author: DECUIR, Judge. COOKS, J., COOKS, Judge. COOKS, J.,

text:
    Patrick GLEASON v. LAFAYETTE GENERAL MEDICAL CENTER.
    No. 12-652.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2012.
    Opinion on Rehearing July 3, 2013.
    Graham N. Smith, Onebane Law Firm (APC), Lafayette, LA, for Defendant as Appellant and Appellee, Lafayette General Medical Center.

      Richard E. Smith, Attorney at Law, Lafayette, LA, for Plaintiff as Appellant and Appellee, Patrick Gleason.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   DECUIR, Judge.

_JjIn this workers’ compensation case, both claimant and defendant appeal adverse judgments of the workers’ compensation judge.

FACTS

Patrick Gleason injured his shoulder on July 23, 2007, while working as an executive chef for Lafayette General Medical Center (LGMC). He underwent two arthroscopic surgeries for that injury. The first surgery was on May 8, 2008, and the second on January 21, 2009. He was paid temporary total disability benefits (TTD) during his recovery from both surgeries. Gleason returned to work on March 9, 2009. The only restriction placed on Gleason was that he not lift more than forty pounds.

Gleason’s executive chef position did not require lifting beyond his restriction, so he returned to work without the need for a job modification. Gleason worked without complaint until May 13, 2010, when he voluntarily submitted a resignation letter indicating that he would be leaving on May 27, 2010, to pursue career objectives.

Unknown to LGMC, Gleason had conditionally accepted a position as executive chef at a local restaurant pending a drug screen. Gleason did not pass the drug screen due to the presence of pain medication in his system. Gleason returned to LGMC and attempted to rescind his resignation on May 18, 2010. LGMC declined his offer to be reemployed and made his resignation effective immediately.

Three weeks later, on June 8, 2010, Gleason’s treating orthopedic surgeon, Dr. Michael Duval, declared him unable to work pending diagnostic testing. LGMC declined to pay benefits because Gleason was no longer their employee.

| ^Gleason filed a claim for TTD benefits which the trial court held to be prescribed. Gleason amended his claim seeking supplemental earnings benefits (SEBs), penalties, and attorney fees. The trial court granted SEBs from June 28, 2010, but denied the request for penalties and attorney fees. Both parties appealed, and Gleason answered seeking attorney fees on appeal.

TEMPORARY TOTAL DISABILITY

Gleason contends the workers’ compensation judge erred in finding that his claim for TTD benefits had prescribed.

In order to prove entitlement to TTD benefits or to permanent total disability benefits, a claimant must demonstrate by clear and convincing evidence that he is physically unable to engage in any employment, including working while in any pain. La.R.S. 23:1221(l)(c) and (2)(c). Disability is a question of fact. Jones v. Universal Fabricators, 99-1370 (La.App. 3 Cir. 2/9/00), 758 So.2d 856, writ denied, 00-742 (La.5/12/00), 762 So.2d 13.

Louisiana Revised Statutes 23:1209 provides in pertinent part:

§ 1209. Prescription; timeliness of filing; dismissal for want of prosecution
A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

|aThis “is the only prescriptive period setting forth the amount of time a worker has to file a claim for benefits.” Dufrene v. Video Co-Op, 02-1147, p. 10 (La.4/9/03), 843 So.2d 1066, 1073.

Gleason last received benefits on March 9, 2009. Accordingly, prescription tolled on his claim on March 10, 2010. At that time, he was employed by LGMC and had not resigned or been declared unable to work. Gleason’s claim for TTD benefits is prescribed on its face. The cases cited by Gleason seeking to extend the prescriptive period under the ‘developing injury rule’ are inapplicable. Accordingly, we find no error in the workers’ compensation judge’s failure to award of TTD benefits.

SUPPLEMENTAL EARNINGS BENEFITS

LGMC alleges the workers’ compensation judge erred in awarding Gleason SEBs from June 8, 2010. We agree.

An employee is entitled to receive 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.R.S. 23:1221(3)(a). 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. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733.

Gleason voluntarily resigned his position with LGMC to seek other employment. At the time, he had a job earning his full wage and had been conditionally accepted for another position. Gleason’s disability status did not change until three weeks after he had resigned from LGMC. While workers’ compensation laws are to be liberally construed in favor of compensation, we cannot say that the social contract extends to providing compensation for employees who voluntarily leave and later become disabled. In this case, Gleason |4has failed to establish that he is entitled to SEBs. The workers’ compensation judge’s award of SEBs is reversed.

PENALTIES AND ATTORNEY FEES

Gleason contends the workers’ compensation judge erred in failing to award penalties and attorney fees and asks this court to award them for prosecution of this appeal. The record before us supports the workers’ compensation judge’s decision, and we decline to make an award for work on this unsuccessful appeal.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed insofar as it finds Gleason’s claim for TTD benefits prescribed and declines to award penalties and attorney fees. In all other respects, particularly insofar as it awards SEBs, the judgment is reversed. All costs of these proceedings are taxed to claimant, Patrick Gleason.

AFFIRMED IN PART AND REVERSED IN PART.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissents.

kThe majority seems stuck on the notion that if an employee voluntarily leaves a job paying him better than 90% of his pre-employment wages, and later becomes disabled then he is out of luck. Their conclusion is based on some sort of “timing” requirement that I cannot find in the workers’ compensation statutes. The only time that is relevant is whether the SEB claim was filed within 3 years from the date of the last payment of benefit, which occurred in this case on March 9, 2009. No one disputes that the SEB claim was timely. Resignation from a job is not the relevant issue here; and, resignation alone can never be used to deny a claimant benefits. It is also irrelevant that he worked for 14 months and earned more than 90% of his pre-injury wages. The only time “resignation,” which the courts often equate with the term retirement, becomes significant is when an employer is asserting that the employee has permanently left the workforce; and, thus, the employer is relying on R.S. 23:1221(3)(d)(iii) to escape payment of the full 520 weeks of SEB as opposed to only 104 weeks.

A worker is not bound to remain with a particular employer, as Lafayette General implicitly urges here. He is free to leave a job and seek another. If later it is medically determined that he in fact is not able to earn 90% of his pre-injury employment wages in the open employment market he is entitled to SEB if he is not actually working. See Breaux v. City of New Orleans, 97-273 (La.App. 4 Cir. 8/27/97), 699 So.2d 482, writ denied 97-2491 (La.12/19/97), 706 So.2d 454 and the cases cited therein.

In Kinchen v. City of Shreveport, 46,490 (La.App. 2 Cir. 9/21/11), 73 So.3d 1011, writ granted 11-2262 (La.12/12/11), 76 So.3d 1161, a captain with the Shreveport Police Department for 27 years injured her left shoulder on the job in October 2006. She received TTD until she returned to work with restrictions on October 22, 2007. On December 17, 2007, the officer wrote a letter of “retirement” stating: “I am writing this to advise you that, effective January 1, 2008, I will be retiring from the Shreveport Police Department. I have enjoyed my 27 years working for the department but feel it is time for me to pursue my personal interest.” At the time of her retirement she had not undergone testing to determine “any disability” rating. After leaving the department, she worked approximately two months for another employer but she retened to the doctor and on May 19-20, 2008 she underwent a FCE. She was assigned a disability rating. On September 29, 2008 she filed a disputed claim seeking SEB. The city’s affirmative defense was the officer took regular tenure retirement; and, as such, had voluntarily withdrawn from the workforce and at the time of her voluntary retirement there was available work for her “that satisfied any putative workplace restriction” imposed by her treating physicians. In other words, she could earn 90% of her pre-injury wages and she had a job with the police department. The city maintained she was not entitled to SEB because she was working and voluntarily quit.

