author: J^EZELL, JUDGE.

text:
    Darrell RANEL v. McDONALD’S.
    No. WCA 03-484.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      Robert Dean Hoover, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee McDonald’s.
    Danny Wayne Sylvester Jr. (Beau), Tan-nehill & Sylvester, Pineville, LA, for Plaintiff/Appellant Darrell Ranel.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   J^EZELL, JUDGE.

Darrell Ranel appeals a workers’ compensation judgment holding that he was not entitled to supplemental earnings benefits (SEB). The trial court also refused to award penalties and attorney’s fees for the employer’s failure to approve medical treatment recommended by his treating physician. Additionally, Ranel claims he is entitled to penalties and attorney’s fees for the untimely and unreasonable delay in paying indemnity benefits. Ranel also disagrees with the trial court’s decision regarding the computation of offsets and credits due the employer from his other part-time jobs.

FACTS

Ranel went to work for McDonald’s in Alexandria on May 22, 2000, as a second assistant manager. On July 5, 2001, Ranel was injured in the course and scope of his employment with McDonald’s. He was in the process of placing a cap on a bottle of soap when he slipped, his feet came from under him, and he fell on his buttocks. He tried to get up and slipped again, banging his knee against the steel mop rail. At first he thought he was going to be ok, but later he started having pain.

Ranel initially saw his family doctor, Dr. Gregory Bevels, on July 9. Subsequently, McDonald’s sent him to Rapides Industrial Medicine, where he was seen by Dr. Robert Smith on July 17, 2001. X-rays revealed minimal scoliosis with minimal L5/S1 disc space narrowing. He was placed on anti-inflammatory medication, and an MRI was ordered. During this time, Ranel continued working at McDonald’s, but with restrictions.

Ranel’s MRI indicated degenerative changes at L5/S1 with a mild, mainly central, bulging disc with no significant compromise. Minimal indentation in the anterior thecal sac area was also observed. Dr. Smith noted that these findings were Inconsistent with Ranel’s presentation. Dr. Smith continued treating Ranel and kept his status as working with restrictions. Dr. Smith referred Ranel to a neurosurgeon, Dr. Lawrence Drerup.

Dr. Drerup saw Ranel on October 23, 2001. At that time, Dr. Drerup planned to treat Ranel with an epidural steroid injection with a root block at SI and epidural steroid injections.

Dr. Smith saw Ranel on November 12, 2001, maintaining Ranel’s modified work status. Dr. Smith noted that he would see Ranel again following his discharge from neurosurgery.

On November 29, 2001, Dr. Drerup placed Ranel on a no-work status. Then, effective December 18, 2001, Dr. Drerup released Ranel back to light duty. However, Dr. Drerup again placed Ranel on a no-work status from January 15, 2002 to March 1, 2002.

Ranel last saw Dr. Drerup on May 2, 2002, having undergone a lumbar myelo-gram and post myelographic CT, which appeared normal. Dr. Drerup reported that Ranel did not require further neuro-surgical intervention or evaluation, so he referred Ranel to Dr. Smith to continue under his care.

Dr. Smith saw Ranel on May 10, 2002. At that time he reported that he had nothing to offer Ranel except to get some opinions from other people who could help him manage long-term. Dr. Smith made three referrals: (1) to physical medicine and rehabilitation for an impairment rating, (2) to Dr. Stephen Katz for long-term, chronic pain management, and (3) to Dr. James Quillan for an MMPI (Minnesota Multiphasie Personality Inventory) and psychological assessment. Also, at this time, Dr. Smith recommended modified work duties. On July 9, 2002, Dr. Smith was provided with a job assessment of swing manager but did not find this position medically | .¡appropriate. Ranel last saw Dr. Smith on July 16, 2002, at which time Dr. Smith continued Ranel on a modified work status.

McDonald’s wanted a second opinion before it would approve the recommended referrals of Dr. Smith. Dr. Robert Rush evaluated Ranel on July 12, 2002. Dr. Rush opined that Ranel suffers with L4-L5 degenerative disc with bulge, chronic pain syndrome, and facet changes at L5-Sl. He did not find Ranel a candidate for surgical intervention, but recommended a good work hardening program with epidural steroid injections. Dr. Rush also opined that Ranel is unable to work at the time pending the medical treatment recommendations suggested by Dr. Rush.

Ranel stopped working for McDonald’s in January 2002, when Dr. Drerup restricted him from working. He has not returned to work with McDonald’s since that time. However, while working for McDonald’s, Ranel had other employment which he has continued with even after his injury. He is the pastor at St. James A.M.E. Church in Mansfield, where he earns $800 a month. Ranel is also the gospel program director at KAYT radio where he is paid $6.50 for one hour of work a day, five days a week, plus fifteen percent commission on any advertisements he sells. Ranel received temporary total disability benefits (TTD) from the end of January 2002 to the end of April 2002. On May 1, 2002, Ranel’s benefits were converted to SEB, and payment for the month of May was made on July 31, 2002. He also received a check on July 31, 2002, for the month of June SEB. He received a final payment of SEB on August 22, 2002, for the month of July. No further benefits have been paid.

14RaneI filed this workers’ compensation claim on May 8, 2002, after TTD ceased and before SEB started. Trial on the matter was on November 20, 2002. The workers’ compensation judge (WCJ) found that no SEB were due and denied Ranel’s other claims. Ranel appealed that judgment.

SUPPLEMENTAL EARNINGS BENEFITS

Ranel claims that the WCJ exceeded his powers by ruling on Ranel’s entitlement to SEB when the issue of entitlement to benefits was not in dispute by the parties at the trial of this matter. Ranel argues that the pleadings, pre-trial statements, and pre-trial conferences never put his entitlement to benefits at issue. In defense, McDonald’s refers to Attachment A attached to its answer which it argues raised the issue of entitlement to benefits. Ranel claims that this exhibit is not part of the record and cannot be relied upon.

McDonald’s answer clearly refers to Attachment A. A review of the entire record reveals that Attachment A is located later in the record attached to the answer. Furthermore, at the time Ranel filed his disputed claim, he was no longer receiving any benefits, so one can assume that when the disputed claim for termination of benefits was filed and he checked the box on the claim form for items under dispute “Wage benefits terminated or reduced on,” that the entitlement to benefits was disputed. Therefore, we find it proper to consider this as part of McDonald’s answer which squarely puts Ranel’s entitlement to SEB at issue.

Ranel claims the WCJ erred in finding that he was not entitled to SEB. Ranel claims that McDonald’s failure to timely approve the recommended referrals of Dr. Smith denied him the opportunity to present evidence to support his entitlement to benefits. McDonald’s alleges that Dr. Smith released Ranel to return to light-duty work and it offered him employment. It also argues that Ranel refused to participate (5in vocational rehabilitation in late May and early June, 2002.

“The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” An employee is entitled to receive supplemental earnings benefits (SEBs) if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La.Rev. state.ann. § 23:1221(3)(a) (West Supp. 1997). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. “Th[is] analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage.”
Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La.rev.state.ann. § 23:1221(3)(c)(D (West Supp.1997). Actual job placement is not required. The amount of SEBs is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. La.Rev.State.Ann. § 2S:1221(3)(c)(a)(West Supp.1997)
.... we conclude that an employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region.
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in the job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the | ^employer or potential employer is willing to provide any additional necessary training or education.

Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, pp. 8-11 (La.7/1/97), 696 So.2d 551, 556-57(quoting Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55(La.l993); Freeman v. Poulan/Weed Eater, 93-1530, p. 7 (La.1/14/94), 630 So.2d 733, 739; Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989)) (case citations omitted)(alteration in original).

Dr. Drerup had placed Ranel on a no-work status from January 15, 2002 to March 1, 2002. There is no indication of Ranel’s work status after March 1 until May 10, 2002, when Dr. Smith placed Ra-nel on light-duty.

Blake Stevens, a vocational rehabilitation counselor with McNabb Rehabilitation Sendees, testified about the efforts to return Ranel to work. He met with several doctors for vocational/medical consultations including Dr. Smith, Dr. Robert Rush, who performed a one-time evaluation, Dr. Rayland Beurlot, who performed an EMG and nerve conduction studies, and Dr. Jack Hurst, who preformed a one-time neurosurgical second medical opinion.

Blake’s consultations revealed the following. In November 2001, Dr. Beurlot opined that Ranel was capable of returning to work but referred him back to Dr. Smith. Dr. Hurst saw Ranel in April 2002 and approved Ranel to return to work at his pre-injury position of swing manager. In July 2002, Dr. Smith made his recommendations for referrals for medical treatment but found that the position of swing manager was not appropriate for Ranel. Dr. Rush agreed with Dr. Smith’s recommendations for medical treatment and opined that Ranel was unable to return to work pending medical treatment.

[ 7Blake testified that he and Glenda Stock, owner/operator of McDonald’s, tried to meet with Ranel about modified work, but Ranel would not come indicating he was still in continuous pain and under his doctor’s care. Stock explained that she heard Ranel was not at the meeting because his attorney had not been notified about the meeting.

Stock testified that she encouraged Ra-nel to keep in touch with her on his status. She stated that she never told Ranel he could not come back to work and he has not contacted her about coming back to work.

We agree with the WCJ that the evidence is clear that Ranel could return to work at a light-duty position, relying on Dr. Smith’s notes as the WCJ did. However, the evidence is clear and undisputed that the position that was available to Ra-nel, swing manager, was not appropriate. Only one doctor, Dr. Hurst, who saw Ranel one time, approved this position. Dr. Smith specifically disapproved the position, and Dr. Rush agreed with Dr. Smith’s recommendations. Even Dr. Beurlot, who reported that Ranel could work, but did not comment on the position of swing manager, referred Ranel back to Dr. Smith’s care.

