DAVID S. GORBATY, Judge.
In this appeal, plaintiff asserts that the trial court erred in granting defendants' exception of no cause of action. Because we conclude that Kuebel was incorrectly decided, we overrule Kuebel, reverse the trial court's judgment on the state's exception, and remand the matter to the trial court for further proceedings. We explain our decision below.
The plaintiff, Desi Fulmer, is an employee of the State of Louisiana, Department of Wildlife and Fisheries. On June 2, 2001, the plaintiff was injured while working as a member of the crew of a state owned vessel in navigation and assigned to patrol the waters near, around and adjacent the Head of Passes in the Parish of Plaquemines. The vessel was being operated by his co-employee, Gary Pierce, who allegedly was traveling at a high speed when a ship wave caused the vessel to go down a trough, throwing the plaintiff into the air and resulting in the plaintiff sustaining herniated discs and other serious injuries to his cervical spine.
In November of 2007, the State filed a Motion for Declinatory Exception For Lack of Subject Matter Jurisdiction and Preemptory Exception for No Cause of Action. The State averred that the plaintiff failed to state a claim over which the court had jurisdiction. The State asserted that the plaintiff's exclusive remedy against it was provided for by the Louisiana Workers' Compensation Act. Thus, it sought dismissal of all Jones Act claims and claims in admiralty asserted by the plaintiff. In response to the exception, the plaintiff filed an opposition memorandum asserting that the issue of whether a state employee could maintain a suit under the Jones Act and general maritime law had been addressed favorably to the employee in Higgins v. State of Louisiana, 627 So.2d 217 (La.App. 4 Cir.1993). Following a hearing on January 10, 2008, the trial court denied the State's exceptions. The State filed a writ application in this court, which was denied.
In May 2009, defendants re-urged their exception of no cause of action based upon this court's recent decision in Kuebel v. Dept. of Wildlife & Fisheries, 2008-1018 (La.App. 4 Cir. 4/15/09), 14 So.3d 20. Bound by our decision in Kuebel, the district judge concluded that Mr. Fulmer's exclusive remedy was pursuant to Louisiana Workers' Compensation Act, La. R.S. 23:1021 et seq., sustained the exception, and dismissed the suit. See La. C.C.P. art. 934. Plaintiff subsequently filed this appeal.
The peremptory exception at issue here, based solely on a question of law, must be reviewed de novo. Bibbins v. City of New Orleans, 02-1510, p. 3 (La. App. 4 Cir. 5/21/03), 848 So.2d 686, 690.
Plaintiff avers that the trial court erred in finding that a Louisiana state employee has no rights under the Jones Act or general maritime law to sue his employer, and that workers' compensation is the exclusive remedy.
Plaintiff contends that the United States Supreme Court's decisions in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999), and Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (collectively, "the Alden trilogy"), do not apply to workers' compensation cases involving seamen in Louisiana because of differences in the law and constitutions of Louisiana and the other states involved, and because those cases were filed in federal rather than state court. As such, plaintiff avers, Kuebel was wrongly decided. We agree.
Prior to Kuebel, the seminal case on this issue was Higgins, supra. In Higgins, this court held that an injured state employee could bring suit against the state of Louisiana under the Jones Act and general maritime law. The facts of the instant case are indistinguishable from the facts in Higgins. Higgins sued the state for negligence under the Jones Act and for unseaworthiness under the general maritime law. The state filed an exception of no cause of action and alternatively, a motion for summary judgment. The trial court granted the state's exception and dismissed
In Higgins, this court also noted that the issue of whether a state employee injured in the course and scope of his employment on a state owned vessel could maintain an action in admiralty against the State had been addressed by this court in Cosey v. Department of Transportation and Development, et al., unpub., 92-C-2619, (La.App. 4 Cir. 11/20/92) writ denied, 618 So.2d 407 (La.1993). In rejecting the state's argument that it was immune from suits in admiralty by virtue of its status as a department of the State, this court concluded that the State was confusing remedies under the law with the forum in which those remedies could be brought. Further, this court rejected the State's argument that its employee was restricted to workers' compensation benefits, noting that federal law provided him the remedies he was seeking and the State could not limit the remedies afforded the employee under the savings to suitors clause. Citing La. R.S. 23:1035.2, this court concluded that the Louisiana Workers' Compensation and the Jones Act remedies are mutually exclusive. Thus, it found this gave additional support to the employee's argument that he could bring a Jones Act claim against his employer in a state court. For these reasons, this court found no error in the trial court ruling denying the state's exception.