The facts of this case are similar to Kinchen. Here Mr. Gleason injured his right shoulder on July 23, 2007. He continued to work with restrictions until he underwent surgery on May 8, 2008. He was paid TTD. He returned to work on June 4, 2008. He underwent a second surgery January 21, 2009. He was paid |STTD until he returned to work March 2009 with a 40-lb lift restriction. On May 13, 2010 Gleason submitted a letter of resignation stating he desired “to return to the restaurant industry for growth and experience” and “to pursue career objectives.” The employer’s affirmative defense in this case is that at the time Mr. Gleason voluntarily resigned there was available work for him which satisfied any workplace restriction then imposed by his treating physician. He voluntarily quit to go to another job. The hospital asserts Gleason is not entitled to SEB because his disability occurred three weeks after his last day as its employee. In other words, he could earn 90% of his pre-injury wages at the time he quit the job.

It is also worth noting that Kinchen’s letter said she was leaving to pursue “personal interest,” at trial she testified that it was because she “did not feel she could perform the duties as a police officer.” She testified: “I knew that the basic requirements for the job I could not physically do and as a result this was taxing on me emotionally.” She further testified she was restricted from lifting beyond a certain weight and she “was always in fear [of getting] into a confrontation.” She worked for a telemarketing company for two months after leaving the department, and, at the time of trial, she was looking for a job.

Here, Mr. Gleason’s resignation letter expressed his intent to pursue “career objectives” and for growth and experience. The judge specifically notes, in her oral ruling, Gleason testified “he wanted to find a job that was not as intense on his shoulder and this job I may have found may have been better for me.” He also testified: “The job at the hospital got extremely hard to do.” Mr. Gleason had not worked since leaving the hospital job. The trial judge obviously accepted these facts as credible.

Both employees quit the job to get another job; and, both returned to the doctor after leaving a job where they were earning more than 90% of their prejmjury4 wages. Kinchen actually got another job for two months; Gleason did not get what he sought because he was taking prescription medication for pain he continued to experience from his work-related shoulder injury. Both employees’ full disability status was not determined until after they stopped working for their employer. The appellate court found Kinchen was entitled to SEB from the police department. The majority here says Gleason should not get a dime.

The majority opinion represents an embarrassing departure from this court’s usual paradigm of jurisprudential excellence in workers’ compensation law. In denying rightful Supplemental Earnings Benefits to the claimant, the majority articulates a rule that “[w]hile workers’ compensation laws are to be liberally construed in favor of compensation, we cannot say that the social contract extends to providing compensation for employees who voluntarily leave and later become disabled.” In enunciating this new “rule,” the majority fails to cite any authority whatsoever, whether statutory, codal, or jurisprudential. It establishes a new legislative rule by judicial fiat.

There is no dispute that Gleason is now disabled, the disability is related to his work injury, and he cannot earn 90% of his pre-injury wages. The doctor testified to that fact, the judge found it to be so, the employer does not dispute it, and the majority accepts it as proven. The thing that rubs the majority is the fact that he was working for over a year, and resigned his job to get another. They may not like what he did, or think he was rather shortsighted for doing so; but we cannot deny him SEB just because he was earning more than 90% of his pre-injury ] ¡¡wages when he left. The Louisiana Supreme Court in L.S. Allen v. The City of Shreveport, 92-874 (La.5/24/93), 618 So.2d 386, found an employee was still entitled to SEB even though he could return to his former employment which was no longer available to him as is the case here. The court emphasized: “it is irrelevant whether plaintiff is physically able to perform his former sedentary job that is no longer available. The relevant question is whether plaintiff is partially disabled and whether he is unable to earn ninety percent of the wages he was earning prior to the injury.” Id. at 388-89.

In other words, the court explained:

Ironically, plaintiff was physically able to return to his former (but no longer existing) position, but was physically unable to perform the duties of other physically demanding jobs of equal or even lesser pay. But this strange combination of circumstances does not alter the fact that plaintiff on this record was injured on a job of long standing that paid him $12.62 per hour, is partially disabled because of his employment injury, is presently unable at least partially because of the disability, to earn 90% of the wages he was earning at the time of his injury. He is therefore entitled to supplemental earnings benefits.

Id. at 389.

I cannot emphasize better than the Supreme Court that it is irrelevant when Gleason left the hospital job or even that he left a job he could perform paying 90% of his pre-injury wages. The important fact here is that presently he cannot earn 90% of his pre-injury wages, his claim for SEB was timely filed and the employer failed to rebut this evidence at trial. The majority opinion damages the |fisalutary underpinnings of workers’ compensation law with this unsupported aberrant “rule.” Respectfully, I cannot participate in such a deviation from this court’s established standards and the settled law.

ON REHEARING

Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, SHANNON J. GREMILLION, PHYLLIS M. KEATY and JOHN E. CONERY.

COOKS, Judge.

J^FACTS

Patrick Gleason (Gleason) injured his right shoulder on July 28, 2007, while employed by Lafayette General Medical Center (LGMC). The parties stipulated that LGMC was self-insured pursuant to the Workers’ Compensation Act at the time of Gleason’s injury. Gleason continued to work with restrictions until he underwent surgery on May 8, 2008. He returned to work on June 4, 2008. Gleason received Temporary Total Disability (TTD) benefits for that time period. On January 21, 2009, Gleason underwent a second arthroscopic surgery on his right shoulder. He was again paid TTD benefits until he returned to work on March 9, 2009, with a forty pound lift restriction ordered by Dr. Michael Duval (Dr. Duval), his treating orthopedic surgeon. Gleason continued to work under that restriction and continued under Dr. Duval’s care. On May 13, 2010, Gleason submitted a letter of resignation to LGMC giving advance notice of his departure stating he desired “to return to the restaurant industry for growth and experience” and “to pursue career objectives.” He also indicated his last day of work with LGMC would be May 27, 2010. Gleason had applied for a job as an executive chef in a restaurant with a new employer hoping to secure work better suited to his physical limitations which resulted from his on-the-job injury at LGMC. At the time Gleason submitted his letter of resignation to LGMC he had accepted the new job conditioned on passing a drug screen. Because the drug screen indicated Gleason was taking prescription medications which were prescribed for his pain by his treating physician, the new employer refused to hire him. On May 18, 2010, nine days before his intended date of departure from LGMC’s employ, Gleason ^attempted to rescind his letter of resignation with LGMC but they refused to do so, and instead, made his resignation effective immediately.

On June 8, 2010, Dr. Duval determined Gleason was unable to work pending further diagnostic testing to determine his current condition and future course of treatment. LGMC refused to pay Gleason any further benefits, including the medical diagnostic testing requested by Dr. Duval, solely on the basis that he was no longer their employee. The parties stipulated that Gleason has not been released in any capacity to return to work by any physician since June 8, 2010.