Furthermore, there is no evidence that any particular job or formal offer was ever made to Ranel. Stock indicated that she was waiting for Ranel to approach her about coming back to work. It is the employer’s responsibility to offer an actual position within the employee’s capabilities to the employee, indicating a specific wage. We find that McDonald’s failed to sustain its burden of proving the existence of an actual position within Ranel’s physical capabilities. The WCJ erred in failing to award SEB.

| «WAGE BENEFIT COMPUTATION

Ranel claims the WCJ erred in determining that the correct method for computing his wage benefits was to use all wages from all sources of employment and allow a credit or offset for increased earnings after the date of injury. At the time of Ranel’s accident, he was working three jobs: his full-time job with McDonald’s earning $1,600 a month, a part-time job at KAYT Radio earning $350 a month plus commission on advertising sales, and a part-time job as pastor at St. James A.M.E. Church in Mansfield earning $800 a month. It is the income from all three of these jobs that the WCJ thought should be utilized in calculating Ranel’s wage benefits.

The WCJ never made any award of benefits, so his proposed calculation he mentioned in oral reasons for judgment was never actually used in calculating any benefits. However, Myrna Cannon, the workers’ compensation claims supervisor on Ranel’s case, testified that she took credit for anything over the $350 that Ra-nel earned at his job with the radio station. Therefore, we find it proper to address what the proper calculation of Ranel’s SEB should be.

The leading cases on this point which were cited by the parties and the WCJ are Phillips v. United Parcel Service, 28,110 (La.App. 2 Cir. 2/28/96), 669 So.2d 1375 and Gracianette v. Emeril’s Restaurant, 99-0981 (La.App. 4 Cir. 4/5/00), 761 So.2d 34. Both of these cases rely on La.R.S. 23:1021(10)(a)(iv), which provides for the calculation of the average weekly wage of part-time employees who are employed on an hourly basis. This is not the situation here. Ranel was injured and placed on light-duty status from his full-time job where he is paid monthly. He was able to continue earning the income he earned before at his part-time jobs and is not claiming a loss of income from those jobs as a result of the accident at his full-time job with McDonald’s. Therefore, Ranel’s average weekly wage should be' computed using |aLa.R.S. 23:1021(10)(b) to calculate the SEB he is entitled to as a result of not being able to work at his full-time job at McDonald’s.

PENALTIES AND ATTORNEY’S FEES

Ranel finally claims that the WCJ was clearly wrong in finding that the employer was reasonable in its efforts in seeking a second medical opinion with respect to the medical referrals recommended by Dr. Smith and penalties and attorney’s fees are appropriate for McDonald’s lack of effort. Ranel also claims that McDonald’s actions in failing to pay timely benefits at two different times subjected it to penalties and attorney’s fees.

The WCJ did not have to consider penalties and attorney’s fees for failure to timely pay Ranel’s benefits because the WCJ found that no benefits were due Ra-nel. The WCJ did find that Ranel was not entitled to penalties and attorney’s fees for failure to timely authorize medical treatment when it sought a second opinion on the medical referrals as suggested by Dr. Smith.

Recognizing that the determination of whether an employer or insurer should be cast with penalties and attorney’s fees is a question of fact subject to the manifest error standard of review, we will apply this standard to the WCJ’s finding regarding the authorization of medical treatment only. Authement v. Shappert Engineering, 02-1681 (La.2/25/03), 840 So.2d 1181. As to the award of penalties and attorney’s fees for the failure to timely pay benefits, we will make a de novo review of the record since this issue was not considered by the WCJ. We are also mindful that the award of penalties and attorney’s fees in workers’ compensation cases is penal in nature, imposed to discourage indifference and the undesirable conduct of employers and insurers. Fontenot v. Reddell Vidrine Water District, et al., 02-0489, 02-0442, 02-0478 (La.1/14/03), 836 So.2d 14.

linMedical Treatment

Unless the claim is reasonably controverted, a penalty and attorney’s fees can be imposed for failure to authorize medical treatment. La.R.S. 23:1201(F)(2); Authement, 840 So.2d 1181. The WCJ concluded that McDonald’s was reasonable in its efforts seeking a second opinion with respect to the referrals recommended by Dr. Smith and acted timely in authorizing those referrals.

On May 10, 2002, Dr. Smith made referrals for Ranel’s medical treatment. An appointment for a second medical opinion was scheduled on June 28 for a July 12 appointment with Dr. Rush, who agreed with Dr. Smith’s recommendations. Treatment was then authorized by McDonald’s. We cannot say that the WCJ’s conclusion that McDonald’s acted reasonably in authorizing the recommended medical treatment was clearly wrong.

Payment of Benefits

Louisiana Revised Statute 23:1201 authorizes the award of both penalties and attorney’s fees if continued benefits are not paid timely. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41. When the claim is “reasonably controverted,” or the nonpayment results from conditions over which the employer and insurer have no control, penalties and attorney’s fees are not available. Id. “ ‘[Unreasonably controverting a claim ... requires action of a less egregious nature than that required for arbitrary and capricious behavior.’ ” Fontenot, 836 So.2d at 21 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8 (La.12/1/98), 721 So.2d 885, 890).

Ranel argues that he has two penalty actions for failure to timely pay benefits. The first time occurred in May when his benefits were converted from TTD to SEB. Ranel did not receive a check for the months of May and June until July 31, 2002. In A “Notice of Payment” form was sent by Cannon to the Office of Workers’ Compensation indicating that payment of SEB would begin on May 1, 2002. Cannon testified that payment was delayed until receipt of the monthly earnings statements from Ranel. She used these earnings statements to take credits on anything she paid him. No other explanation was offered as to the reason that it was three months before Ranel received any benefits, especially since during this time, McDonald’s own second opinion doctor, Dr. Rush, indicated that Ranel was not able to work pending treatment when he saw him on July 12. We find an award of penalties and attorney’s fees appropriate for failure to timely pay Ranel’s claim for May and June 2002.

The second action arises from the failure to pay benefits for the months of September and October 2002. Cannon testified at the trial in November that no benefits had been paid since August. She explained that there was some confusion because the Office of Child Support Enforcement had called her and told her that it was supposed to receive child support. She explained that she had made a payment but it went to a closed account so Ranel did not get credit for the payment, so she waited until she got clarification from child support. She finally got two orders, in August and October, clarifying what the payment should be. At the trial on the matter, November 20, 2002, Cannon still had not issued any benefit checks but stated that they were in the process.

We find that there was no reasonable contravention by McDonald’s and award penalties and attorney’s fees for failure to timely pay SEB at this time. Ranel had already gone several months without payment. There was no excuse for not paying him once the court orders were in.

[ i ¡/Therefore, pursuant to La.R.S. 23:1201(F), we award a $2,000 penalty for each failure to timely pay Ranel his SEB benefits for a total penalty of $4,000. We also award $2,500 in attorney’s fees for each instance for the work performed at the trial level and on appeal in pursuing each claim for a total award of $5,000 in attorney’s fees.

For these reasons, the judgment of the Office of Workers’ Compensation is reversed. Ranel is entitled to SEB beginning May 1, 2002. We also award $4,000 in penalties and $5,000 in attorney’s fees. Costs of this appeal are assessed to Golden Stock Enterprises d/b/a McDonald’s.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: 1 .PETERS, J.

license: Public Domain

text:
    Diana WEEKS v. LOUISIANA PATIENT’S COMPENSATION FUND.
    No. CW 03-469.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      R. Scott lies, Attorney at Law, Lafayette, LA, for Plaintiff/Respondent, Diana Weeks.
    Nadia de la Houssaye, The Dill Firm, A.P.L.C., Lafayette, LA, for Interve-nor/Applicant, Louisiana Patient’s Compensation Fund.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   1 .PETERS, J.

The Louisiana Patient’s Compensation Fund (PCF) seeks supervisory writs from a judgment of the trial court denying its peremptory exception of prescription. For the following reasons, we deny the writ and remand for further proceedings.

DISCUSSION OF THE RECORD

On March 22, 1996, Diana Weeks filed the instant medical malpractice claim arising ont of events that occurred in November of 1993, when she underwent a hysterectomy. She initially named Dr. Etienne R. Brown, who performed the hysterectomy, as the only defendant. On March 24, 1997, Ms. Weeks additionally filed a complaint against Dr. Flynn Taylor, who had assisted Dr. Brown in the surgery, and she joined him as a defendant on October 17, 1997.

On December 19, 2002, Ms. Weeks filed a Petition for Approval of Settlement with Health Care Provider and Insurer, in which she alleged that she and the defendants had agreed to settle all of her claims against Dr. Taylor and his insurer for the sum of $100,000.00. Additionally, Ms. Weeks requested that the trial court approve the settlement, deem the liability of Dr. Taylor admitted, and recognize her right to seek additional damages from the PCF. The PCF answered the petition and asserted therein an exception of prescription, among other things. Subsequently, the trial court entered judgment in favor of Ms. Weeks, granting her requests.