We here note that from the time of our decisions in Cosey and Higgins and the panel's decision in Kuebel, the Congress did not change the Jones Act and the Louisiana legislature did not amend the Louisiana Workers' Compensation Act to legislatively overrule our decisions in Cosey and Higgins.
In Kuebel, a biologist at the Department of Wildlife and Fisheries who traveled on vessels to various test sites injured her neck and back while gathering samples in a seine net. She filed suit, seeking damages under the Jones Act and general maritime law. The trial court sustained the Department of Wildlife and Fisheries' exceptions of no cause of action and lack of subject matter jurisdiction. Citing the Alden trilogy, this court affirmed. Specifically, this court noted:
Kuebel, 2008-1018, p. 12, 14 So.3d 20, 30.
The Kuebel court further held:
2008-1018, pp. 15-16, 14 So.3d 20, 31.
The court concluded:
Kuebel, 2008-1018, pp. 23-24, 14 So.3d 20, 37.
Kuebel cites several federal cases from other jurisdictions in support of its contention that the doctrine of sovereign immunity has been expanded to prohibit admiralty suits against the state. However, a review of those cases reveals that none is directly on point, and more importantly, none support deviating from our Cosey-Higgins precedent.
While it is true that Alden contains language that severely undercuts some of the earlier jurisprudence limiting the State's ability to curtail remedies provided for by federal law, the case was not an admiralty case. Rather, in Alden, state probation officers brought an action against their employer, the state of Maine, for violation of overtime provisions of the Fair Labor Standards Act (FLSA). Initially, the suit was brought in the federal district court. When that court dismissed the action, the employees filed an action in state court. The state court dismissed the action citing sovereign immunity, and the Maine Supreme Judicial Court affirmed. The United States Supreme Court granted certiorari and affirmed the judgment dismissing the employees' action, holding that Congress could not subject the state to suit in state court without its consent.
The Maine Revised Statutes state that "Except as otherwise expressly provided by statute, all government entities shall be immune from suit on any and all tort claims seeking recovery of damages." Me. Rev.Stat. Ann. Tit. 14, Sec. 8103 (2009). As there were no statutes or provisions of law that expressed that Maine was waiving its immunity from suits alleging violations of overtime provisions of the FLSA, the Court found that Maine had not consented to suit under the FLSA. Alden, supra.
The holdings in the other cases of the Alden trilogy are clearly based upon the concept that Florida, like Maine, had not waived its sovereign immunity and, therefore, on the facts was not subject to suit by private citizens under federal laws because of the Eleventh Amendment. See Seminole Tribe of Florida, 517 U.S. at 47 and 55, 116 S.Ct. 1114 (stating, "... the Indian Commerce Clause does not grant Congress that power, and therefore § 2710(d)(7) cannot grant jurisdiction over a state that does not consent to be sued.... Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit.") See also College Savings Bank, 527 U.S. at 691, 119 S.Ct. 2219 (concluding "the sovereign immunity of the State of Florida was neither validly abrogated by the Trademark Remedy Clarification Act, nor voluntarily waived by the State's activities in interstate commerce, we hold that the federal courts are without jurisdiction to entertain this suit against an arm of the State of Florida.")
Pursuant to this provision, it appears that our Legislature recognizes that employees may also be covered by federal laws providing remedies, and that in such cases workers' compensation benefits are not payable. In the unpublished decision rendered in Cosey, this court concluded that this language demonstrated that the remedies provided by the Louisiana Workers' Compensation Act and by the Jones Act were mutually exclusive remedies; thus, it was not the intent of the law to deprive the employee of his right to seek his federal remedy in state court.
We overrule Kuebel v. Department of Wildlife and Fisheries, 08-1018 (La.App. 4 Cir. 4/15/09), 14 So.3d 20, and follow our earlier precedent in Cosey and Higgins. Accordingly, we find that Mr. Fulmer states a cause of action under the Jones Act and general maritime law against his employer, the State of Louisiana.
We hereby reverse the judgment sustaining the exception of no cause of action, which dismissed the suit of Desi Fulmer against the State of Louisiana and Gary Pierce, and remand the matter to the trial court for further proceedings.
MURRAY, J., concurs with reasons.
ARMSTRONG, C.J., respectfully dissents.
KIRBY, J., dissents for the reasons assigned by J. BELSOME.
BELSOME, J., dissents with reasons.
MURRAY, J., concurs with reasons.