Gleason first filed a claim for TTD benefits which the Workers’ Compensation Judge (WCJ) found was prescribed. Before trial, the parties reached a stipulated agreement resolving “the medical claims presented in this Dispute” acknowledging that such claims were no longer before the court. Gleason amended his claim, seeking Supplemental Earnings Benefits (SEB) plus penalties and attorney fees. The WCJ granted Gleason SEB with a zero base from June 28, 2010, but denied his request for attorney fees and penalties. Both parties appealed. Gleason seeks additional attorney fees on appeal and on rehearing.

This case was originally heard before a three judge panel of this court in Patrick Gleason v. Lafayette General Medical Center, 12-652, (La.App. 3 Cir. 12/12/12), 118 So.3d 431, which affirmed the trial court’s finding that Gleason was not entitled to TTD benefits because that claim was prescribed. On application for rehearing this part of the court’s ruling was not raised as an issue for consideration. However, Gleason, on rehearing, takes issue with this court’s ruling reversing the WCJ’s award of SEB and affirming the WCJ’s denial of attorney fees and penalties. For the reasons stated below we now affirm the WCJ’s 1¡¡award of SEB with a zero base commencing June 8, 2010, and award attorney fees on appeal and assess all costs of this appeal against LGMC.

LEGAL ANALYSIS

The employer’s affirmative defense in this case is that at the time Gleason voluntarily resigned from LGMC there was available work for him which satisfied any workplace restriction then imposed by his treating physician. LGMC offered no proof of this assertion but instead argued that Gleason is not entitled to SEB because his disability (which the parties stipulated resulted from an on-the-job injury while employed by LGMC) occurred three weeks after his last day as its employee. In other words, LGMC asserts Gleason could earn 90% of his pre-injury wages at the time he voluntarily quit the job because he was earning that when he left their employ. LGMC argues that if an employee voluntarily leaves a job paying him better than 90% of his pre-employment wages, and later becomes disabled, he is out of luck. Their conclusion is based on some sort of “timing” requirement that this court cannot find in Louisiana’s workers’ compensation statutes. The only relevant time issue in this case is whether the SEB claim was filed within three years from the date of the last payment of benefits, which occurred in this case on March 9, 2009. No one disputes that the SEB claim was filed timely. Resignation from a job is not the relevant issue here; and, resignation alone can never be used to deny a claimant benefits. It is also irrelevant that Gleason worked for fourteen months and earned more than 90% of his pre-injury wages. The only time “resignation,” which the courts often equate with the term retirement, becomes significant is when an employer asserts the employee has |4permanently left the workforce; and thus, the employer is relying on R.S. 23:1221(3)(d)(iii) to escape payment of the full 520 weeks of SEB as opposed to only 104 weeks.

A worker is not bound to remain with a particular employer, as LGMC urges here. He is free to leave a job and seek another. If later it is medically determined that he in fact is not able to earn 90% of his pre-injury employment wages in the open employment market he is entitled to SEB if he is not actually working. See Breaux v. City of New Orleans, 97-273 (La.App. 4 Cir. 8/27/97), 699 So.2d 482, writ denied, 97-2491 (La.12/19/97), 706 So.2d 454, and the cases cited therein. Gleason provided proof of such medical determination, and LGMC failed to offer any contradictory evidence. In fact, LGMC stipulated that “[o]n June 8, 2010, Dr. Michael Duval issued a ‘Work Status’ saying that PATRICK GLEASON was unable to work ‘pending diagnostic testing’” and stipulated that “PATRICK GLEASON has not been released by any physician in any capacity to return to work since June 8, 2010.” Gleason further showed he was unemployed and unable to find work suited to his job-related disability, a fact also uncontroverted by LGMC.

In Kinchen v. City of Shreveport, 46,490 (La.App. 2 Cir. 9/21/11), 73 So.3d 1011, writ granted, 11-2262 (La.12/2/11), 76 So.3d 1161, a captain with the Shreveport Police Department for twenty-seven years injured her left shoulder on the job in October 2006. She received TTD benefits until she returned to work with restrictions on October 22, 2007. On December 17, 2007, the officer wrote a letter of “retirement” stating: “I am writing this to advise you that, effective January 1, 2008, I will be retiring from the Shreveport Police Department. I have enjoyed my 27 years working for the department but feel it is time for me to pursue |fvmy personal interest.” At the time of her retirement she had not undergone testing to determine any disability rating. After leaving the department, she worked approximately two months for another employer but she returned to the doctor, and on May 19-20, 2008, she underwent a FCE. She was assigned a disability rating. On September 29, 2008, she filed a disputed claim seeking SEB. The city’s affirmative defense was the officer took regular tenure retirement and, as such, had voluntarily withdrawn from the workforce. The city also argued that at the time of her voluntary retirement there was available work for her “that satisfied any putative workplace restriction” imposed by her treating physicians. In other words, she could earn 90% of her pre-injury wages and she had a job with the police department. The city maintained she was not entitled to SEB because she was working and voluntarily quit.

Kinchen’s letter indicated she was leaving to pursue “personal interest.” At trial she testified that it was because she “did not feel she could perform the duties as a police officer.” She testified: “I knew that the basic requirements for the job I could not physically do and as a result this was taxing on me emotionally.” She further testified she was restricted from lifting beyond a certain weight, and she “was always in fear [of getting] into a confrontation.” She worked for a telemarketing company for two months after leaving the department, and, at the time of trial, she was looking for a job.

The facts of this case are similar to Kinchen. In the present case, Gleason’s resignation letter expressed his intent to pursue “career objectives” and for growth and experience. The judge specifically notes, in her oral ruling, that Gleason testified “[he] wanted to find a job that was not as intense on his shoulder and this job [he] may have found may have been better for [him].” He also testified: “The |Rjob at the hospital got extremely hard to do.” Gleason had not worked since leaving the hospital job. The trial judge obviously accepted these facts as credible.

Both Kinchen and Gleason quit their job with the intent to find another job; and, both returned to the doctor after leaving a job where they were earning more than 90% of their pre-injury wages. Kinchen actually got another job for two months; Gleason did not get what he sought because he was taking prescription medication for pain he continued to experience from his work-related shoulder injury. Both employees’ full disability status was not determined until after they stopped working for their employer. The appellate court found Kinchen was entitled to SEB from the police department. We likewise find Gleason is entitled to SEB from LGMC.

There is no dispute that Gleason is now disabled, the disability is related to his work injury, and he cannot earn 90% of his pre-injury wages. The doctor testified to that fact; the judge found it to be so; and it is not disputed by the employer. The thing that apparently disturbs LGMC is the fact that Gleason was working for over a year, and voluntarily resigned his job at LGMC to get another, less physically demanding job in the restaurant industry. But Gleason cannot be denied SEB just because he was earning more than 90% of his pre-injury wages when he left LGMC for a job better suited to his physical limitations. The Louisiana Supreme Court in L.S. Allen v. The City of Shreveport, 92-874 (La.5/24/93), 618 So.2d 386, found an employee was still entitled to SEB even though he could return to his former employment which was no longer available to him, as is the case here. The court emphasized: “it is irrelevant whether plaintiff is physically able to perform his former sedentary job that is no longer available. The relevant question is whether plaintiff is partially disabled and whether he is 17unable to earn ninety percent of the wages he was earning prior to the injury.” Id. at 388-89.