Thereafter, the PCF reasserted its exception of prescription. The trial court entered judgment denying the exception of prescription. The PCF filed the instant application for supervisory writs. We granted the PCF’s writ application for the sole purpose of calling up the matter for full consideration on the merits.

| ¡¡.OPINION

The trial court denied the PCF’s exception of prescription on the basis that the PCF lacked standing to raise the exception, noting fourth and fifth circuit jurisprudence so holding. See for example McGrath v. Excel Home Care, Inc., 01-1270, 01-1271, p. 9 (La.App. 5 Cir. 3/26/02), 810 So.2d 1283, 1288 (holding that the PCF does not have the right to raise exceptions after the limitation of liability has been satisfied because to allow it to do so “would be to permit it to raise defenses only given to a Defendant, which it is not”), writ denied, 02-1344 (La.11/27/02), 831 So.2d 284; Miller v. S. Baptist Hosp., 00-1352, p. 12 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 19 (holding that the PCF “does not have the standing to raise the issue of prescription/peremption”), writ denied, 01-3379 (La.3/28/02), 811 So.2d 943; Tucker v. Lain, 98-2273, 01-0608, 01-0609, p. 13 (La.App. 4 Cir. 9/5/01), 798 So.2d 1041, 1049 (holding that the PCF “was precluded from asserting prescription even though its rights to do so were reserved to it by the trial court”), writ denied, 01-2715 (La.1/4/02), 805 So.2d 210; Rey v. St. Paul Fire & Marine Ins. Co., 95-0661, p. 3 (La.App. 4 Cir. 11/16/95), 665 So.2d 109, 111 (holding that “once the insurer has paid its policy limits, statutory liability is admitted and the [PCF] has no standing to raise the issue of prescription”), writ denied, 95-3033 (La.3/22/96), 669 So.2d 1223.

However, we need not reach the issue of whether its status as the PCF precludes its ability to bring the exception because we conclude that the payment on behalf of the health care provider of the $100,000.00 policy limits pursuant to La. R.S. 40:1299.44(C)(5) results in the health care provider’s renouncement of any prescription that has accrued. Thus, the trial court properly denied the PCF’s exception of prescription, albeit for different reasons.

| ^Specifically, “[prescription may be renounced only after it has accrued.” La.Civ.Code art. 3449. “[R]enunciation requires a new promise to pay the debt.... ” Lima v. Schmidt, 595 So.2d 624, 631 (La.1992). A “promise” means a declaration which gives to the person to whom it is made the right to expect or claim the performance of a specified act. Id.

Louisiana Revised Statutes 40:1299.44(C)(5)(e) provides:

In approving a settlement or determining the amount, if any, to be paid from the patient’s compensation fund, the trier of fact shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.

(Emphasis added.)

Recently, in Hall v. Brookshire Brothers, Ltd., 02-2404, 02-2421 (La.6/27/03), 848 So.2d 559, the supreme court interpreted then La.R.S. 40:1299.44(0(5) as allowing the quantification of victim and third-party fault in suits against the PCF when the health care provider has admitted liability by tendering the payment of $100,000.00. In so holding, the court explained that “[w]hen a defendant stipulates to liability, that defendant acknowledges that his or her fault (substandard performance of a legal duty owed to plaintiff for the protection from certain risks of harm) caused the plaintiff to sustain some damage (in the case of the qualified health care provider under the Medical Malpractice Act, that defendant stipulates that the damage he or she caused |4is a least $100,000).” Id. at 567.

Thus, for purposes of La.R.S. 40:1299.44(C)(5)(e), the stipulation of liability is an acknowledgment or admission of fault. Still, the plaintiff must “prove what damage, by kind and seriousness, was caused by defendant’s fault.” Hall, 848 So.2d at 567. Thereafter, “[t]he trier of fact shall determine the amount for which the fund is liable and render a finding and judgment accordingly.” La.R.S. 40:1299.44(C)(5)(a) (emphasis added). In effect, the aeknowledgment/admission of liability pursuant to La.R.S. 40:1299.44(0(5) operates as a declaration or promise that the PCF will pay any damages proven to be owed by the health care provider and gives the medical malpractice victim the right to expect or claim payment for damages proven to be owed by the health care provider. Thus, the admission of liability effects a renunciation of any prescription that may have accrued. Therefore, the trial court did not err in denying the PCF’s exception of prescription.

Nevertheless, the PCF urges that La.Civ.Code art. 3453 applies to allow it to assert the exception of prescription. Louisiana Civil Code Article 3453 provides:

Creditors and other persons having an interest in the acquisition of a thing or in the extinction of a claim or of a real right by prescription may plead prescription, even if the person in whose favor prescription has accrued renounces or fails to plead prescription.

This argument was also advanced by the PCF in Kelty v. Brumfield, 534 So.2d 1331 (La.App. 4 Cir.1988), writs denied, 536 So.2d 1221, 1222 (La.1989). In rejecting the PCF’s argument in that regard, the fourth circuit in Kelty stated:

The Medical Malpractice Act does not contemplate the [PCF] as a party defendant. Williams v. Kushner, 449 So.2d 455 (La.1984). The [PCF] is a “budget unit” of the State. La.R.S. 40:1299.44(A)(5)(g). The functions of administering the [PCF] are carried out by the |Rcommissioner of insurance. La. R.S. 40:1299.44(A)(5)(b). The act does not give the [PCF] status as a co-obligor or insurer of the health care provider. It is a creature of the legislature designed to satisfy settlements and/or judgments against health care providers in excess of $100,000.00. The [PCF] does not have to be made a party to the litigation, nor cast in judgment in order to disburse its funds. The only requirement is a final judgment or a court approved settlement, or a final arbitration award, against the health care provider in excess of one hundred thousand dollars. La.R.S. 40:129944(B)(2)(a-c). See also, Forstall v. Hotel Dieu Hospital, 429 So.2d 213 (La.App. 4th Cir. 1983), writ denied 433 So.2d 1054 [ (La.1983) ].
In Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676 (La.1986), the Supreme Court defined the [PCF] as a statutory intervenor “who has an interest in the proceedings between the claimant and the health care provider because any damages in excess of one hundred thousand dollars are payable by the [PCF].” Id. at 680, 681 ...
Thus the [PCF] is limited by the provisions of the Medical Malpractice Act, the act which created it. We are of the opinion that the legislature did not intend to give the [PCF] equal status as a party defendant once the health care provider settled for its maximum liability.... We therefore conclude, under the factual scenario of this case, that the [PCF] was not given the status of “creditor or other person” within the meaning of Civil Code Article 3453. It does not have the right to invoke the provisions of that article, nor does it have the right to question, for any other reason, the health provider’s statutorily admitted liability.

Id. at 1333-34 (footnote omitted).

We agree with the pronouncements in Kelty and reject the PCF’s argument in that regard.

DISPOSITION

For the foregoing reasons, we deny the writ and assess costs to the Louisiana Patient’s Compensation Fund to the extent allowed by law.

WRIT DENIED.

      . For a more detailed factual and procedural background, see our prior opinion in Weeks v. Brown, 01-00495 (La.App. 3 Cir. 10/3/01), 796 So.2d 839, in which we reversed the trial court’s grant of a summary judgment in favor of one of the defendants.

      . Louisiana Revised Statutes 40:1299.44 was amended by 2003 La. Acts No. 882, § 1, in part to redesignate the following portion of former La.R.S. 40:1299.44(C)(5) as La.R.S. 40:1299.44(C)(5)(e). Current La.R.S. 40:1299.44(C)(5)(e) reproduces the substance of its predecessor provision with the exception that it now refers to "the trier of fact” as opposed to the former version's reference to "the court.” Obviously, this change has no bearing on the issue at hand and simply dovetails with amendments elsewhere to the Statute that specify that the PCF has the right to request a trial by jury. Further, 2003 La. Acts No. 882, § 2, provides that "[t]he provision of this Act enacting R.S. 40:1299.44(C)(5)(a) and (e) are procedural and interpretative in nature and are intended to clarify and codify existing law.”

      . We note that changes have been made regarding La.R.S. 40:1299.44 since Kelty. However, these changes do not materially affect our resolution of this issue.


author: LDOUCET, Chief Judge. _JjWOODARD, J., | JETERS, J,

text:
    Scarlet Christine ADAMS, Plaintiff-Appellant, v. TEMPLE INLAND, LA, Defendant-Appellee.
    No. 03-187.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      R. Scott lies, Lafayette, LA, for Plaintiff/Appellant, Scarlet Christine Adams.
    Mark L. Riley, Onebane Law Firm, Lafayette, LA, for Defendant/Appellee, Temple Inland, LA.
    Court composed of NED E. DOUCET, JR., Chief Judge, BILLIE COLOMBARO WOODARD and JIMMIE C. PETERS, Judges.
   LDOUCET, Chief Judge.

In this workers’ compensation case, Claimant, Scarlet Christine Adams, appeals a judgment denying her claim for benefits in connection with her mental injury caused by mental stress due to sexual harassment in the course of her employment. For the following reasons, we affirm the judgment of the Workers’ Compensation Judge (WCJ).

DISCUSSION OF THE RECORD

At the beginning of trial, the parties stipulated that there were no facts in dispute and that the matter presented only a legal issue.

The undisputed facts establish that Ms. Adams began working for Temple Inland, LA (Temple Inland) in late 2000 or early 2001 as a utility hand. Almost immediately after she began her employment, her supervisor, David James “Red” Harper, and a co-worker, Kevin St. Romain, began sexually harassing her. Initially, the harassment took the form of “little comments in front of all the ... guys in the break room.” For example, when Ms. Adams would bend over, Harper and St. Romain would talk about “what they would like to do.” Another co-worker, Syrina Silas, also began making comments to Ms. Adams’s male co-workers that Ms. Adams was not married and “needed to be laid.” Harper carried the harassment even further by requiring Ms. Adams to leave her workstation at times and spend time in his office. There, he would describe to her the various ways in which he wanted to have sex with his wife and would complain about his wife’s unwillingness to engage in these sexual activities.

