Court Affirms Generalized Knowledge of Risk Should Not Trigger Intentional Act Exception to Workers’ Compensation Law

In a previous blog, we outlined developing law in the Louisiana appeals courts, and federal district courts in Louisiana on the issue of whether a claimant may maintain a separate cause of action against an employer for independent negligence when it is stipulated that the employee was in the course and scope of employment.¹ Most courts held a claimant could not maintain a separate action against the employer under these circumstances, reasoning that the employee’s fault would impute to the employer, and therefore, additional inquiry was not appropriate. However, the Louisiana Supreme Court recently addressed the issue and stated:

“(A) plaintiff may pursue both a negligence cause of action against an employee for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, when the employer stipulates that the employee was in the course and scope of employment at the time of the injury.” (Emphasis added) See Martin v. Thomas et al., 21-1490 (La. 12/21/21), 328 So. 3d 1164.

This holding notably overturned the 1^st Circuit Court of Appeal ruling in Elee v. White, - - So.3d - - (La. App. 1 Cir 7/24/20), 2020 WL 4251974 and other Louisiana 5^th Circuit Court of Appeals decisions. The Supreme Court in Martin reasoned that “the initial assessment of fault required by the law is not bypassed due to the employer-employee relationship” and “shielding a potential tortfeasor from liability is not compatible with a comparative negligence regime.” The Court further stated that the possibility that both the employee and employer may be at fault is not “subsumed” by the employer’s admission on course and scope. In fact, if the fault of the employee is shown, then the issue of whether there is also fault on the part of the employer remains and must be decided by the evidence on a case-by-case basis.

The consequences of this decision remain to be seen, but it is expected that claimants may also pursue employers separately on theories such as negligent hiring, supervision, and entrustment. The scope of such discovery will remain within the sound discretion of the trial judge.

By: John P. Wolff, III and Richard W. Wolff

¹Louisiana Appeal Courts Prohibit Direct Negligence Claims Against Employer; US District Court Uses Rule to Limit Discovery - Keogh Cox

In Saizon v. Dow Chem. Co., the plaintiff was injured while he was working for Turner Industrial Group at the Dow Chemical Plant in Plaquemine, Louisiana. The plaintiff named Dow and three of its employees as defendants. The Dow defendants moved for summary judgment on grounds that the plaintiff was Dow’s statutory employee at the time of the accident and therefore the Louisiana Workers’ Compensation Law (“LWCL”) provided plaintiff with his exclusive remedy for the claims he asserted against Dow and its employees.

The trial court agreed and granted summary judgment in favor of the defendants. The First Circuit affirmed summary judgment on appeal.

The Court found the contract executed between Dow and Turner Industries created a rebuttable presumption under La. R.S. 23:1061(A)(3) that Dow was the plaintiff’s statutory employer at the time of the accident. The plaintiff failed to produce evidence to rebut this presumption. Accordingly, the defendants argued plaintiff’s exclusive remedy was found in workers’ compensation, not in tort.

The LWCL generally holds that an employer is immune from tort actions brought against it by its employee. However, the LWCL includes an “intentional act exception,” where an employee can maintain a tort claim if he can show that his accident and injuries resulted from his employer’s intentional act. A plaintiff can establish the intentional act exception if he can show the employer “knows that the result is substantially certain to follow from his conduct.”

The plaintiff argued that the defendants were aware of the risk that a fire or explosion could occur before the accident. He also argued the defendants failed to follow Dow’s safety policies and OSHA guidelines at the time of the accident. Plaintiff argued this created an issue of fact regarding whether the accident was “substantially certain.”

The First Circuit disagreed, finding this evidence amounted to only “generalized knowledge of risk” that “falls short of the kind of actual intention to injure that robs the injury of accidental character.” In short, the court agreed with the defendants’ position that “an employer’s generalized knowledge of risk does not meet the intentional act test without proof of specific knowledge of risk to this plaintiff and moving ahead with operations anyway.” Plaintiff had no such evidence, and his claims were dismissed.

Reference:

Saizon v. Dow Chem. Co., 2025-1139 (La. App. 1 Cir. 4/24/26), 2026 WL 1122621

When an employee is injured on the job and the employee’s request for workers’ compensation benefits is disputed, La. R.S. 23:1201.1 allows an employer to request a preliminary determination hearing (“PDH”) with the Office of Workers’ Compensation (“OWC”). If the workers’ compensation judge rules at the PDH that benefits are owed, the employer has ten days to comply with the judge’s ruling. The First Circuit recently ruled that an employer can find “safe harbor” if it technically complies with the rigorous deadlines of the statute, which if missed can have profound consequences, subjecting the employer to penalties and attorney fees.

In Kilbourne v. Dixon Correctional Institute, the court recently affirmed a ruling that found an employer complied with La. R.S. 23:1201.1 and could not be subject to penalties or attorney’s fees when it mailed the disputed workers compensation benefits within ten days of the judge’s ruling at the PDH. The ruling was affirmed even though the employee did not receive payment within ten days of the hearing.

The employer in Kilbourne stopped issuing weekly workers compensation benefits after two doctors found the claimant’s ongoing complaints were unrelated to the work accident and the claimant could return to full duty work. The employee then filed a disputed claim with the OWC and requested reinstatement of his benefits. He also requested an award of penalties and attorney’s fees because he claimed the employer’s suspension of indemnity benefits was arbitrary and capricious. The employer requested a PDH to address these issues.

The OWC judge issued a preliminary determination that although the employee was owed supplemental benefits from the date his payments of benefits stopped, the employer was not arbitrary and capricious in its decision to stop payment. Within ten days of the mailing of the PDH ruling, the employer issued and mailed benefit checks to the employee and filed a form with the OWC to provide notice the employer was paying the benefits. Nevertheless, the employee disagreed with the PDH ruling and the matter went to trial.

At trial, the employee argued that he should have received penalties, attorney fees, and interest on the back benefits paid after the PDH ruling. The employee argued the employer failed to comply with section 1201.1 because he did not receive the indemnity benefits until more than ten days after the PDH ruling. However, evidence showed the benefit payments were postmarked and mailed within ten days of the receipt of PDH ruling.

Accordingly, the trial court found that the employer was immune from an award of penalties and attorney fees pursuant to the “safe harbor” provision of section 1201.1. Interest also could not be owed on back pay when the employer complied with the statute. The First Circuit affirmed this decision on appeal. Although providing the claimant funds within 10 days of the PDH ruling remains the best practice for an employer, this ruling informs employers that they should find safe harbor from what could be significant penalties and attorney’s fees if they meet the technical requirements of the statute and mail their compliance with the judge’s ruling within ten days of the PDH.

Case Reference: Kilbourne v. Dixon Correctional Institute, 2022-0455,(La. App. 1 Cir. 11/4/22) ____So. 3d ___,2022 WL 16706951.