In other words, the court explained:

Ironically, plaintiff was physically able to return to his former (but no longer existing) position, but was physically unable to perform the duties of other physically demanding jobs of equal or even lesser pay. But this strange combination of circumstances does not alter the fact that plaintiff on this record was injured on a job of long standing that paid him $12.62 per hour, is partially disabled because of his employment injury, is presently unable at least partially because of the disability, to earn 90% of the wages he was earning at the time of his injury. He is therefore entitled to supplemental earnings benefits.

Id. at 389 (emphasis added).

Likewise, in Brown v. Offshore Energy, 47,392 (La.App. 2 Cir. 8/8/12), 104 So.3d 494, the employee, Leroy Brown, was awarded SEB after the employer fired him, he got another job, and received unemployment benefits. He returned to the doctor and underwent a FCE long after his injury. His disability status was then upgraded. The court found he could not earn 90% of his pre-injury wages. Clearly, even when an employee actually leaves and gets another job, if his prior injury with the first employer ultimately renders him disabled while working for a second employer, the first employer will still have to pay SEB. See Silverman v. Weatherford International, 46,402 and 46,403 (La.App. 2 Cir. 10/19/11), 83 So.3d 11, writ denied, 12-76 (La.3/23/12), 85 So.3d 89.

We cannot emphasize better than the supreme court that it is irrelevant when Gleason left the hospital job or even that he left a job he could perform paying 90% of his pre-injury wages. The important fact here is that presently he cannot earn 90% of his pre-injury wages, his claim for SEB was timely filed, and the employer failed to rebut this evidence at trial. We therefore affirm the trial court’s | «ruling awarding Gleason SEB with no earning capacity. We also find Gleason is entitled to reasonable attorney fees for this appeal and rehearing.

It is therefore ordered that Defendant Lafayette General Medical Center pay Plaintiff, Patrick Gleason’s, reasonable attorney fees on appeal in the amount of $3,000.00.

All costs of this appeal are assessed against LGMC.

AFFIRMED AND JUDGMENT RENDERED.

COOKS, J., concurs and assigns written reasons.

GREMILLION, J., dissents for the reasons set forth in the original opinion of this court written by Judge DECUIR and dated December 12, 2012.

GENOVESE, J., dissents for the reasons set forth in the original opinion of this court by Judge OSWALD A. DECUIR dated December 12, 2012.

COOKS, J.,

concurs.

I write separately to express that the majority opinion grants Mr. Gleason at least a portion of the relief he is entitled to in accord with Louisiana’s Workers’ Compensation Law. I believe Mr. Gleason is also entitled to full recovery of his attorney fees at the trial level. Additionally, I believe that no valid basis in law or fact existed to justify Defendant’s willful failure to pay benefits as required by the Act. Louisiana Revised Statutes 23:1201(F) provides that an employer or workers’ compensation insurer is subject to penalties and attorney fees if it denies benefits without reasonably controverting the claim or if its failure to pay benefits is not a result of conditions over which it has no control. LGMC denied benefits to Gleason, asserting that because Gleason voluntarily resigned his job and was earning full pay before doing so he was not entitled to any further benefits. This rationale has no basis in workers’ compensation law. Claimant’s inability to work in this case is the result of him experiencing substantial pain, a fact well known to LGMC. We have repeatedly held:

TTD benefits are proper when the claimant is unable to engage in any self-employment or occupation for wages. Once an injured worker reaches maximum medical improvement and is able to return to work, even in pain, then he is no longer eligible for TTD benefits, but is relegated [entitled] to SEB benefits if he is unable to earn 90% of his pre-accident wages.

Vermilion Parish Police Jury v. Williams, 02-12, p. 5 (La.App. 3 Cir. 7/3/02), 824 So.2d 466, 470 (citing Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir. 12/11/96), 690 So.2d 792). See also Daenen v. The Cajun Landing Rest., 04-1193 (La.App. 3 Cir. 4/6/05), 899 So.2d 125, and Broussard v. Lafayette Parish Sch. Bd., 05-575 (La.App. 3 Cir. 4/5/06), 926 So.2d 713, writ denied 06-1044 (La.6/23/06), 930 So.2d 983. LGMC’s reason for denying benefits has no basis in the law or jurisprudence and it should not be excused. See id. See also Lee v. Kenyan Enterprises, 41,308 (La.App. 2 Cir. 8/23/06), 938 So.2d 1216, relying on our holding in Foster, 690 So.2d 792.

LGMC stipulated it was well aware that Gleason’s physician declared him unable to work pending further diagnostic testing for which it refused to pay. Although LGMC settled the medical claim in this case on the eve of the hearing, its failure to pay medicals has delayed full assessment of Gleason’s future ability to perform work of any kind and he has not been offered any rehabilitation services. See Kaufman v. Fishery Products of La., Inc., 03-523 (La.App. 4 Cir. 10/22/03), 866 So.2d 256, and cases cited therein. LGMC does not, nor can it, assert that its reasons for failing to pay benefits was the result of conditions over which it had no control. I believe Gleason is entitled to penalties and attorney fees below and on appeal for LGMC’s willful refusal to timely pay benefits.

      . The majority opinion recites that "Gleason did not pass the drug screen due to the presence of pain medication in his system," leaving dangling the hidden thought that he was illegally taking drugs. It is unfortunate that this thought has been planted on the public pages without any attempt by the majority to acknowledge the record indisputably establishes the drugs Mr. Gleason was taking were prescribed and directly connected to the pain he continued to endure as a result of his work injury.

      . In Brown v. Offshore Energy, 47,392 (La.App. 2 Cir. 8/8/12), 104 So.3d 494, the employee Leroy Brown was awarded SEB after the employer fired him, he got another job, and unemployment benefits. He returned to the doctor and underwent a FCE long after his injury. His disability status was upgraded. The court found he could not earn 90% of his pre-injury wages. Even when an employee actually leaves and gets another job, if his prior injury with the first employer ultimately renders him disabled while working for a second employer, the first employer will still have to pay SEB. See Silverman v. Weatherford International, 46,402 and 46,403 (La.App. 2 Cir. 10/19/11), 83 So.3d 11, writ denied 12-76 (La.3/23/12), 85 So.3d 89.

      . The majority did not reach the employer’s third reason for its assignment of error asserting Gleason allegedly is not eligible to receive SEB because “Gleason has been temporarily totally disabled since June 8, 2010 and remains so” making him eligible for TTD only, which the trial court ruled has prescribed. Claimant’s inability to work in this case is the result of him experiencing substantial pain. His treating physician indicated he cannot work at this time because of pain and the need to take pain medications. Defendant neither offered nor otherwise established that a job is presently available and claimant can perform the work earning 90% of his pre-injury wages. Absent this proof, the WCJ correctly awarded SEB at a zero base.
      Although Defendant settled the medical claim in this case prior to the hearing, its failure to pay medical has delayed full assessment of Plaintiff’s future ability to perform work of any kind and he has not been offered any rehabilitation services. See Kaufman v. Fishery Products of La., Inc., 03-523 (La.App. 4 Cir. 10/22/03), 866 So.2d 256, and cases cited therein.

      . The parties entered a joint stipulation stating in pertinent part "that Patrick Gleason would not be entitled to Supplemental Earnings Benefits (SEB) at any time before June 8, 2010.”


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    Lester ZEIGLER, Individually and Inspeq Services, L.L.C. v. The HOUSING AUTHORITY OF NEW ORLEANS (HANO), Gilmore Kean, L.L.C., Edgemere Consulting Corporation, Mir*Fox & Rodriguez, P.C. (MFR), and Dwayne Muhammad in his Official Capacity with HANO.
    No. 2012-CA-1168.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.
    Rehearing Denied June 12, 2013.