It did not take long for Harper’s and St. Romain’s harassment to escalate beyond vulgar comments to propositions and threats. When Ms. Adams began refusing to enter Harper’s office with him, he warned her that he could make her job 12easy or difficult. He also began propositioning Ms. Adams to have sex with him, which she refused to do. Despite her rejection of his advances, Harper continued to press Ms. Adams for sexual favors, explaining to her that her job would be in jeopardy if she did not submit. Additionally, in the presence of Ms. Adams’s coworkers, Harper “offered to get a hotel room so the guys could get [her] out of their system.” On at least one occasion, Harper required Ms. Adams, who worked the night shift, to stay late for clean-up duties and threatened to take her to a place where no one would be able to hear her screams and then rape her. Ms. Adams’s fears in this regard were exacerbated by a rumor that Harper had sexually exploited another female employee by having sex with her in the sleeper cab of a truck at work and then requiring her to give sexual favors to other men at work, under the threat of job loss. St. Romain also threatened to rape her and to burn her house down.

Moreover, the sexual harassment by Harper and St. Romain turned physical as well. Harper confined Ms. Adams to “areas where he could just get to [her],” and “he would pin [her] in a corner, and [she] would get felt up.” Additionally, Harper “would grab himself and ask [her] if [she] wanted some.” St. Romain also groped Ms. Adams.

In June of 2001, Ms. Adams reported the harassment to Temple Inland’s human resources department. To its credit, shortly thereafter, Temple Inland terminated Harper’s employment and suspended and then transferred St. Romain and Ms. Silas.

The sexual harassment resulted in Ms. Adams developing psychological problems. Prior to the harassment, Ms. Adams had not had such problems nor had she ever seen a counselor or mental health professional. In July of 2001, Ms. Adams saw Dr. Charlotte M. Fowler, a family practitioner, at the DeRidder Family Health | .¡¡Clinic. Dr. Fowler diagnosed anxiety and prescribed medication. Additionally, Dr. Fowler reported that Ms. Adams “must find counseling [for] this tremendous amount of stress and trauma that she is handling.”

On July 24, 2001, and August 22, 2001, Ms. Adams saw Dr. David S. Post, a clinical psychologist, for evaluation of psychological problems arising from the harassment at Temple Inland. Following psychological evaluation and testing, Dr. Post determined that Ms. Adams was “suffering from severe traumatic anxiety as a result of her harassment on the job” and diagnosed her as having acute stress disorder with agoraphobia and depressive disorder. Dr. Post cautioned that Ms. Adams was “at high risk for developing major depressive disorder if her conditions [did] not improve.” He recommended that Ms. Adams leave her employment with Temple as soon as possible and that she be evaluated for a trial of anxiolytic and antidepressant medication should her anxiety disorder continue. Thereafter, by letter dated September 5, 2001, Dr. Post advised Temple Inland of Ms. Adams’s condition “due to unusual treatment in her work environment.” Dr. Post also informed Temple Inland that he had advised Ms. Adams “that she must take an immediate medical leave of absence from work in order to prevent serious deterioration of her mental and physical health.”

Ms. Adams discontinued working and filed a claim for compensation benefits for mental injury from the sexual harassment as well as for an unrelated elbow injury. The parties stipulated at the hearing that there was an injury to Ms. Adams’s elbow for which Temple Inland was continuing to provide medical treatment. At the hearing on the claim, the sole issue before the WCJ was the compensability of the claim for benefits arising out of the sexual harassment.

| ¿The WCJ rendered judgment in favor of Temple Inland and dismissed Ms. Adams’s claim, finding as follows:

The court found that the claimant failed to prove her injury was caused by a sudden, unexpected and extraordinary situation; in fact, it was due to events that occurred over an extended period of time, not by a sudden, unexpected or extraordinary event. Claimant testified that the various events and occurrences of sexual harassment stretched from January 2001 to June 2001. Based on the testimony presented, the court is unable to identify a “sudden, unexpected and extraordinary” occurrence. This court by no means condones the behavior of the defendants’ employees; however, this claim does not meet the conditions established under the Workers’ Compensation Act to be a compensable claim.

Ms. Adams has appealed this judgment, contending that the WCJ erred in concluding that, because the sexual harassment occurred over an extended period of time, her mental injury is not compensable.

DISCUSSION OF THE LAW

Louisiana Revised Statutes 23:1021(7)(b) (Emphasis added) provides as follows concerning a “mental/mental” claim:

Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

In Pham v. Contico Int'l, Inc., 99-945, pp. 5-6 (La.App. 5 Cir.3/22/00), 759 So.2d 880, 882-83 (footnotes omitted)(emphasis added), our brethren of the fifth circuit pointed out the following:

We note that the exclusive remedy provisions of R.S. 23:1032 do not grant an employer immunity from all tort suits by an employee simply by virtue of the employment relationship between the two. This State recognizes an employee’s cause of action against an employer for the torts of wrongful or retaliatory discharge, sexual harassment, and false accusation, false imprisonment, and defamation. Therefore, the statutory immunity granted to an employer by LSA-R.S. 23:1032 is not an immunity from all tort suits by an employee, but only those on | ^account of an injury or disease com-pensable under the workers’ compensation statutory scheme.

Additionally, we note the case of Sidwell v. Horseshoe Entm’t Ltd. P’ship, 35,718 (La.App. 2 Cir.2/27/02), 811 So.2d 229. In Sidwell the Claimant alleged that she was sexually harassed by being subjected to repeated sexual comments by a co-worker who also showed her a nude picture of himself. The court, in Sidwell, noted the following:

Mental injuries caused by mental stress have become commonly known in Louisiana workers’ compensation jurisprudence as “mental/mental” injuries and are addressed by La. R.S. 23:1021(7)(b), which states as follows:
Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence. (Emphasis added).
The mental injury must be precipitated by an accident, an unexpected and unforeseen event that occurs suddenly or violently. Edwards v. Fischbach & Moore, Inc., 31,371 (La.App.2d Cir.12/09/98), 722 So.2d 344, citing Sparks v. Tulane Medical Center Hosp. and Clinic, 546 So.2d 138 (La.1989). The mere showing that a mental injury was related to general conditions of employment, or to incidents occurring over an extended period of time, is not enough to justify compensation. Sparks, supra; Edwards, supra. Absent an identifiable accident, general allegations of inability to work due to stress or tension caused by working conditions would not give rise to a compen-sable claim. Id.
Id. at 231.

In the recent case of Partin v. Merchants & Farmers Bank, 01-1560 (La.3/11/02), 810 So.2d 1118, the claimant alleged that she suffered a compensable mental injury when her employer (a bank) demoted her after eighteen years of employment on the basis that she lacked managerial skills. The OWC awarded | (¡benefits and this court affirmed. The supreme court noted that, while the claimant personally found the demotion to be extraordinary and unexpected because she did not know that her employer was displeased with her and because she was quite settled in her career, “by its nature, a demotion for failing to satisfactorily perform one’s job creates stress that is neither unexpected nor extraordinary in the usual course of employment at a bank.” Id. at 1126. The court explained that “[a] personnel action is not necessarily extraordinary because it is unfair from the employee’s point of view.” Id. The supreme court went into great detail in analyzing the LAW applicable to “mental/mental” claims stating as follows:

