Misrepresentations Lead to Dismissal of Suit

In Million v. Exxon Mobil, et al., plaintiff was diagnosed with cancer and pulmonary embolisms in 2016. Plaintiff had worked in the chemical industry for 40 years. In his suit, filed in the United States Middle District Court, plaintiff alleged that long-term exposure to toxic chemicals during his employment caused his cancer. While the suit alleged that Million’s former employers created an unsafe work environment, he admitted in deposition that he was provided both safety equipment and safety training during his employment.

Andrew Blanchfield, managing partner at Keogh Cox, represented one of the former employers and filed a motion for summary judgment seeking to enforce the protections of Louisiana worker’s compensation law. Under the law, worker’s compensation benefits are generally an employee’s exclusive remedy against an employer for work-related injuries or illnesses. An employer is therefore entitled to immunity from tort claims unless the employee can prove that employer committed an “intentional act.”

To prevail under an intentional act theory, a plaintiff is required to show that the employer’s act was “intentional” and “substantially certain” to result in injury to the plaintiff. In support of the motion to enforce immunity, the former employers cited to plaintiff’s admissions in deposition as to the efforts made for his safety and to the absence of evidence sufficient to show intentional conduct substantially certain to cause injury. The district court granted the motion and dismissed plaintiff’s claims. This month, the dismissal was upheld by the United States Fifth Circuit Court of Appeal in Million v. Exxon Mobil Corp., Exxon Chem. Co./ Exxon Ref., No. 20-30002, 2020 WL 7054051 (5th Cir. Dec. 1, 2020).

This case illustrates the interplay between general Louisiana tort law and the Louisiana worker’s compensation law and shows that courts will require substantive evidence of an intentional act to maintain a tort suit against an otherwise immune employer.

Chelsea Payne is an associate at Keogh Cox and has been practicing for three years. Her practice mainly relates to construction law and complex litigation. Chelsea enjoys playing tennis and spending time with her family.

The Louisiana Supreme Court recently held that the workers' compensation tort immunity provided by LSA-R.S. 23:1032 does not apply to suits by one volunteer fireman against another volunteer. See Champagne v. American Alternative Insurance Corp., 12-1697 (La. 3/19/13), -- So.3d ---. LSA-R.S. 23:1036 provides that workers' compensation is the sole and exclusive remedy provided to a volunteer fireman against a fire company. Champagne clarified that this immunity does not similarly apply to claims for personal injury brought by one volunteer fireman against another.

The last sentence of LSA- R.S. 23:1036(A) states as follows:

The remedies provided herein shall constitute the exclusive remedy of the volunteer member against the fire company as provided in R.S. 23:1032.

In Champagne, the attorney for the defendants argued that the legislature's incorporation of LSA-R.S. 23:1032 reflected the intent to extend immunity beyond the language provided by LSA-R.S. 23:1036(A). The defendants asserted that this last sentence has internal inconsistencies; the first portion of the sentence "standing in isolation, can be read to limit workers' compensation immunity solely to the fire company, whereas its last phrase specifically incorporates La. R.S. 23:1032, which applies workers' compensation tort immunity to officers and employees of the employer or principal." Defendants further argued that, "to not include co-volunteers as co-employees under La. R.S. 23:1032 is to render the phrase, 'as provided in La. R.S. 23:1032,' superfluous and meaningless."

The Supreme Court disagreed with the defendants' statutory interpretation arguments. The Court stated: "[t]he fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the legislature to enact the law." In assessing the legislative intent, the Court gave a "narrow construction" of the statute because the statute sought to provide immunity in derogation of "the delictual rights of injured workers existing in the Louisiana Civil Code." Under this narrow construction, "every presumption should be on the side of preserving the general tort or delictual rights of an injured worker..."

Utilizing a narrow (or "strict") construction of LSA-R.S. 23:1036, the Court found that the legislature did not expressly provide immunity to volunteer firemen. Further, the Court did not find intent to provide such immunity in the legislative history.

Champagne is not the first time a Louisiana court has commented on the application of Louisiana's Workers' Compensation Law to volunteer firemen. In 1994, the First Circuit held that a volunteer fireman was not an "employee" of the fire district and therefore was not eligible for workers' compensation benefits. See Genusa v. Pointe Coupee Volunteer Fire Dist. No. 4, 93-2214 (La. App. 1 Cir. 10/7/94); 644 So.2d 851. The Genusa Court reasoned that workers' compensation did not apply when there was no employer-employee relationship, and that an employer-employee relationship does not exist without compensation.

The Champagne Court expressed its belief that LSA-R.S. 23:1036 was likely enacted in response to Genusa. However, the statute only granted volunteer members of fire companies "some workers' compensation benefits" and did not change "the law to define a volunteer member... as an 'employee' of the fire company for the purposes of immunity under the workers' compensation law." Emphasis added.

Both the Supreme Court and the appellate court in Champagne observed that a denial of immunity to volunteer firemen "may make members of the community reluctant to act as volunteers at their local department." However, the legislature did not clearly provide for such immunity according to Champagne. It would not be surprising to see the Louisiana legislature address the issue of immunity for volunteer firemen moving forward.

In Ralser v. Harrah’s New Orleans, the claimant tripped over the extended arm of a forklift while walking toward the employee entrance for the defendant’s casino. A third-party construction contractor had parked the forklift adjacent to the employee entrance while doing work on the premises. Surveillance footage showed that no warning signs, barricades, or other safety devices had been placed around the forklift. Evidence also showed that another employee tripped over the same forklift on the same day.

Generally, an employee's injuries sustained while traveling to or from a place of employment are not compensable under the Workers’ Compensation Law. This is known as the “going-and-coming rule.” However, at trial, the workers’ compensation judge applied the Threshold Doctrine, an exception to this general rule, and found the accident occurred in the course and scope of the claimant’s employment. Under Louisiana law, the Threshold Doctrine applies when:

1. A distinctive or unusual travel risk exists; and
2. The risk is immediately  adjacent to the employer’s premises.

On appeal, the employer argued that the trial judge was manifestly erroneous in applying the Threshold Doctrine. However, in affirming the trial court’s determination, the appellate court emphasized several factual findings that supported application of the doctrine:

• The forklift created a  distinctive travel hazard.
• The hazard was  immediately adjacent to the employee entrance.
• Employees regularly traversed the route where the forklift was located.
• The risk arose from construction activities associated with Harrah’s premises.
• No warnings, barricades,  or protective measures were in place to protect employees from the hazard.

Under the facts of this case, the court found the Threshold Doctrine applied. Even though the employer did not own the forklift, evidence showed the forklift was within the defendant-employer’s control and presented a distinct travel risk immediately adjacent to the casino.  

While it may be limited to its facts, this decision is significant because it appears to extend application of the Threshold Doctrine and suggest employers may be held responsible for dangers created by conditions near workplace access points, even when those conditions arise from the activities of third parties. Because Ralser presented very unique circumstances, it remains to be seen whether the decision will impact the well-established Threshold Doctrine beyond its facts.

References:

 Ralser v. Harrah’s New Orleans, ___ So. 3d ___, 2026WL 1090787 (La. App. 4 Cir. 4/22/26).

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