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Volunteer Firemen "On the Hook" in Louisiana

Published on: March 26, 2013

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.

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Louisiana Supreme Court issued a significant ruling in a class action case involving tax credits for solar panels

Recently, the Louisiana Supreme Court issued a significant ruling in a class action case handled by Keogh Cox partners Chris Jones and Nancy Gilbert. The case involved tax credits for solar panels. The Court’s ruling overturned a lower court decision that held an Act of the Legislature unconstitutional. After the plaintiffs’ Application for Rehearing was denied, the Court’s decision is now final.

In Ulrich, et al. v. Kimberly Robinson, Secretary of the Louisiana Department of Revenue, 2018-0534 (La. 3/26/19), 2019 WL 1395316, the class action plaintiffs were persons who purchased and installed residential solar panel systems in their homes. When they claimed the solar electric system tax credits on their 2015 state tax returns pursuant to La. R.S. 47:6030, the tax credits were denied by the Louisiana Department of Revenue, based on Act 131 of the 2015 legislative session. Act 131 capped the maximum amount of solar panel tax credits to be granted by the Department of Revenue, and the plaintiffs’ claims were made after the cap was exhausted.

When their claims for the tax credits were denied, plaintiffs filed a declaratory judgment action seeking to declare Act 131 unconstitutional. During the pendency of the suit in the district court, the Louisiana Legislature enacted Act 413 which provided additional funding for solar tax credits. Under Act 131, all taxpayers whose solar panel tax credit claims were previously denied would receive the entirety of their tax credits over installments. The district court declared Act 131 unconstitutional and concluded that Act 413 did not moot the controversy.

Because the district court declared Act 131 unconstitutional, the Department directly appealed the decision to the Louisiana Supreme Court. Oral arguments occurred in October of 2018. In the Court’s recent opinion, it concluded that Act 413 mooted the controversy. According to the Court, the plaintiffs no longer maintained a “justiciable controversy” because Act 413 provided for the payment of the entirety of the previously denied tax credits. Accordingly, the Court overruled the district court’s judgment that declared Act 131 unconstitutional. Plaintiffs filed an Application for Rehearing and that request was recently denied, making this decision final.

Chris Jones is a partner with Keogh Cox in Baton Rouge, LA. He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country. He is a life-long resident of Baton Rouge, where he lives with his wife and four children.

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Louisiana Supreme Court Addresses Mental Anguish Awards When No Other Injury Is Claimed

As a general rule of Louisiana law, a plaintiff cannot recover general damages for mental disturbance or distress unless the defendant’s act also causes physical injury, illness, or some other physical consequence. However, in Spencer v. Valero Refining Meraux, LLC, the Louisiana Supreme Court recently reexamined the circumstances under which a limited exception to this general rule may apply.

The Spencer case involved an explosion and fire that occurred shortly after midnight at the Valero refinery in Meraux, Louisiana. The plaintiffs claimed Valero should be liable for negligent infliction of emotional distress. Specifically, the plaintiffs alleged they heard loud sounds, experienced anxiety, and had difficulty sleeping after the event. None of the plaintiffs received any medical treatment or experienced physical injury/symptoms. The defendant argued that the plaintiffs could not recover damages under these circumstances.

The court held that recovery for negligent infliction of emotional distress is not precluded under Louisiana law. However, the court also cautioned that not every act that causes some harm also yields liability and compensatory damages. It held that Louisiana courts must also consider the goal set forth under Louisiana law to prevent “spurious” or false claims when examining these types of actions.

In review of the plaintiffs’ claims, the court cited Moresi v. State Through Dept. of Wildlife & Fisheries, to show that the plaintiffs were required to establish “the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” The Spencer court held evidence of generalized fear or evidence of mere inconvenience is not enough to show that a plaintiff’s distress is “serious.” The court added that this rule must be “stringently applied,” because these types of cases, though fact intensive, are inherently speculative in nature.

In review of the facts presented in Spencer, the court found that Valero owed a duty to the plaintiffs and breached the “duty it owed, which was a cause-in-fact of plaintiffs’ generalized fear and anxiety.” However, the plaintiffs failed to produce evidence to show that their complaints, which included anxiety and difficulty sleeping, were sufficiently “serious” to support an award for negligent infliction of emotional distress, and their claims were dismissed. Although the result in Spencer may be limited to its facts, the Court’s decision appears to align with the general rule that a plaintiff usually cannot recover general damages for emotional distress in Louisiana absent an accompanying injury.

References:

Spencer v. Valero Refining Meraux, LLC, 2022-00469 (La. 1/27/23), 356 So. 3d 936.

Moresi v. State Through Dept. of Wildlife & Fisheries, 567 So.2d 1801 (La 1990).

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Sudden Shifts - Burden Shifting under Louisiana Law

Winning or losing in court often comes down to who possesses the burden of proof. Like a driver at a four-way stop, a litigant has to know when it is their turn.

Civil Procedure Article 966, the "Summary Judgment Article," provides that the mover bears the burden of proof. The Louisiana Supreme Court recently addressed this burden in Dan Veuleman & Jody Veuleman v. Mustang Homes, LLC, 2013-C-190 (La. 4/5/13), - So. 3d - in the context of insurance coverage.

The general rule in Louisiana is that an insurer bears the burden of proving that a loss falls within a policy exclusion. In Veuleman, the insurer argued that the loss was excluded through a "work product" exclusion. However, the "work product" exclusion contained a "subcontractor" exception. The plaintiffs argued that the work was performed by a subcontractor and should for that reason be covered under the policy.

At the hearing, the insurer introduced its policy as evidence of the exclusion. However, it offered no evidence to show who performed the work at issue. The plaintiffs attempted to introduce an affidavit to establish that the work was performed by a subcontractor. The court of appeal rejected the affidavit as insufficient and concluded that the plaintiffs did not establish that their claims were spared from the work product exclusion.

The Louisiana Supreme Court disagreed. It stressed that the insurer, not the plaintiff, possessed the burden of proving that the policy exclusion applied. The Court stated that "[t]he insurer offered no proof to accomplish its burden." Id. at 1.　

The Veuleman Court held that the appellate court "erroneously shifted the burden of proof on the motion for summary judgment" to the plaintiffs and that the insurer had the burden to show that "the exception [to the exclusion] is not met." In keeping, the Court vacated the summary judgment and remanded the matter for further proceedings.

The Veuleman decision reminds that a litigant should be aware when it is their turn to go.