Prior to 1989, Louisiana courts were split on whether mental injuries caused solely by mental stress (known as “mental/mental” claims) were compensable under the Workers’ Compensation Act. At that time, the term “injury” was defined in subsection 1021(7) of the Act, which stated:
“Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.
La. R.S. 23:1021(7) (1989). To remedy this split in the courts, a bill was proposed in the state legislature that eliminated the compensability of mental/mental claims. Minutes of Meeting, House Committee on Labor and Industrial Relations 15 16, May 26, 1989, Reg. Sess.1989. It retained the text of subsection 1021(7) but redesignated it as 1021(7)(a), and then added subsection 1021(7)(b), which stated:
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter.
H.B. No. 1431, Reg. Sess.1989 (original version). This amendment was proposed along with many other amendments to the Workers’ Compensation Act, which were presented together as House Bill No. 1431. The stated purpose of HB 1431 was to address the |7problem of employers’ increased liability in many areas, including mental injury claims. House Minutes, supra at 15. The bill’s author explained that the bill addressed the “crisis” in Louisiana regarding workers’ compensation insurance: Louisiana had the sixth highest workers’ compensation insurance rate in the United States, which prevented new businesses from being able to obtain the insurance. Minutes of Meeting, Senate Committee on Labor and Industrial Relations 4, June 7, 1989, Reg. Sess.1989 A proponent of the bill explained that the bill addressed the fact that Louisiana courts had been ignoring much of the language in the Workers’ Compensation Act, and that if the laws had been interpreted as they were written, constant changes would not be necessary. House Minutes, supra at 18. He stated that the bill was meant to statutorily override cases that had liberalized the workers’ compensation law regarding mental stress and heart attacks, and to impose more difficult tests in order to recover. Senate Minutes, supra at 5.
The proposed language in subsection 1021(7)(b) regarding mental/mental claims passed the house on June 1,1989. Official Journal of the House of Representatives of the State of Louisiana, Twenty-Ninth Day’s Proceedings 80, Reg. Sess.1989, June 1, 1989. Twelve days later, however, the Senate adopted an amendment which added a clause to subsection 1021(7)(b) that made mental/mental claims compensable in certain circumstances. Official Journal of the Senate of the State of Louisiana, Twenty Ninth Day’s Proceedings 14, Reg. Sess. 1989, June 18, 1989. The added clause is indicated below with underlined text:
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
Id. This amendment was adopted by the house on June 21, 1989, and the bill passed the legislature with the added language that mental/mental claims were not compensable except under those limited circumstances. House Journal, supra, Forty-Third Day’s Proceedings at 30, June 21, 1989. The governor signed HB 1431 on June 30, 1989, and it became effective as Act 454 of 1989 on January 1, 1990. 1989 La. Acts 434.
During the window of time between the enactment of HB 1431 and its effective date, this court held that a mental/mental claim was compensable as an “injury” under the pre-amendment version of La. R.S.23:1021(7) in Sparks v. Tulane Med. Center Hosp. & Clinic, 546 8So.2d 138 (La.1989) (decided on September 11, 1989). Our decision today, though, is governed by the new, amended version of the law governing mental/mental claims found at La. R.S. 23:1021(7)(b), as quoted above. Subsection 1021(7)(a) (which was previously designated as subsection 1021(7)) is no longer at issue because the new law specifically provides for mental/mental claims in subsection 1021(7)(b).
In a mental/mental claim, a claimant must not only satisfy subsection 1021(7)(b), but also the general requirements for recovery under the Workers’ Compensation Act, found in La. R.S. 23:1031. Section 1031 limits recovery under the Act to situations where “an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031 (emphasis added). We note that subsection 1021(7)(b) incorporates this entire emphasized phrase into its definition of mental injury, stating that a mental injury or illness resulting from work-related stress shall not be considered a “personal injury by accident arising out of and in the course of his employment ” and is not compensable unless the mental injury resulted from a sudden, unexpected, and extraordinary stress related to the employment. In contrast, subsection 1021(7)(a) does not contain this language, but simply defines “injury” and “personal injuries” as injuries by violence to the physical structure of the body and their naturally-resulting diseases or infections. La. R.S. 23:1021(7)(a). Yet, by incorporating the language from section 1031 into subsection 1021(7)(b), we do not think that the legislature intended the requirement of “sudden, unexpected, and extraordinary stress related to the employment” to satisfy the whole of “personal injury by accident arising out of and in the course of employment.” Our conclusion is supported by the legislative history of subsection 1021(7)(b). As discussed above, the house originally intended for subsection 1021(7)(b) to preclude the compens-ability of all mental/mental claims. It accomplished this by referring to the basic requirements of compensability under section 1031 in a peremptory statement that “a mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not com-pensable pursuant to this Chapter.” H.B. No. 1431, Reg. Sess.1989 (original version) (emphasis added). However, when the senate later chose to amend that subsection and make mental/mental claims compensable in certain limited circumstances, it merely tacked on an “unless” clause to the end of the original language, rather than redrafting the entire subsection. Senate Journal, supra, Twenty-Ninth Day’s Proceedings at 14, June 13, 1989. The logical deduction is that the legislature did not intend to displace the basic requirements of accident, arising out of employment, and in the course of employment in mental/mental claims. Rather, the legislature intended to provide narrow circumstances under which mentai/mental claims would be compensable, assuming that the requirements of accident, arising out of employment, and in the course 1 flof employment were also satisfied. Therefore, a mental/mental claimant must fulfill both the requirements in section 1031 and those in subsection 1021(7)(b) in order to recover.
For the reasons below, we conclude that Claimant’s injury fails to meet the requirements of subsection 1021(7)(b). Because her failure to meet the requirements of subsection 1021 (7)(b) precludes Claimant’s recovery for her mental/mental claim, it is not necessary to also discuss whether the requirements of section 1031 are met.
In analyzing Claimant’s injury under subsection 1021(7)(b), we first note that this subsection states in part that a mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence. Claimant contends that the stress brought on by her demotion was unexpected and extraordinary because Claimant’s career at the bank was well-established and successful, Claimant was close to reaching retirement, and the demotion was not a known, scheduled event. Claimant testified that she in no way expected this demotion because she assumed the bank was satisfied with her written explanation of the incident involving the five dollars, and because she had no prior indications that the bank was dissatisfied with her performance as a manager. Nevertheless, we find that, even under the facts as presented by Claimant, this demotion does not fit the meaning of unexpected and extraordinary stress under subsection (7)(b).
Although subsection (7)(b) falls under the “definitions” subpart of the Workers’ Compensation Act, it reads more like a declaration of the conditions under which a mental injury will be compensa-ble. In this way, it is not so much a definition of mental injury as it is a definition of compensable mental injury. Under the statute, a mental injury is compensable depending upon the type of stress which triggers that injury. The legislative history of subsection (7)(b), outlined above, reveals an active decision on the part of the legislature to so condition compensability in order to tighten the reigns of recovery for mental/mental claims. The desire for more difficult tests and restricted recovery indicates that the legislature intended that the nature of the stress itself be evaluated, rather than the stress being evaluated from the employee’s perspective. This of course differs from the determination of whether an “event” was unexpected or unforseen under the accident requirement of subsection 1021(1), which is made by viewing the event from the employee’s perspective. See Williams, 546 So.2d at 156; Parks v. Insurance Co. of N. Am., 340 So.2d 276, 281 (La.1976); Ferguson v. HDE, Inc., 270 So.2d 867, 870 (La.1972). Yet we find that this different evaluation of the “stress” under subsection 1021(7)(b) is mandated by the legislative intent. If the stress were evaluated from the | ^employee’s perspective, much wider recovery would result under subsection (7)(b) because nearly every employee would consider extraordinary a stress that caused him mental injury. Although Louisiana courts have construed the terms of the Workers’ Compensation Act liberally in light of its “beneficient purpose of relieving workmen of the economic burden of work-connected injuries by diffusing the costs in channels of commerce,” there is a legislative intent to the contrary in subsection (7)(b). Sparks, 546 So.2d at 146 (quoting Parks v. Insurance Co. of N. Am., 340 So.2d 276, 281 (La.1976)). The most likely inference is that the legislature intended to restrict recovery under subsection (7)(b) to those mental injuries that result from stresses which, by their nature, are sudden, unexpected, and extraordinary in the usual course of employment in that working environment.
Given its proper and necessary interpretation, it is evident that the new law under subsection 1021(7)(b) addresses the concerns previously expressed by this and other Louisiana courts. Before subsection 1021(7)(b) took effect and provided an express statutory basis for mental/mental claims, courts struggled to find a place for such claims under what was then subsection 1021(7), which basically restricted “injuries” to those caused by violence to the physical structure of the body. See, e.g., Sparks v. Tulane Med. Center Hosp. & Clinic, 546 So.2d 138 (La.1989); Jones v. City of New Orleans, 514 So.2d 611 (La.App. 4 Cir.1987); Guillot v. Sentry Ins. Co., 472 So.2d 197 (La.App. 5 Cir.1985); To- quino v. Sears, Roebuck and Co., 438 So.2d 625 (La.App. 4 Cir.1983). Sparks reasoned that mental/mental claims were compensable under the old law because there was violence in the form of a harmful effect on the physical structure of the body, which includes the complex of integrated and interdependent bones, tissues and organs that function together by means of electrical, chemical and mechanical processes. Sparks, 546 So.2d at 145-46 (quoting Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318 (1955)). In doing so, the Sparks court was also aware of the potential problems that could result if every claim of mental injury were compensable. While the strict language in subsection 1021(7) did not appear to lend itself to a limitation on the com-pensability of mental/mental claims, the “accident” requirement did. The court stated:
[A] mere showing that a mental injury was related to the general conditions of employment, or to incidents occurring over an extended period of time, is not enough to entitle the claimant to compensation. The mental injury must be precipitated by an accident, i.e., an unexpected and unforeseen event that occurs suddenly or violently.
Sparks, 546 So.2d at 147 (emphasis in original). Under the new law, it is not necessary to limit mental/mental claims through the Inaccident requirement as was appropriately done under the old law in Sparks. The new law provided in subsection 1021(7)(b) supplies its own limitation by disallowing compensation for mental injuries unless they result from stress that, by its nature, is sudden, unexpected, and extraordinary in the usual course of employment in that working environment. Although the accident requirement must still be fulfilled as explained above, the limitation on claims should now be found in subsection 1021(7)(b).

Partin, 810 So.2d at 1122-26 (Underlining ours).

In the instant case, the WCJ determined that, because there was not a single, unexpected, and extraordinary “event” that caused Ms. Adams’s mental injury but rather “various events and occurrences of sexual harassment” that had “occurred over an extended period of time,” Ms. Adams failed to prove that her mental injury was compensable.