In Louisiana, the general rule, expressed in the Constitution, is that injured persons are permitted to sue the State seeking compensation for their injuries. The Louisiana Worker's Compensation Act
I do not believe that the U.S. Supreme Court's 1999 decision in Alden v. Maine mandates a different conclusion because Maine does not have a constitutional or legislative waiver of sovereign immunity in tort cases, as Louisiana does. I therefore concur in the majority's opinion overruling this court's decision in Kuebel v. Dept. of Wildlife and Fisheries, 2008-1018 (La. App. 4th Cir.4/15/09), 14 So.3d 20.
ARMSTRONG, C.J., respectfully dissents.
I would find that this Court is bound by the rulings of the United States Supreme Court in the Alden trilogy. The powers delegated to the United States Congress in Article I of the Constitution do not include the power to subject non-consenting States to private suits for damages in state courts. Louisiana has clearly limited its waiver of sovereign immunity with respect to its employees, and has declared that limitation in La. R.S. 23:1034(A). Therefore, I must respectfully dissent from the majority opinion's overruling this Court's recent decision in Kuebel v. Department of Wildlife and Fisheries, 08-1018 (La.App. 4 Cir. 4/15/09), 14 So.3d 20, writ denied, 09-1083 (La.9/4/09), 17 So.3d 964.
KIRBY, J., dissents for the reasons assigned by J. BELSOME.
BELSOME, J., dissents with reasons.
In handing down the Alden Trilogy,
The majority seeks to overrule this Court's decision in Kuebel v. Department of Wildlife and Fisheries, 2008-1018 (La. App. 4 Cir. 4/15/09), 14 So.3d 20, writ denied, 2009-1083 (La.9/4/09), 17 So.3d 964, by not only failing to examine La. Const. Art. XII in its entirety, but also by relying upon Higgins,
In an attempt to establish that Louisiana has consented to be sued in its own courts, the majority only includes a partial citation from the article upon which it primarily relies from the Louisiana Constitution. Specifically, the majority fails to mention or even acknowledge that La. Const. Art. XII, Section 10 also contains a subsection (B) and (C). Section 10(C) contains language that explicitly limits the broad language quoted by the majority in Section 10(A):
The majority's complete omission of La. Const. art. XII, Sec. 10(C) from its analysis is not unlike reviewing an insurance policy's coverage while completely ignoring the policy's exclusions. La. Const. art. XII, Sec. 10(A), read in a vacuum, simply cannot serve as a basis for concluding that Louisiana has consented to be sued in its own courts by a State employee on a federal cause of action.
Rather, pursuant to the mandates of La. Const. Art. XII, Section 10(C), the Louisiana Legislature has, in fact, explicitly "provide[d] for the extent of liability of
La. R.S. 23:1034(A) and (D) (emphasis added). Not only has the Legislature provided for the extent of the state's liability, but Louisiana has also "provide[d] a procedure for suits against the state [or] a state agency" through Louisiana Workers' Compensation courts and judges. The State of Louisiana is permitted to limit its liability,
With regard to Louisiana jurisprudence, the majority is correct in its observation that Higgins addressed a similar issue and held that an injured state employee could bring suit against the State under the Jones Act. However, Higgins held that the injured employee had no remedy available under the Louisiana Workers' Compensation Act. In this case, as was the case in Kuebel, the injured State employees will be compensated under the exclusive and obligatory mandates of workers' compensation. Most significantly, pursuant to U.S. Supreme Court jurisprudence, Higgins is simply no longer good law.
As explained in Kuebel, this Court in Higgins relied upon the now significantly narrowed Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991).
As recognized in Kuebel, the U.S. Supreme Court previously held in Seminole Tribe of Fla. v. Florida that a state cannot be sued in federal court on a federal statutory claim. Seminole Tribe, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
As this Court noted in Kuebel, courts have naturally considered the directives of Alden as a prohibition of suits against the state (in state court) for maritime and railroad personal injuries.
Turning to a post-Alden case with a fact pattern most analogous to the instant case is Glover v. State, Dep't. of Transp., Alaska Marine Highway Sys., 175 P.3d 1240 (Alaska 2008). In Glover, the Supreme Court of Alaska examined U.S. Supreme Court jurisprudence in light of Alden v. Maine and concluded that because Alaska did not consent to suit in state court under the Jones Act or general maritime law, the state employee's exclusive remedy was workers' compensation. Glover, 175 P.3d at 1255, 1260-63.
In considering whether Congress, pursuant to the Jones Act, abrogated the requirement that a state must consent to suit,
Welch, 483 U.S. at 475-76, 107 S.Ct. at 2947 (emphasis added).
Glover, 175 P.3d at 1262 (quoting Alden, 527 U.S. at 736-38, 119 S.Ct. 2240) (citations omitted)(emphasis added).