      Donald F. deBoisblanc, Donald Francis deBoisblanc, Jr., Attorneys at Law, Stephen B. Murray, Jr., John Alden Meade, Murray Law Firm, New Orleans, LA, for Plaintiff/Appellant.
    Edward W. Trapolin, Gustave A. Frit-chie, III, John D. Garrett, Irwin Fritchie Urquhart & Moore, LLC., Allen C. Miller, Brandon E. Davis, Phelps Dunbar LLP, New Orleans, LA, Robert J. David, Jr., Alyse S. Richard, The Harding Center, Lafayette, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

| , While this appeal stems from allegations of double-crossing, deception, and defamation, our opinion focuses on the discussion of prescription, peremption, and no cause and/or no right of action. According to the plaintiff, this tale of intrigue began with a conspiracy that resulted in defamatory statements being made by defendants, the Housing Authority of New Orleans (HANO), through its agent Dwayne Muhammad, and Mir*Fox & Rodriguez, P.C. (MFR), through its agents Everett Blaylock and Rochelle Jones. These statements concerned business dealings between Inspeq Services, LLC, the plaintiffs inspection company, and defendant, HANO, and were purportedly republished by Gilmore Kean, LLC, and Edgemere Consulting Corporation, in an operational assessment of HANO. The plaintiff, Lester Zeigler, individually and on behalf of Inspeq, filed suit for defamation and later added additional claims and defendants. He now appeals the trial court’s judgment granting the defendants’ peremptory exceptions and dismissing the plaintiffs entire petition with prejudice. We affirm in part, reverse in part and remand for further proceedings.

i statement of the case and PROCEDURAL HISTORY

The backdrop of this story involves the administration and operation of two housing assistance programs within HANO: the Housing Choice Voucher Program, also known as “Section 8” housing, and the Displaced Housing Assistance Program, which is a program to provide temporary housing relief to evacuees and victims of natural disasters. Both programs required housing inspections to insure that the respective property met the minimum requirements under the program.

In his recast petition, the plaintiff essentially claims that the defendants unscrupulously schemed to insert MFR into the public housing inspection business and defamed him in the process. The intricate, and sometimes tedious, recitation of the facts that led to the ruination of the plaintiffs business is set forth below.

In August of 2007, Inspeq was awarded a low-bid contract with HANO to inspect housing units under the Voucher Program. Shortly after Inspeq received this contract, Dwayne Muhammad was appointed as the Administrator, and was later promoted to the Chief Operation Officer of the Voucher Program. After two extensions, the contract expired by its terms on November 8, 2009.

Meanwhile, the Harris County Housing Authority was appointed by HUD to manage the Displaced Housing Program in New Orleans. In June of 2008, the Harris Housing Authority hired MFR, a Texas public accounting firm, to assist in performing accounting functions. When Hurricane Ike made landfall in Texas, the | (¡Harris Housing Authority was forced to cease operations in New Orleans. As a result, HANO issued an emergency no bid contract to MFR to perform accounting and administration services for the Displaced Housing Program. MFR issued a sub-contract to Inspeq to perform the required inspections as it had no experience in this field, and Inspeq had the only local certified inspectors. Both MFR’s emergency contract and Inspeq’s sub-contract relative to the Disaster Housing Program were set to expire on August 31, 2009.

Prior to the expiration of its contract with HANO, MFR hired Rochelle Jones. Unbeknownst to Inspeq, Jones was married to Muhammad.

At this point, the plaintiff alleges the following factual scenario in his pleadings. HANO, MFR, Jones, and Muhammad became involved in an elaborate scheme. Their goal was to arrange for MFR to take control of the Voucher Program and eventually perform the inspections, driving In-speq out of business with HANO. In July of 2009, Muhammad also submitted false reports regarding Inspeq and internal employees’ job performances to investigators with the United States Department of Housing and Urban Development (HUD) in order to justify the immediate need for MFR’s emergency no-bid takeover of the Voucher Program. In July and August of 2009, Muhammad began to delay payments of Inspeq’s invoices to create pressure and cause dissent among Inspeq’s employees. Just before Inspeq’s contract with HANO was set to expire on August 3, 2009, Muhammad issued a request for proposals. Suspecting that Muhammad intended to disclose his bid information to MFR, In-speq did not respond to the request and |4Muhammad withdrew the request. Consequently, MFR was awarded a no-bid contract to oversee the Voucher Program. Sometime in August of 2009, the plaintiff learned that Jones and Muhammad were married and living in a home subsidized by the Voucher Program. He reported this information to HANO and Muhammad was later prosecuted in federal court.

Once MFR obtained control of the program, however, it intentionally delayed payment of invoices in an attempt to lure Inspeq’s employees to leave. On September 11, 2009, MFR, using a non-existent name, advertised a job fair seeking certified inspectors in the Times-Picayune.

In October of 2009, HUD awarded Gilmore Kean a nine-month contract to provide administrative receivership services to HANO. Gilmore Kean was obligated to provide oversight of HANO’s operations as well as to conduct an operational assessment. Edgemere was retained to assist Gilmore Kean in the assessment. In January of 2010, Edgemere interviewed MFR’s executive, Edward Blaylock, and other HANO employees regarding Inspeq’s job performance. At the interview, false statements regarding Inspeq’s failure to meet its contractual obligations were provided to Edgemere. The erroneous information was later published in the operational assessment of HANO provided to HUD by Gilmore Kean on February 17, 2010. The assessment was made available to the public and circulated throughout the news media.

The plaintiff subsequently filed a defamation lawsuit on August 3, 2010. The case was removed to federal court and remanded back, after Gilmore and 1 fiEdgemere reached a settlement and were dismissed from the case. Several supplemental and amending petitions, which added new claims and defendants, were filed. Later, the recast petition, which alleged the foregoing facts, was filed. The causes of action included: defamation, conspiracy, vicarious liability or negligent failure to supervise, violations of the Louisiana Unfair Trade Practice Act (LUTPA), tortious interference with a contract/or business, and intentional infliction of emotional distress for Zeigler personally.

In response to the recast petition, all of the defendants filed similar exceptions of peremption, prescription, no cause of action, and no right of action; however, MFR included immunity among its exceptions. Legal memoranda in support and against the exceptions were filed. Without taking additional evidence or argument, the trial court granted the defendants’ exceptions asserting reasons at a hearing on April 13, 2013. The court signed a written judgment on April 23, 2012.

STANDARD OF REVIEW

“The standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes ‘against prescription and in favor of the claim that is said to be extinguished.’ ” Security Ctr. Prot. Servs., Inc. v. All-Pro Security, Inc., 94-1317, 94-1318 (La.App. 4 Cir. 2/23/95), 650 So.2d 1206, 1214 (quoting Louisiana Health Service v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090, 1098). Of the possible constructions of a prescriptive or preemptive statute, the one that maintains enforcement of the claim or action, rather than the one that bars enforcement should be adopted. Ames v. Ohle, 2011-1540 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 391.

A party urging an exception of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face. Cichirillo v. Avondale Indus., Inc., 04-2894, p. 5 (La.11/29/05), 917 So.2d 424, 428 (citation omitted). Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of prescription must be decided upon facts alleged in the petition with all allegations accepted as true. Id. (citations omitted).