The most recent case we have found addressing alleged sexual harassment is Morris and Dickson Co. Ltd. v. Killingworth, 36,117 (La.App. 2 Cir. 10/4/02), 830 So.2d 332, writ denied, 03-71 (La.3/28/03), 840 So.2d 571. In Morris and Dickson, their employee, Deborah KMngworth, resigned stating she was unable to work due to depression, anxiety attacks and other health problems which resulted from an incident on April 14, 2000, when she was sexually harassed by a male co-worker. Following her resignation she sued Morris and Dickson in federal court alleging sexual harassment and retaliation, both violations of Title VII of the Civil Rights Act of 1964. In response to her suit, Morris and Dickson “filed a disputed claim form with the Office of Workers’ Compensation (“OWC”), alleging a bonafide dispute with regard to Killingworth’s injuries.” Id. at 333. Killingworth answered the workers’ compensation action with an exception of lack of subject matter jurisdiction which was denied by the OWC. On review of Ms. Killingworth’s •writ application, the second circuit reversed the judgment of the OWC stating:

| ^.Killingworth contends the OWC does not have jurisdiction over her sexual harassment claim because it is outside of the scope of the Louisiana Workers’ Compensation Act, (“WCA”), i.e., LSA-R.S. 28:1021 et seq.... M & D asserts that the judgment simply allows the employer the statutory right to proceed with a bonafide dispute of an on-the-job mental injury and the ability to conduct discovery to defend such a claim in the only arena at their disposal. We disagree. The weakness of M & D’s argument lies in the failure to recognize the distinction drawn in Louisiana law between claims that arise under the state workers’ compensation law and claims that arise under other statutes and authorities.
[A] state law basis for refuting M & D’ s claim is provided by LSA-R.S. 23:1032(B), which states:
Nothing in the Chapter shall affect the Lability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fíne or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act. (Emphasis added.)
Under the applicable statutory authority, Killingworth’s sexual harassment claim is not within the scope of this state’s workers’ compensation law. Therefore, we find that the OWC does not have jurisdiction over this claim.

While we deplore the conduct of Ms. Adams’ co-workers, we do note that as soon as she reported their offending actions to management, her chief protagonist was fired and the other two, lesser offenders, were first suspended, then transferred. Our review of the statutory scheme and the jurisprudence convinces us that, while Ms. Adams may have a legal remedy for the mental injury she sustained, that remedy does not lie under the Workers’ Compensation Act.

Accordingly, for the reasons stated above, the judgment of the OWC is affirmed. Inasmuch as Claimant is before us as a pauper, we pretermit the assessment of costs.

AFFIRMED.

WOODARD, J., concurs and assigns written reasons.

PETERS, J., dissents and assigns written reasons.

_JjWOODARD, J.,

concurring.

While I find that Partin v. Merchants & Farmers Bank mandates that we dismiss Ms. Adams’ claim, I respectfully disagree with our supreme court’s interpretation, in that case, of the legislature’s intent in La. R.S. 23:1021(7)(b), which, expressly, makes a mental/mental injury compensable.

As the supreme court recognizes in Par-tin, before 1989, the Workers’ Compensation laws did not, specifically, address mental/mental claims. Nonetheless, some lower courts had considered them to be compensable. However, other lower courts had found that the workers’ compensation laws did not encompass such claims. Thus, attempting to remedy the split in these courts, the legislature added an express provision concerning mental/mental claims. As originally drafted, the provision, eliminated mental/mental claims from the scope of the workers’ compensation laws. It read:

| ¡>(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter.

However, the legislature did not adopt the provision as written. Instead, the Senate added the following to it:

unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

(Emphasis added.)

Notwithstanding, in Partin, the supreme court interpreted, the final version as if it did not contain the italicized language, below:

Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

Specifically, the supreme court found that the amending “unless” clause referred, only, to “injury,” not to the entire clause that preceded it — “by accident arising out of and in the course of employment.” It reasoned that this language was but a remnant of the proposed bill which eliminated mental/mental claims, altogether. Thus, it construed the language, not in light of its surrounding statutory text but, rather, in light of a proposed provision that failed to garner enough votes to become law. In doing so, it adopted a construction of La.R.S. 23:1021(7)(b) that renders the clause “by accident arising out of and in the course of employment,” superfluous, because, in effect, its interpretation disregards this language. In doing so, it violates well-settled rules of statutory interpretation.

| -¡Rules of statutory interpretation require “courts [to] give effect to all parts of a statute, and not adopt a construction making any part superfluous or meaningless, if that result can be avoided.” “Statutory interpretation commences with the language of the statute and progresses with the assumption that each statutory term has a particular, non-superfluous meaning.” (Emphasis added.)

If the legislature intended Partin’s interpretation, it, easily, could have eliminated “by accident arising out of and in the course of employment” from the amendment or worded it “unless the accident causes mental injury that was the result of a sudden — ” Since it did neither, I believe we must presume that it intended for the “unless” clause to refer to the entire preceding clause which covers accident, as well as injury.

This makes sense, given that the “unless” clause contains language which parallels La.R.S. 23:1031(A)’s requirement of “accident arising out of and in the course of employment” but redefines the “accident” requirement so that it is germane to this section’s special type of injury. Specifically, regarding physical injuries, the legislature defines “accident” in La.R.S. 23:1021(1) as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently,” while for a mental injury, it parallels this language in (7)(b) with “sudden, unexpected and extraordinary stress.” These latter adjectives do not describe the mental injury, itself; rather, they describe the stress or the cause of the mental injury. In other words, just as “accident” and the adjectives used in its definition in La.R.S. 23:1021(1) do not refer to the injury, itself, but, rather, to the cause of the injury, so do the adjectives that describe the stress refer to the cause of the injury, not the injury, itself. While (7)(b) does not use the word “cause,” it is obvious that this is what it means when it states mental injury that “results from which implies cause.

Simply, the meaning of (7)(b) is logically discerned by changing it from a negative statement to a positive one which, essentially, deems that there has been a work related accident and a compensable injury when the mental injury resulted from 14“a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.” (Emphasis added)

Basically, the legislature incorporated 1031’s requirements into those for (7)(b) claims, using language in (7)(b) that is more applicable to mental injuries caused by mental stress than is the language used to define “accident” for a physical injury. Thus, this indicates that our legislature intended for the analysis of a compensable mental/mental injury to be completely contained within (7)(b)’s borders and, thus, for our analysis to end once a plaintiff meets those requirements. A further indication of (7)(b)’s intended self-sufficiency is that the legislature, also, delineates within that provision a special burden of proof for a mental injury. On the contrary, Partin’s splintered approach regarding a mental/mental injury requires a plaintiff to prove causation twice. Namely, a plaintiff must prove “accident,” a causation element under 1031(A), in addition to (7)(b)’s causation element, even though the legislature intended- the latter to be a substitute for that in 1031.

By the legislature’s establishment of a worker’s compensable mental/mental claim, albeit in limited circumstances, surely, it intended for Ms. Adams’ situation to constitute such a circumstance, given the foul behavior of her co-workers towards her and the prodigious distress, which she proved their behavior caused. Nevertheless, given Partin, I am constrained from giving her relief.

| JETERS, J,

dissenting.

Initially, I respectfully disagree with the majority’s conclusion that Ms. Adams has no remedy under the Workers’ Compensation Act. As I appreciate the majority’s position in part, it is that the WCJ does not have subject matter jurisdiction over Ms. Adams’s sexual harassment claim because it is outside of the scope of the Workers’ Compensation Act.

I note that Temple Inland has not challenged the subject matter jurisdiction of the WCJ over Ms. Adams’s claim. Nevertheless, “[t]he issue of subject matter jurisdiction ... may be considered at any time, even by the court on its own motion, at any stage of an action.” Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329, pp. 7-8 (La.2/26/02), 815 So.2d 7, 13. Still, I do not find that the WCJ lacks subject matter jurisdiction over this claim.

Louisiana Revised Statutes 23:1310.3(E) provides in part that “the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter.... ” Ms. Adams’s claim is for workers’ compensation indemnity and medical benefits as well as penalties and attorney fees in connection with her mental injury caused by mental stress due to sexual harassment in the course of her employment. She is not seeking tort damages or any other relief that would fall outside of the jurisdiction of the WCJ in these ^proceedings. As such, Ms. Adams’s claim arises out of the Workers’ Compensation Act, and the WCJ has subject matter jurisdiction. I see nothing in La.R.S. 23:1310.3(E) that would exclude from the jurisdiction of the WCJ a claim otherwise cognizable under the Workers’ Compensation Act merely because the injury resulted from acts which could be classified as intentional.

However, the majority cites Morris & Dickson Co. v. Killingworth, 36,117 (La.App. 2 Cir. 10/4/02), 830 So.2d 332, writ denied, 03-0071 (La.3/28/03), 840 So.2d 571, in support of its determination that any remedy to which Ms. Adams is entitled does not fall within the purview of the Workers’ Compensation Act. In Morris & Dickson Co., the employee initiated a charge with the Equal Employment Opportunity Commission, alleging sexual harassment and retaliation for engaging in protected activities in violation of Title VII of the Civil Rights Act of 1964. Thereafter, the employee filed a complaint in federal district court based upon the Title VII violations. It was the employer in Morris & Dickson Co. that filed a disputed claim form with the OWC, alleging a bonafide dispute regarding the employee’s injuries. The employee filed an exception of lack of subject matter jurisdiction in the workers’ compensation proceedings. The second circuit found that in fact the OWC did not have subject matter jurisdiction. In so finding, the second circuit explained that “statutory discrimination claims are distinct and do not arise under the state workers’ compensation law.” Id. at 334 (emphasis added). In the instant case, Ms. Adams has not asserted Title VII claims against Temple Inland in these proceedings; her claim against Temple Inland is solely for workers’ compensation benefits.

However, the second circuit also stated, among other things, that the |,-¡employee’s “sexual harassment claim [was] not within the scope of the WCA because it [was] not a workplace injury arising out of the course of her employment.” Id. Rather, the second circuit found that the employee had “allege[d] that an intentional tort was committed against her by a co-employee, a claim which is not within the purview of the state workers’ compensation law.” Id. Importantly, Ms. Adams has not alleged that an intentional tort was committed against her and has not brought a suit for damages for intentional tort against Temple Inland.