Furthermore, the Glover Court found that Hilton was not factually similar,
While it is true that the claim at issue in Alden implicated the Constitution of the State of Maine, not the Louisiana Constitution, this is a distinction without a difference. Alden held that a state may not be sued in its own courts without its consent on a federal cause of action. The Alden Court examined Maine's constitution and determined that Maine had not consented to suit under the FLSA. Likewise, a review of the language in the Louisiana constitution, cited supra, reveals that the State of Louisiana has limited its liability and has not expressed its consent to be sued in its own courts on a Jones Act claim. The difference in the language and structure of the two constitutions is of no moment, because the result is identical.
With regard to the language employed in various sections of the WCA, the appellant notes that La. R.S. 23:1035.2, entitled "Claims covered by certain federal laws," does not also include additional language such as "pertaining only to persons not employed by the State of Louisiana." Because such language is not present, the majority reasons that, notwithstanding U.S. Supreme Court jurisprudence to the contrary, Section 1035.2 stands for the proposition that "any employee" can sue their employer under the Jones Act in a
Furthermore, Louisiana state employees have their own specific section in La. R.S. 23:1034, cited supra. There was absolutely no need for the legislature to exempt State employees from Section 1035.2 when Section 1034 explicitly provides that the WCA is the exclusive remedy for State employees.
Interestingly, this Court found that a private employee who was eligible for compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA) was limited to recovery under same and was thus precluded from also recovering Supplemental Earnings Benefits under the Louisiana Workers' Compensation Act (WCA). Flowers v. Coastal Cargo Co., Inc., 2001-0656 (La.App. 4 Cir. 3/20/02), 815 So.2d 198, 200, writ denied, 2002-0923 (La.5/31/02), 817 So.2d 100.
In Flowers, Joseph Flowers injured his arm in the course and scope of his employment and filed a claim with the Office of Workers' Compensation (OWC) against his employer, Coastal Cargo Company, Inc. (Coastal). Summary judgment was filed by both parties regarding whether Mr. Flowers could bring a claim for Supplemental Earnings Benefits, a remedy not available under the LHWCA. The OWC held that Mr. Flowers' sole remedy was the LHWCA and not the WCA. Id. at 199.
On appeal, this Court considered whether the preclusion of wage earning capacity benefits under the WCA on the basis that Mr. Flowers had a remedy under the LHWCA was unconstitutional on its face or as applied to Mr. Flowers. Mr. Flowers argued that his loss of wage earning capacity did not have a remedy under the federal act; that pursuant to La. R.S. 23:1035.2, he was precluded from a remedy for that loss because he was entitled to benefits under the LHWCA; that his loss of wage earning capacity would "far exceed the amount of scheduled benefits"; and that because the two benefits are distinct, he should have been permitted to pursue a claim for those benefits not available to him under the LHWCA. Id.
Coastal maintained that the Louisiana Legislature has determined, "as a matter of public policy, that an injured worker whose claim falls within the jurisdiction of the LHWCA is precluded from asserting a claim under the State Act [WCA]." Id. Despite the disparity in the two remedies, and the lack of certain relief available to Mr. Flowers under the LHWCA, Coastal argued that Mr. Flowers was nonetheless not entirely without a remedy. Id.
Id. at 200 (emphasis added). Therefore, this Court held that Section 1035.2 was "constitutional on its face and as applied to Mr. Flowers, because the legislature has the authority to limit codal remedies as long as it does not leave the injured party entirely without [a] remedy." Id. Accordingly, this Court held that Mr. Flowers was not entitled to seek loss of wage earning capacity because "
Kuebel simply held that a state employee who also happened to be a seaman could not, pursuant to the mandates of Alden, sue the State of Louisiana, in state court, on a Jones Act claim. Unlike the circumstances in Higgins, the employee here is not entirely without a remedy, see Flowers, supra; the injured employee is afforded a remedy under the exclusive and obligatory provisions of the Louisiana Workers' Compensation Act. Although this result may be somewhat unsatisfactory to some,
College Savings Bank, 527 U.S. at 670, 119 S.Ct. 2219 (emphasis supplied).
One author described the Alden Trilogy holdings as follows:
Michael Wells, Suing States for Money: Constitutional Remedies After Alden and Florida Prepaid, 31 Rutgers L.J. 771 (2000)(footnotes and citations omitted).
Kuebel, supra, at n. 5 (emphasis added).
Kuebel, 2008-1018, p. 6, 14 So.3d at 24 (emphasis added).
Marshall, supra, 31 Rutgers L.J. at 810 (quoting Alden, 119 S.Ct. at 2264)(emphasis added).
