2007 2143 at p See Denoux her burden to prove in injury November of 2004 its face sympathize with the plight of in the filing of the disputed claim for the date of the the attachments to the memoranda admitted Although the WO inadvertently we on 983 So 2d at 89 the issue of the the properly issue Thus of based interruption of must conclude that Ms Torres failed or find 6 appeal on not suspension of prescription no error in the WCJ s in the grant of the exception of prescription For these reasons affirm the we judgment of the Office of Workers The costs of the Compensation Administration appeal assessed to the are appellant Ms Linda Torres AFFIRMED 2 This case documents School La App does not involve are treated Employees as motion a properly for summary judgment for which certain attached admitted evidence See LSA C C P arts 966 967 Ascension Credit Union 1 Cir 6 10 05 v Provost 916 So 2d 252 Saia Salter v Asher Harper Alford 2001 1038 La LLC App 2004 1227 1 Cir 7 10 02 825 So 2d 1257 3 To the extent that Ms argument to the WO can be characterized as a LSA R S 9 58248 2 defense to LSPC s exception of prescription the record again lacks the necessary admissible evidence and Ms Torres failed in her burden of proof to show that she was eligible for the additional extension See Parker v B K Construction Company Inc 2006 1465 pp 5 6 La App 4 Cir 6 27 07 962 So 2d 484 487 Torres s 6 LINDA TORRES NUMBER 2008 CA 1651 FIRST CIRCUIT VERSUS COURT OF APPEAL LOUISIANA SHRIMP PACKING COMPANY iJ tf STATE OF LOUISIANA WELCH DISSENTING I respectfully disagree decision in this about matter not with the only perpetuates contrary legislature to intent in s the great injustice a The case to Ms majority Torres s brought jurisprudence of this circuit and inconsistent with enacting The record in this La R S 9 5821 prevented from prescriptive period would have entitled to timely to period pursuant suit to the compensation a but for those filed her limited a entitled and underlying provisions limited establishes that tort due suit within the catastrophic effects tort set our seq to the catastrophic Torres applicable Ms Torres suit Therefore Ms Torres andor extension of the suspension the et the office of counsel for Ms on underlying her filing clearly matter effects of Hurricane Katrina tort in this by the devastating effects of Hurricane Katrina but it is also legally incorrect was majority opinion he was one year counsel was clearly applicable prescriptive forth in La R S 9 5824 Since Ms Torres suspension or extension of prescription for her underlying underlying tort suit interrupted prescription claim and the judgment of the workers on her workers compensation judge should be reversed In the aftermath of Hurricanes Katrina and Rita series of statutes for the benefit and purpose of which persons who were was to offices in the exercise of their legislature enacted a protection of the citizens of Louisiana the prevent injustice prevented by our inequity these hurricanes from and undue timely hardship access to courts to and legal rights including the filing of documents and pleadings as legislature authorized or required by law commanded that these statutes La R S 9 5821 A are Louisiana Revised Statutes 9 5822 A the time prescription during of period such that all claims that would have 4 2006 domiciled in Jefferson may that it catastrophic been seek timely Ms Orleans Kenner to until s previous the earliest and had d ue Mr to the had provides 2006 suspension proving by time a the a was Orleans and prescriptive of the preponderance of the and practicable Rita on that whose attorney parishes including legal but for the deadline would have 2006 they had residences in Silva and Mr flooding their New Orleans office was on they s file physically was Kenner Canal Street in New on Esplanade in West Schott further stated in their 5 feet were unable They also stated that on August New Orleans office and or or small satellite law office a extensive Katrina made landfall Ms Torres of all in had their main law office Jefferson Parish out or arose or counsel of record Jefferson Parish February blown 3 the individual affidavits of Riguer Silva and Arthur O Schott Orleans Parish to of action 9 5822 upon at through January met affidavits that damage cause effects of Hurricane Katrina Torres Louisiana R S limited suspenSIOn of R S 9 5822 La R S 9 5824 additional extension filed was According III an a 26 2005 August law office within certain a forth in La set evidence had or created prescribed during that period would lapse Notwithstanding La party who is domiciled in whose period liberally construed to effect its La R S 9 5821 A purposes January be to Furthermore the wind storm to return to