Louisiana Revised Statutes 23:1032(A)(l)(a) provides in part: “Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee ... on account of an injury ... shall be exclusive of all other rights, remedies, and claims for damages. ...” This statute provides immunity to an employer from tort suits by the employee, except that for intentional acts the employer is not immune from tort suits. The tort immunity operates as an affirmative defense in a tort action. See generally Brown v. Adair, 02-2028 (La.4/9/03), 846 So.2d 687. I see nothing in the statute, however, indicating that the converse is true, i.e., that the employer is immune from a workers’ compensation suit by the employee merely because the acts resulting in injury to the employee may be classified as intentional. “[Louisiana Revised Statutes 23:1032] is not a law evaluating conditions of legality of defendant’s conduct but, rather, serves as a vehicle for asserting a substantive defense that defeats an otherwise viable claim.” Id. at 690. In my opinion, La.R.S. 2S:1032(A)(l)(a) focuses on the exclusiveness of the rights and remedies granted an employee; it does not serve to defeat jurisdiction where the acts committed by the employer or co-employee may be classified as intentional.

Ms. Adams may have chosen to avail herself of the quid pro quo benefits of the Uworkers’ compensation scheme instead of pursuing an intentional tort suit for which she would have had to bear the burden of production on the issue of fault and the concomitant risk of failing in that burden. I do not find that this case falls outside of the jurisdiction of the WCJ simply because the acts giving rise to Ms. Adams’s injuries may be classified as intentional.

Further, I respectfully disagree with the majority’s resolution of the issue raised by Temple Inland in the proceedings below, ie., whether Ms. Adams’s claim meets the definition of an “accident.” As set forth by the majority, in Partin v. Merchants & Farmers Bank, 01-1560, pp. 12-13 (La.3/11/02), 810 So.2d 1118, 1125, the supreme court explained:

Under the statute, a mental injury is compensable depending upon the type of stress which triggers that injury. The legislative history of subsection 7(b) ... reveals an active decision on the part of the legislature to so condition compensa-bility in order to tighten the reigns of recovery for mental/mental claims. The desire for more difficult tests and restricted recovery indicates that the legislature intended that the nature of the stress itself be evaluated, rather than the stress being evaluated from the employee’s perspective. This of course differs from the determination of whether an “event” was unexpected or unforseen under the accident requirement of subsection 1021(1), which is made by viewing the event from the employee’s perspective .... The most likely inference is that the legislature intended to restrict recovery under subsection (7)(b) to those mental injuries that result from stresses which, by their nature, are sudden, unexpected, and extraordinary in the usual course of employment in that working environment.

(Emphasis added) (citations omitted).

In determining that, because there was not a single “event” that caused Ms. Adams’s mental injury but rather “various events and occurrences of sexual harassment” that had “occurred over an extended period of time,” Ms. Adams failed to prove that her mental injury was compen-sable, the WCJ essentially imposed upon Ms. Adams the burden of proving that the sexual harassment she experienced met the |Rdefinition of “accident” as contained in La.R.S. 23:1021(1). For purposes of that subsection, an “accident” is defined in part as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently ... and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” Id. (emphasis added).

Moreover, the majority cites Sidwell v. Horseshoe Entertainment Ltd. Partnership, 35,718 (La.App. 2 Cir. 2/27/02), 811 So.2d 229 (citing Sparks v. Tulane Medical Center Hospital & Clinic, 546 So.2d 138 (La.l989)), for the proposition that a mental injury caused by incidents occurring over an extended period of time is not compensable. However, Sidwell was decided prior to Partin.

I see nothing in La.R.S. 23:1021(7)(b) or in Partin, 810 So.2d 1118, that disqualifies a mental injury from being compensable simply because the stress from which it arose was not confined to a single event but was comprised of a series of incidents over an extended period of time. In fact, in Partin, 810 So.2d at 1126, the supreme court expressly rejected such an analysis, explaining that, while the court in Sparks had limited the compensability of mental/mental claims through the “accident” requirement, “[ujnder the new law [the current version of La.R.S. 23:1021(7)(b) ], it is not necessary to limit mental/mental claims through the accident requirement [of La.R.S. 23:1021(1)].” Instead, “[t]he new law provided in subsection 1021(7)(b) supplies its own limitation by disallowing compensation for mental injuries unless they result from stress that, by its nature, is sudden, unexpected, and extraordinary in the usual course of employment in that working environment.” Id. Importantly, the court instructed that, although a claimant must satisfy the requirement of La. R.S. 23:1031(A) that he has “receivefd] personal injury by accident arising out of and in |Bthe course of his employment,” still, “the limitation on claims should now be found in subsection 1021(7)(b).” Partin, 810 So.2d at 1126.

Thus, I would find that the WCJ committed an error of law in requiring Ms. Adams to prove that a single event caused her mental injury. Rather, as set forth in Partin, it is the nature of the stress, i.e., the sexual harassment, that is to be evaluated, which requirement “differs from the determination of whether an ‘event’ was unexpected or unforseen under the accident requirement of subsection 1021(1), which is made by viewing the event from the employee’s perspective.” Id. at 1125 (emphasis added).

In evaluating the nature of the stress in this case, it is clear that sexual harassment in the form of escalating comments; threats of job loss, rape, and arson; and nonconsensual, offensive touching creates stress that is certainly sudden, unexpected, and extraordinary in the usual course of employment for a utility hand. Unlike the demotion in Partin, the sexual harassment in this case was not merely unfair from Ms. Adams’s perspective. Thus, I would reverse the WCJ’s judgment and hold that Ms. Adams met the requirements of La. R.S. 23:1021(7)(b).

      . 01-1560 (La.3/11/02), 810 So.2d 1118.

      . See Id.

      . See Id.

      . Id.

      . La.R.S. 23:1021(7)(b).

      . Partin, 810 So.2d 1118.

      . First Nat’l Bank of Boston v. Beckwith Mach. Co., 94-2065, p. 8 (La.2/20/95), 650 So.2d 1148, 1153 (citing Dore v. Tugwell, 228 La. 807, 84 So.2d 199, 204 (1955)).

      . State v. Joshlin, 99-1004, p. 5 (La.1/19/00), 752 So.2d 834, 837 (citing Bailey v. United States, 516 U.S. 137, 145-46, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)).


author: JjGREMILLION, Judge.

text:
    Arn SMITH and Deidre Bell Smith v. CITY OF LAKE CHARLES POLICE DEPARTMENT, et al.
    No. 03-155.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      John Kevin Stockstill, Lafayette, LA, for Plaintiffs/Applicants, Arn Smith, Deidre Bell Smith.
    Jerry Joseph Falgoust, Dauzat, Fal-goust, Caviness & Bienvenu, L.L.P., Opel-ousas, LA, for Defendants/Respondents, City of Opelousas Police Department, Sgt. Donald Thompson.
    Christopher E. John, Asst. City Attorney, Charles, LA, for Defendants/Respondents, City of Lake Charles, Detective Billy Toten.
    Larry Allen Wallace, Jr., Lafayette, LA, for Defendants/Respondents, Hartford Insurance Company, City of Eunice Police Department, Sgt. Varden Guillory, Sr., Sgt. Richard Daigle.
    Court composed of ULYSSES GENE THIBODEAUX, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   JjGREMILLION, Judge.

The plaintiffs, Arn and Deidre Smith, seek supervisory writs on the trial court’s denial of their request for a jury trial against the City of Eunice’s liability insurer, Hartford Insurance Company, and its grant of a declinatory exception of improper venue in favor of the defendants, the City of Lake Charles and Detective Billy Toten. For the following reasons, the writ is granted in part and made peremptory and denied in part and the Smiths’ claims against Lake Charles and Toten is ordered transferred to the Fourteenth Judicial District Court.

FACTS

This matter stems from investigations arising from several scams to defraud elderly women of money in the towns of Southhaven, Mississippi, and Lake Charles, Eunice, and Opelousas, Louisiana. As a result of the investigations conducted by the various police departments, Arn Smith (Smith) was arrested by the Eunice and Opelousas Police Departments and was detained by the Southhaven Police Department. Smith and his wife then filed suit in St. Landry Parish against various defendants alleging false arrest, invasion of privacy, gross negligence, and /or outrageous, reckless, willful, or flagrant misconduct. The defendants named in the petition include those at issue here: the City of Eunice Police Department and Sergeants Varden Guillory, Sr. and Donald Thompson; and the City of Lake Charles Police Department and Detective Billy To-ten. In their petition, the Smiths requested that the matter be tried by a jury. In an amending petition, the Smiths added as defendant Eunice’s liability insurer, Hartford.

12At issue in this writ application are two rulings by the trial court. In the first, the trial court denied the Smiths’ request for a trial by jury against Hartford. Next, the trial court granted Lake Charles and To-ten’s declinatory exception of improper venue and held that all claims against them should be filed in Calcasieu Parish. The trial court granted the Smiths thirty days in which to re-file their lawsuit against Lake Charles and Toten in the Fourteenth Judicial District. It is from these two rulings that the Smiths sought supervisory writs from this court.

RIGHT TO JURY TRIAL

In their first assignment of error, the Smiths argue that the trial court erred by denying them their right to a jury trial against Hartford. We agree.