On the other hand, exceptions of no cause of action and no right of action present legal questions, and are reviewed under the de novo standard. St. Pierre v. Northrop Grumman Shipbuilding, Inc., 12-545, p. 7 (La.App. 4 Cir. 10/24/12), 102 So.3d 1003, 1009 (citations omitted). The peremptory exceptions of no cause and no right of action are legally distinct. Id. “When the facts alleged in the petition provide a remedy under the law to someone, but the plaintiff who seeks the relief for himself or herself is not the person in whose favor the law extends the remedy, the proper objection is no right of action, or want of interest in the plaintiff to institute the suit.” Id., 12-545 at pp. 7-8, 102 So.3d at 1009 (quoting 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6:7 (2d ed. 2012)(“Maraist & Lemmon, Civil Procedure”)). “The proper l7objection is no cause of action ‘when the law does not provide a remedy to anyone under the facts alleged in the petition.’ ” Id., 12-545 at 8, 102 So.3d at 1009(quoting 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6:7 (2d ed. 2012)(“Maraist & Lemmon, Civil Procedure”)). In other words, “an exception of no cause of action raises the question of whether the law affords any remedy to the plaintiff under the allegations of the petition, while the exception of no right of action raises the issue of whether the plaintiff belongs to the particular class to which the law grants a remedy for the particular harm alleged by the plaintiff.” Id. (citations omitted).

An exception of no cause of action is reviewed based upon the four corners of the petition together with the attachments to the petition. Milburn v. Emanuele, 2012-0235, p. 3 (La.App. 4 Cir. 6/13/12), 96 So.3d 638, 640 (citations omitted). The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Id. (citing Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d 114, 119).

DISCUSSION

On appeal, the plaintiff asserts nine assignments of error concerning the trial court’s granting of all of the defendants’ exceptions and dismissal of all of his claims. Since the plaintiff filed suit against the defendants in his personal and in his representative capacity, we will first address the assignments of error related to lahis personal claims; then, we will address the remaining assignments of error related to the claims brought on behalf of Inspeq.

Plaintiff’s Personal Claims

The plaintiff raises two trial court errors regarding his personal claims: 1) its finding that he had no personal standing to sue; and 2) its granting of the no cause of action exception to his emotional distress claim.

Standing

First, the plaintiff asserts that the trial court erred in granting defendants’ peremptory exception of no right of action regarding his personal standing to sue. The function of an exception of no right of action is a determination of whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. St Pierre, supra. Aside from the claim for intentional infliction of emotional distress, discussed infra, the plaintiff only asserts causes of action related to Inspeq’s business dealings.

La. R.S. 12:1329 states in pertinent part: “[a] member [of an L.L.C.] shall have no interest in limited liability company property.” Thus, members of a limited liability company have no right to sue personally for damages to limited liability company property. La. R.S. 12:1320(B). See also, Roth v. Voodoo BBQ, 07-0295, p. 3 (La.App. 4 Cir. 08/01/07), 964 So.2d 1095, 1097; and Van Meter v. Gutierrez, 2004-0706 (La.App. 4 Cir. 2/16/05), 897 So.2d 781, 787 (citation omitted).

^Considering the applicable law, we find that the plaintiff, in his personal capacity, has no standing to personally sue and recover damages for injury suffered by Inspeq. Thus, the trial court correctly granted defendants’ exception of no right of action relative to the plaintiffs personal standing to sue.

Intentional Inñiction of Emotional Distress

Second, the plaintiff contends that the trial court erroneously dismissed his individual claim for intentional infliction of emotional distress finding that he failed to state a cause of action. We disagree.

To establish a claim for intentional infliction of emotional distress, the plaintiff must prove: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. Roberson v. August, 2001-1055, p. 13 (La.App. 4 Cir. 5/29/02), 820 So.2d 620, 629 (citation omitted).

“Extreme and outrageous conduct” required to maintain a cause of action for the intentional infliction of emotional distress is conduct so atrocious as to pass the boundaries of decency and to be utterly intolerable to civilized society. Id. (citation omitted). The conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry or the like. White v. Monsanto Co., 585 So.2d 1205, 1210 (La.1991). Liability for emotional distress intentionally caused by extreme and | inoutrageous conduct does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Roberson, supra (citation omitted).

In the present case, the pleadings assert that the plaintiff endured work-related emotional stress as a result of the defendants’ outrageous conduct in disseminating false information about his business and intentionally driving him out of business. He further avers that the conduct was reasonably certain to cause him severe emotional distress, and it did in fact cause him to be hospitalized.

Although the pleadings contain a conclusory assertion that the defendants’ conduct was calculated to cause him severe emotional distress, the facts as alleged in the pleadings and affidavit submitted by the plaintiff propose that the defendants devised a plan and used their positions to oust Inspeq in order to allow MFR to take over the inspection contracts for the Voucher Program. While we do not dispute that the behavior alleged to have caused the plaintiffs severe distress is extreme and intolerable, the pleadings do not establish that this behavior was reasonably calculated, by the defendants, to cause the plaintiffs emotional distress. Rather, the alleged conduct was greedy and self-centered. Although Inspeq and Zeigler were both negatively affected as a result, the perceived target as alleged by the pleadings was Inspeq not Zeigler. Accordingly, we find no error in the trial court’s dismissal of the plaintiffs claim on this issue for failure to state a cause of action.

| ^Considering the foregoing, we affirm the trial court’s granting of defendants’ exceptions of no right of action, regarding the plaintiffs personal standing to sue for losses suffered by Inspeq, and no cause of action, regarding his emotional distress claim.

Inspeq Claims

At this juncture, the only plaintiff left with viable claims is Inspeq. We now turn to the plaintiffs remaining six assignments of error, which relate only to Inspeq’s business claims, since his personal claims were dismissed. Inspeq challenges the trial court’s ruling based on its finding that: 1) its LUTPA claims were perempted; 2) it failed to state a cause of action for defamation; 8) its claim for conspiracy was prescribed; 4) it failed to state a cause of action for conspiracy; 5) it failed to state a cause of action for vicarious liability; and 6) it failed to state a cause of action for tortious interference of a contract or business.

Louisiana Unfair Trade Practices

First, Inspeq asserts that the trial court erred in finding that its LUTPA claims were preempted as of August 8, 2010. It contends that the time period to bring a LUTPA claim is prescriptive, not peremp-tive; therefore, the subsequent LUTPA claim can relate back to the original petition. It further asserts that accrual of a LUTPA claim requires an ascertainable loss and it did not suffer an ascertainable loss until their contract with HANO expired on November 3, 2009.

The prescriptive period for a private action pursuant to LUTPA is per-emptive. Morris v. Sears, Roebuck and Co., 99-2772, p. 4 (La.App. 4 Cir. 5/31/00), 765 So.2d 419, 422 (citing La. R.S. 51:1409(E)). Nothing can interfere with the running of a peremptive period. Naghi v. Brener, 08-2527, p. 10 (La.6/26/09), 17 So.3d 919, 925 (citation omitted). A peremptive period cannot be renounced, interrupted or suspended. La. C.C. art. 3461.