and mold the office 29 2005 the date Hurricane being prepared for litigation in their located in an office with a window that was during the hurricane which resulted in the loss damage and destruction part of her file to reconstruct The attorneys averred that as a result of the the lost documents in her file and that Ms Torres 2 damage they s tort suit was filed on the earliest date possible February 6 2006 given the circumstances of their office after Hurricane Katrina Given these affidavits I believe that the record in this Ms Torres entitled was prescriptive period Presumably it was that there for this majority was an though both respective the prescription interruption or or at a At the court that the trial court on the hearing hearing no rendered erred in court sufficient to level allow this See also Ascension School Alford L L C Fontaine v a underlying tort suit her burden of proving to meet on Torres the issue of prescription 02 10 7 exception and arguments were heard judgment sustaining no or on on Ms even to their the 825 So 2d 1257 peremptory exception raising the objection of to the objection appeal no the motion for summary a evidence to court trial court Employees Credit Union v 10 App 1st Cir 6 the s was to held that it on that issue Provost Salter 05 was sufficient court decision of objection Harper 916 So 2d 252 257 Catholic Church of Archdiocese of New Orleans 3 noted consideration of the evidence and since the evidence court to review the introduced the memorandums exception raising to was This exception objection of prescription this 2004 1227 p 8 La Roman the considering the materials attached allow the trial court to rule was to App 1st Cir La both the on However since the trial I exception support of and in opposition prescription 9 5824 B defendant attached the relevant documents Asher 2001 1038 v RS suspension of prescription because introduce any evidence plaintiff and the and the trial at suit under La after Ms Torres filed these affidavits into the reason the trial court sustained 1260 1261 made suspension andor extension of the concludes that Ms Torres failed memorandums In Saia in tort establishes that voluntarily dismissed the peremptory exception raising the formally offer judgment additional of prescription that it had filed in response The failed to an underlying in her record the defendant objection to matter 652 So 2d 548 554 So 2d 787 App 4th Cir 1993 La Martin writ denied 93 2719 La Mid South Tank Utilities Co v App 4th Cir writ denied 616 So 2d 707 strictly require that the trial the raising objection of st The record in this hearing on the an unpublished matter evidentiary hearing on rule to After the issue parties made their the memorandums to the was reviewed by by prescription a respective were not specifically ruling consideration of that evidence that evidence should be reviewed of at was memoranda in parties Since the evidence in the record objection 99 and no the on exception oppositions and since there has been ruling to reviewed the file and all of the motions and to refused exception Thus it is apparent that the WCJ Emphasis added considered the documents attached prescription on an La 321 rehearing the WCJ then stated that it had the record and all the attachments to court 630 Sears Roebuck and Co v arguments and although the documents attached ready where the reflects that the WCJ sustained the objection of prescription offered into evidence 614 So 2d 319 1993 and Scott prescription 1 App Cir 3 101 0571 La hold court La 128 94 on the the WCJ in objection to this in court reviewing the WCJ s decision in that regard particularly in light of the fact that all the crucial evidence attached of the issue of prescription As in previously opposition to the to the was and necessary for exceptions not objection of s memorandum To conclude otherwise punished as the that prescription they filed her claim Ms Torres should not be s to Ms Torres noted the documents attached Ms Torres because of the level of destruction sustained legislature determination in dispute clearly demonstrate that counsel for Katrina and that a as soon for the was contained in the record unable to file her claim by their office during Hurricane as practicable Justice dictates that devastating effects of Hurricane Katrina majority has done intent that La R S 9 5824 be 4 are turns a blind eye liberally construed for to the the benefit and protection of the citizens of Louisiana and who to hardship to persons to courts and offices in the exercise of their Thus I were prevented by respectfully dissent 5 prevent injustice inequity and undue Hurricane Katrina from legal rights timely access

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