Additionally, perhaps "the most valid understanding of the interpretive process deployed in Alden is that a majority of the Court preferred state autonomy, fiscal predictability, and political accountability, and disapproved of individuals' ability to influence the course of government through litigation." Roger C. Hartley, supra, at 350.
Hartley, supra, at 324-326 (citations omitted).
Alden, 527 U.S. at 750, 119 S.Ct. at 2264.
As noted in Kuebel, Alden has also been recognized as evidence of the Court's desire to protect the states from excessive litigation:
Kuebel, supra (quoting Ann Althouse, The Alden Trilogy: Still Searching for a Way to Enforce Federalism, 31 Rutgers L.J. 631, 653 (2000)).
Glover, 175 P.3d at 1254 (emphasis added)(footnotes and citations omitted).
Flowers, 815 So.2d at 200.
David W. Robertson and Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 29 Tul. Mar. L.J. 369, 378-379 (2005)(emphasis added).
Yet another Louisiana author noted that "the [U.S. Supreme] Court's respect for state sovereign immunity is long-held, having disallowed attempts by Congress to use its Article I powers to enact legislation intruding upon state sovereignty." Meredith S. Byars, The Supreme Court's Section 5 Analysis in Tennessee v. Lane: Considering the Future of State Sovereignty, Public Policy, and the Treatment Needs of Mentally Ill Prisoners, 80 Tul. L.Rev. 947, n. 2 (citing Alden v. Maine; iIdaho v. Coeur d'Alene Tribe, 521 U.S. 261, 267-69, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997); Seminole Tribe v. Florida; United States v. Lopez, 514 U.S. 549, 553-57, 567-68, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); New York v. United States, 505 U.S. 144, 149-57, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); and Hans v. Louisiana, 134 U.S. 1, 9-21, 10 S.Ct. 504, 33 L.Ed. 842 (1890)).
[T]he Louisiana Constitution of 1974 provided for a specific waiver of sovereign immunity in article XII, section 10(A). Although unartfully drafted, the intended purpose of the provision was to provide that the State's sovereign immunity was waived in any suit for contract or tort. Since the enactment of the constitutional provision, there has been a plethora of case law and statutory provisions relating to immunity. Title 9, chapter 1 of the Civil Code ancillaries contains a host of statutes providing immunity for public bodies, as well as many other immunities for other interests.
In 1985, the Louisiana Legislature enacted its first version of its discretionary function exception. A number of commentators raised serious questions about the constitutionality of the Louisiana discretionary function statute as being contrary to article XII, section 10(A) of the Louisiana Constitution of 1974. Several cases added judicial heft to this position. Segura v. Louisiana Architects Selection Board held that the pre-1974 statute exempting the State from payment of court costs was superseded by the constitutional waiver of sovereign immunity in 1974. Also, in Jones v. City of Baton Rouge, the court held that the imposition of Louisiana Civil Code article 2317 imposing strict liability upon municipalities was consistent with the constitutional waiver of sovereign immunity. Louisiana Supreme Court cases like Sibley v. Board of Supervisors of Louisiana State University (on rehearing) kept the constitutional argument as to the statute alive and well. Finally, in Chamberlain v. State Through Department of Transportation & Development, the Supreme Court found that the legislature's power to enact laws that abrogated some of the effects of abolition of state sovereign immunity is subject to constitutional challenge. In that case, the court found a cap on damage awards against governmental agencies unconstitutional.
After the Chamberlain decision, the legislature went into high gear and proposed a constitutional amendment that passed in 1995. This provision adds subsection C to article XII, section 10, and provides:
Subsequently, a curious plurality opinion of the Louisiana Supreme Court in Gregor v. Argenot Great Century Insurance Co. construed the discretionary function exception to extend immunity to the State and its political subdivisions beyond the immunity contained in the FTCA. In what is apparently dicta, the court overruled Fowler v. Roberts. In Fowler, the court held that discretion exists only when a policy judgment has been made and that the exception protected the government from liability only if the policy making was on a ministerial level, but not at the operational level. The Gregor plurality stated that the Louisiana discretionary exception statute did not make a distinction between operational acts and ministerial or policy-making acts. This holding substantially eviscerates what was accomplished by the Louisiana Constitutional Convention of 1974 and approved by the voting public.
Thus, with Gregor and the passage of the 1995 constitutional amendment, the efforts of the delegates to the Louisiana Constitutional Convention of 1974 have been significantly diluted.
Stanwood R. Duval, Sovereign Immunity, Anachronistic or Inherent: A Sword or A Shield? 84 Tul. L.Rev. 1471, 1480-1482 (2010)(emphasis added) (citations and footnotes omitted).