Because the time period in which to bring a LUTPA claim is peremp-tive, the doctrine of contra non valentem does not apply. Id. (citing Dufour v. U.S. Home Corp., 581 So.2d 765, 767 (La.App. 4 Cir.1991); Canal Marine Supply, Inc. v. Outboard Marine Corp., 522 So.2d 1201, 1204 (La.App. 4 Cir.1988)). The continuing tort doctrine is a suspension principle based on contra non valentem; therefore, it cannot be used to suspend a preemptive period. Scott v. American Tobacco Co. Inc., 04-2095 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, 1280. Likewise, there is nothing to relate back to an amended petition filed after the expiration of the peremptive period. Naghi, 08-2527 at p. 11, 17 So.3d at 926.

The date of the alleged wrongful act begins the running of the prescription, even if the plaintiff was unaware of the act. Morris, 765 So.2d at 422. According to the language of the statute, plaintiffs have one year from the time of the “transaction or act which gave rise to this right of action” to sue under LUTPA. Morris, 99-2772 at p. 5, 765 So.2d at 422 (citing La. R.S. 51:1409 E). The act gives rise to a right of action under section 1409 when the plaintiff “suffer[s] any ascertainable loss of money or moveable property.” Id. (citing La. R.S. 51:1409 A).

113The trial court found that Inspeq’s LUTPA claims were discontinuous and abated before August 3, 2009, when Muhammad allegedly strung it along before his contract was set to expire. However, the trial court neglects Inspeq’s assertion that the contract was in fact extended until November 3, 2009, thus there was no ascertainable loss to give rise to a claim under LUTPA. The two actions that purportedly gave rise to Inspeq’s LUTPA claims are MFR’s no-bid takeover of the inspections for HANO’s Voucher Program, and MFR and HANO’s subsequent defamation of Inspeq.

Inspeq brought these claims in their first supplemental petition which was filed on September 9, 2010. Thus, any LUTPA claims must be based on conduct that occurred after September 9, 2009.

With regard to the no-bid takeover, Inspeq alleges that MFR used a position of authority to drive it out of business so that it could replace it and perform the inspection services for HANO’s Voucher Program, through a no-bid contract. Pursuant to this claim, In-speq asserts that its ascertained loss occurred sometime after its contract expired on November 3, 2009, and its claim was made on September 9, 2010. Therefore, it is not perempted as to claims occurring after September 9, 2009.

In reference to the defamation claim, Inspeq asserts that HANO and MFR made defamatory statements to Gilmore Kean and Edgemere sometime in January 2010. The statements were made in an effort to justify why MFR replaced Inspeq and began performing the inspection services for the Voucher Program through a 1 uno-bid contract, while simultaneously providing sole oversight over the payment for these services. This claim was also made timely as it purportedly occurred after September 9, 2009.

Accordingly, we find that the trial court erred in finding these timely LUTPA claims perempted.

Unaddressed LUTPA Exceptions

Since the trial court granted defendants’ exceptions in their entirety, it is necessary to address HANO’s exception of no cause of action, and MFR’s exception of no right of action, although they were not orally addressed by the trial court.

HANO’s No Cause of Action Exception

With respect to HANO’s no cause of action claim, Louisiana Revised Statutes 51:1405(A) provides that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Levine v. First Nat. Bank of Commerce, 06-394, p. 20 (La.12/15/06), 948 So.2d 1051, 1065-66. This legislation is broadly and subjectively stated and does not specify particular violations. Id. Rather, what constitutes an unfair trade practice is determined by the courts on a case-by-case basis. Id. (citing Jarrell v. Carter, 577 So.2d 120, 123 (La.App. 1 Cir.1991), writ denied, 582 So.2d 1311 (1991)). “[A] practice is unfair when it offends established public Impolicy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious.” Id. (citing Roustabouts, Inc. v. Hamer, 447 So.2d 543, 548 (La.App. 1 Cir.1984)). Further, La. R.S. 51:1409 confers a right of private action on any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal from unlawful trade practices.

Since MFR was allegedly managing the Voucher Program, the assertion that MFR used its position of authority to take over the Voucher Program inspection contract, which once belonged to Inspeq establishes an unfair trade practice claim. The subsequent defamation purportedly occurred in an effort to deceive Gilmore Kean and Edgemere and justify this unscrupulous behavior. Inspeq has also asserted that the defendants’ conduct has caused an economic loss. In particular, it asserts that it lost its relationship with HANO, an existing contract in Las Vegas, and future business opportunities in other states.

Defendants argue that Inspeq admitted that it voluntarily decided not to bid on the new request for proposal contract, thus there could be no loss of profit for contract it refused to bid on. However, the real claim, as asserted by Inspeq, came when its three-month contract extension expired and MFR entered into the no-bid contract.

Accepting these allegations as true, we find that Inspeq has descriptively set forth a LUTPA cause of action arising out of unfair and deceptive trade practices.

| vjMFR’s No Right of Action Exception

In reference to MFR’s exception of no right of action, the Louisiana Supreme Court has recently clarified that any person, not just a competitor or consumer, has standing to sue under LUTPA. “LUTPA grants a right of action to any person, natural or juridical, who suffers an ascertainable loss as a result of another person’s use of unfair methods of competition and unfair or deceptive acts or practices in the conduct of any.trade or commerce.” Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 09-1633, p. 6 (La.4/23/10), 35 So.3d 1053, 1057.

Inspeq has alleged a monetary loss as a result of defendants’ unfair trade practices. Thus, it has standing to sue, and the trial court erred in granting MFR’s exception of no right of action. Considering the foregoing, we reverse the trial court’s ruling to the extent that it dismissed Inspeq’s viable LUTPA claims against MFR and HANO.

Defamation

The second challenged ruling of the trial court involves Inspeq’s defamation claim. It asserts that the trial court erroneously granted the defendants’ peremptory exception of no cause of action for defamation. It contends that the trial court mistakenly failed to recognize that the defendants were responsible for the publication of the false statements to Gilmore Kean, thus they are responsible for the re-publication in the operational assessment of HANO.

| i7“To prevail on a claim of defamation, plaintiff has the burden of proving by a preponderance of the evidence five essential elements: defamatory words, publication, falsity, malice and resulting injury. If even one of these elements is absent, the cause of action fails.” Sommer v. State, Dept. of Transp. and Dev., 97-1929, p. 25 (La.App. 4 Cir. 3/29/00), 758 So.2d 923, 939, writ denied, 00-1759 (La.10/27/00), 772 So.2d 122.

Defamatory words are those which tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating with him. Sommer, 97-1929, p. 26, 758 So.2d at 939. To be actionable, the words must be communicated or published to someone other than the plaintiff. Id. Words that expressly or implicitly accuse another of criminal conduct or that, by their nature, tend to injure one’s personal or professional reputation are considered defamatory per se. Id. If the plaintiff proves publication of defamatory per se words, the elements of falsity, injury and malice are presumed, although they may be rebutted by the defendant. Id. (citing Arledge v. Hendricks, 30,0588, pp. 3-4 (La.App. 2 Cir. 6/26/98), 715 So.2d 135, 138). To rebut this presumption, defendants have the burden of proving a reasonable belief in the truth of the statements. See Sommer, 97-1929, p. 29, 758 So.2d at 940.

Inspeq’s recast petition asserts specific facts which allege that in January of 2010, defendants HANO, through unidentified employees, and MFR, through Edward Blaylock, purposely published to Steve Fulton, of Edgemere, false information regarding its failure to fulfill its contractual duties, which was later 11Rrepublished in the operational assessment. Inspeq further asserts that it lost an existing contract, as well as the opportunity for consideration for future contracts.