Louisiana Revised Statutes 13:5105(A) provides that, “No suit against a political subdivision of the state shall be tried by jury.” In this instance, the Smiths are requesting a trial by jury against Hartford, Eunice’s liability insurer, not against Eunice itself. In Jones v. City of Kenner, 338 So.2d 606 (La.1976), the supreme court held that the prohibition of a jury trial against a political subdivision of the state did not extend to the political subdivision’s liability insurer. In so holding, the supreme court stated: “Therefore, as in Champagne [v. American Southern Insurance Co., 295 So.2d 437 (La.1974)], we hold that the plaintiffs cannot be deprived of their jury trial against such non-governmental defendant because a governmental defendant is joined as a party, despite any identity or substantial similarity of the issues against both.” Id. at 607. That reasoning was recently applied with approval in Naquin v. Titan Indemnity Co., 00-1585 (La.2/21/01), 779 So.2d 704, in which the supreme court held that the ninety day service rule provided to a governmental entity by La.R.S. 13:5107(D) did not extend to the governmental entity’s insurer, a non-governmental entity. Thus, we find that the trial court erred in denying the Smiths their right to a jury trial against Hartford, even though it is the liability insurer of a political subdivision. The Smiths’ writ on this issue is granted and made peremptory.

IMPROPER VENUE

In their second assignment of error, the Smiths argue that the trial court erred in finding that Calcasieu Parish was the proper venue for their claims against Lake Charles and Toten. However, we agree with the trial court’s finding and affirm its ruling.

Louisiana Revised Statute 13:5104(B) provides:

All suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising our of the discharge of his official duties or -within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.

With regard to Lake Charles and Toten, the Smiths alleged in their petition that:

Upon information and belief, between the time period February 17, 1999 to October 19, 1999, the Defendants performed and/or participated in an investigation of Plaintiff, ARN SMITH. Plaintiff was investigated regarding his alleged role in numerous thefts and/or attempted thefts and/or schemes to defraud involving elderly women in South-haven, Mississippi, Lake Charles, Louisiana, Eunice, Louisiana and Opelousas, Louisiana.

In their amending petition, they alleged, “The CITY OF LAKE CHARLES POLICE DEPARTMENT’S AND DETECTIVE BILL TOTEN’s conduct enumerated in Paragraph VI and VII of Plaintiffs’ Petition For Damages and the investigations | ¿performed and/or participated in by them occurred in Calcasieu Parish.” Paragraphs “VI” and “VII” provide:

VI.
During the course of the investigations by Defendants, Defendants knew, or in the exercise of minimal diligence should have known, that the charges against Plaintiff were not well founded.
VII.
In addition, the Defendants failed to interview witnesses which would have eliminated Plaintiff as a suspect, failed to investigate the possibility that the Plaintiff was misidentified and/or obtained identification evidence that was so suggestive and improperly obtained as to render it highly unreliable.

The doctrine of ancillary jurisdiction was adopted, if not wholeheartedly, by the supreme court in Underwood v. Lane Memorial Hospital, 97-1997 (La.7/8/98), 714 So.2d 715. There, the court explained: “Ancillary venue applies when separate claims involving common or identical questions of fact share no common venue. The concept of ancillary venue allows such claims to be tried together for reasons of judicial economy and efficiency, even though venue is not proper technically for one claim or one part.” Id. at 719. The test in such instances is whether the incidents giving rise to the claims against the political subdivisions arose out of the same transaction or occurrence. Id.

In this instance, although the Smiths are asserting the same causes of action against the various defendants, we find that the claims are based on different factual circumstances, ie., the individual investigations conducted by each police department leading up to their arresVdetention of Smith. Although Lake Charles did not arrest or detain Smith as a result of its investigation, the Smiths admitted in their | spetition that the conduct complained of by them occurred in Calcasieu Parish, while all other complained of conduct occurred in St. Landry Parish. Since the Smiths’ claim against Lake Charles and Toten did not arise from the same transaction or occurrence as the other claims, we find that venue against them would be improper in St. Landry Parish, since all of the parties associated with this claim are located in Lake Charles, even the Smiths. Accordingly, we find that the trial court correctly granted Lake Charles and To-ten’s declinatory exception of improper venue and ordered that any action against them should be brought in the Fourteenth Judicial District in Calcasieu Parish. The Smiths’ claim against Lake Charles and Toten is ordered transferred to the Fourteenth Judicial District Court.

CONCLUSION

For the foregoing reasons, the writ is granted in part and made peremptory, finding that the trial court improperly denied the Smiths their right to a jury trial against Hartford Insurance Company. However, the writ is denied on the issue of whether the trial court correctly granted the declinatory exception of improper venue in favor of the City of Lake Charles Police Department and Detective Billy To-ten. The Smiths’ claim against these defendants is ordered transferred to the Fourteenth Judicial District Court. The costs of this writ are assessed half to the Smiths and half to the City of Eunice in the amount of $754.50 each.

WRIT GRANTED IN PART AND MADE PEREMPTORY; DENIED IN PART AND MATTER TRANSFERRED.

      . The remaining defendants are: the City of Southhaven Police Department; and the City of Opelousas Police Department and Sergeant Richard Daigle and Detective Don Hammons.


author: 11 GREMILLION. Judge.

text:
    Gregory E. WILLIAMS v. Pamela QUINN, et al.
    No. 03-630.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    Richard E. Lee, Pineville, LA, for Plain-tifi/Appellee, Gregory E. Williams.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellant, Pamela Quinn, State Farm Insurance Companies, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   11 GREMILLION. Judge.

The defendants, Pamela Quinn and her insurer, State Farm Mutual Automobile Insurance Company, appeal the judgment of the trial court awarding damages in the amount of $24,370.38 to the plaintiff, Gregory Williams. For the following reasons, we reduce the amount awarded to Williams to $17,305.90.

FACTS

This matter arose from a automobile accident in Rapides Parish, on October 24, 2000. Williams filed the instant suit after his vehicle was struck from behind by the vehicle being driven by Quinn. Suit was filed in Pineville City Court, which has a jurisdictional limit of $35,000. Quinn and State Farm filed an answer and reconven-tional demand. Following a trial on the merits, the city court rendered judgment finding Williams twenty percent at fault and Quinn eighty percent at fault. The city court further found that Williams was uninsured at the time of the accident, thus, Quinn and State Farm were entitled to a credit of $10,000 pursuant to La.R.S. 32:866. Damages were awarded to Williams in the amount of $40,000. Subtracted from this amount were his twenty percent fault, the credit of $10,000, and $694.10 (twenty percent of the property damage awarded to Quinn for damage to her vehicle), for a total of $24,370.28. Judgment was rendered in this matter on February 13, 2003. This appeal by Quinn and State Farm followed.

ISSUES

On appeal, Quinn and State Farm argue that the city court erred in rendering a judgment in an amount in excess of its jurisdictional limit.

I JURISDICTIONAL LIMIT

The jurisdictional limit of the Pineville City Court is $35,000. La.Code Civ.P. art. 4843(1). Louisiana Code Civil Procedure Article 4841(A) provides that the subject matter jurisdiction of city courts is “limited by the amount in dispute and by the nature of the proceedings.” Furthermore, the amount in dispute is “determined by the amount demanded, including damages pursuant to Civil Code Articles 2315.3 and 2315.4, or value asserted in good faith by the plaintiff, but does not include interest, court costs, attorney fees, or penalties, whether provided by agreement or by law.” La.Code Civ.P. art. 4841(B). Louisiana Code Civil Procedure Article 5 provides, ‘When a plaintiff reduces his claim on a single cause of action to bring it within the jurisdiction of a court and judgment is rendered thereon, he remits the portion of his claim for which he did not pray for judgment, and is precluded thereafter from demanding it judicially.”

In Bullock v. Graham, 96-0711 (La.11/1/96), 681 So.2d 1248, overruled on other grounds, Benoit v. Allstate Ins. Co., 00-0424 (La.11/28/00), 773 So.2d 702, the supreme court examined the methods used by various courts of appeal in cases dealing with jurisdictional limits and stipulations limiting a plaintiffs recovery to a certain amount. After reviewing those methods, the supreme court held that an amount awarded in such cases could “not exceed that maximum recoverable amount, and the plaintiffs percentage of fault was to be deducted from the maximum recoverable amount.” Landry v. Allstate Ins. Co., 99-1971 (La.App. 1 Cir. 9/22/00), 768 So.2d 256. The maximum recoverable amount is the jurisdictional limit or the amount stipulated by the plaintiff as being that amount.

| sIn this instance, the maximum amount recoverable by Williams is $35,000. Thus, the city court erred in awarding him $40,000 and then deducting his twenty-percent fault, the $10,000, and the $694.10 from that amount. Since Williams waived his recovery of more than $35,000, the most the city court could have awarded him initially was that amount. Therefore, we amend the city court judgment to award Williams $35,000, less his twenty-percent fault, the $10,000, and $694.10, for a total award of $17,305.90.

In his brief, Williams requests that we deduct the $10,000 from the $35,000, before reducing that amount by twenty percent. Williams did not answer Quinn’s appeal. An answer by the appellee is necessary when he “desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant.” La.Code Civ.P. art. 2133. Since Williams has failed to answer Quinn’s appeal, we decline to address his request.

CONCLUSION

For the foregoing reasons, the judgment of the city court is amended to award Williams an initial $35,000, which is then reduced by twenty-percent fault, $10,000, and $694.10, for a total of $17,305.90. The costs of this appeal are assessed to the plaintiff-appellant, Gregory Williams.

AFFIRMED AS AMENDED.