Because this information calls In-speq’s ability to conduct business into question, it would naturally injure its business reputation. Thus, the statements are per se defamatory. Consequently, upon proof of publication, the elements of malice, falsity, and injury can be presumed. Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 5 (La.7/10/06), 935 So.2d 669, 675.

When ruling that Inspeq had no cause of action in defamation, the trial court noted that its defamation claims were unsupported because none of the defendants actually published the defamatory statements made in the operational assessment. However, publication refers to any non-privileged communication of defamatory words, written or oral, and it renders a defendant liable “for all republication that is the natural and probable consequence of the author’s act.” Landrum v. Board of Commissioners of the Orleans Levee District, 95-1591, p. 11 (La.App. 4 Cir. 11/27/96), 685 So.2d 382, 390 (citing Martin v. Lincoln General Hospital, 588 So.2d 1329, 1338 (La.App. 2 Cir.1991)). The publication in the operational assessment was a republication of the defendants’ original alleged defamatory statements. Thus, the trial court erred in finding that Inspeq failed to state a cause of action in defamation.

The defendant, MFR, asserts that these statements were subject to a qualified privilege. A conditional or qualified privilege exists “if the communication is made (a) in good faith, (b) on any subject-matter in which the person 119communicating has an interest or in reference to which he has a duty, [and] (c) to a person having a corresponding interest or duty.” Elmer v. Coplin, 485 So.2d 171, 176 (La.App. 2 Cir.1986). The conditional or qualified privilege exists in cases like this to allow “full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate.” Id.

Since Inspeq asserts that the statements were defamatory words designed to harm its reputation, he is alleging bad faith on the part of the defendants. Accepting these assertions as true, Inspeq has adequately stated a cause of action for defamation.

Unaddressed Defamation Exceptions

In order to determine whether Inspeq’s defamation claim will be maintained, we must now consider HANO’s exception of prescription and MFR’s official immunity claims on this issue, which were not considered by the trial court.

HANO’s Exception of Prescription

We will first address HANO’s prescription exception.

Defamation sounds in tort and therefore is subject to the one-year prescriptive period for delictual actions set forth in La. C.C. art. 3492. Farber v. Bobear, 10-985, pp. 11-12 (La.App. 4 Cir. 1/19/11), 56 So.3d 1061, 1069 (citation omitted). Under Article 3492, prescription commences to run from the day injury or damage is sustained. Id.

UoAs already discussed, Inspeq alleges that the defendants’ defamed it sometime in January of 2010, and it incurred damages after the defamatory statements were republished on February 17, 2010. Inspeq filed its defamation claims on August 3, 2010, in the original suit; therefore, this claim is not prescribed.

MFR’s Federal Official Immunity Claim

Next, we will address MFR’s claim of federal official immunity.

Federal officials have long enjoyed immunity from suits based on state-law torts when their conduct was “within the scope of their official duties and ... discretionary in nature.” Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Texas, Inc., 481 F.3d 265, 269-70 (5th Cir.2007) (citing Westfall v. Erwin, 484 U.S. 292, 297-98, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988); Evans v. Wright, 582 F.2d 20, 21 (5th Cir.1978)). The application of this law, referred to as the Westfall test, to federal officials was superseded by Congress’s passage in 1988 of the Federal Employees Liability Reform and Tort Compensation Act, also known as the Westfall Act, which eliminated the requirement that the acts be discretionary. Id. The Westfall test, which is conditioned upon discretionary acts, remains the framework for determining when non-governmental persons or entities are entitled to the same immunity. Id. (emphasis added).

Inspeq contends that MFR, a private accounting firm, has no substantial defense of official immunity. It argues that MFR was not performing an official governmental function.

|21In the order remanding the case back to state court, the federal district court agreed. It acknowledged that the [federal immunity argument] was “too attenuated to establish federal jurisdiction.” It observed that “MFR was a subcontractor for HANO, a Louisiana entity, and, even though it was overseeing a federally-funded program, it had no contractual relationship with the federal government and was not acting under a federal officer.” Since MFR was not performing a federal governmental function, we find that it does not have an official immunity defense.

Conspiracy

The trial court’s third and fourth rulings are related to Inspeq’s conspiracy claim. Inspeq asserts that the trial court erred in finding that this claim was prescribed, and in further finding that it did not state a cause of action for civil conspiracy because it failed to plead the existence of conspiracy based on an underlying intentional tort.

No Cause of Action for Conspiracy

We will review the trial court’s fourth ruling first, and determine whether Inspeq stated a cause of action in conspiracy.

In order to recover under a conspiracy theory, a plaintiff must allege and prove that an agreement existed to commit an illegal or tortious act, which act was actually committed, which resulted in the plaintiffs injury, and there was an agreement as to the intended outcome or result. Crutcher-Tufts Res., Inc. v. Tufts, 07-1556, pp. 3-4 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094, writ denied, 2008-2677 (La.1/16/09), 998 So.2d 105 (citation omitted).

|22In its recast petition, Inspeq asserts that the defendants, MFR, Dwayne Muhammad, and Rochelle Jones made an agreement to use their inside positions of authority to allow MFR to takeover the inspection services for HANO’s Voucher Program that once belonged to Inspeq. He further asserts that the defamatory statements were made in furtherance of their agreement. Thus, the pleadings assert that there was an agreement by the parties, HANO and MFR, through their agents, to commit a LUTPA violation and defamation; these acts were actually committed to accomplish its takeover objective; and the parties agreed to this outcome as they all profited from the arrangement. After considering the pleadings on their face, we find no bar to the conspiracy action.

Prescription

We will now address the prescription exception. The trial court’s holding with respect to the prescription issue was twofold. The first involves prescription of the entire claim, and the second involves prescription of the claim as it relates to the individual defendants, Muhammad, Jones, and Blaylock.

The court noted that the basis for the entire conspiracy claim was Jones and Muhammad’s secreted marriage, and Inspeq learned of that relationship in August of 2009. The court then concluded that since the claim was not asserted until September 9, 2010, with the filing of the supplemental petition, the claim was prescribed. We disagree.

The Louisiana Supreme Court has held that conspiracy by itself is not an actionable claim under Louisiana law. Ames v. Ohle, 11-1540 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 393, decision clarified on reh’g (July 11, 2012), reh’g denied (July 11, 2012), writ denied, 12-1832 (La.11/9/12), 100 So.3d 837 (citations omitted). The actionable element of a conspiracy claim is not the conspiracy itself but rather the tort that the conspirators agree to perpetrate and actually commit in whole or in part. Id. (citation omitted).

As discussed above, Inspeq has alleged underlying torts concerning a LUTPA violation, subject to a one-year preemptive period, and a defamation claim subject to a one-year prescriptive period. We have already found that the underlying LUTPA and defamation claims are not perempted or prescribed. Likewise, neither is the correlating conspiracy claim.

Accepting all of the foregoing allegations as true, we find that Inspeq has stated a sustainable cause of action for conspiracy against HANO and MFR, and it has not prescribed. As such, the trial court’s ruling is reversed.

In relation to the individual conspiracy claims, the trial court found that the conspiracy claims were not asserted against the individual defendants until March 23, 2011, with the filing of the second supplemental and amending petition. Because the amendments could not relate back, the individual claims were perempt-ed. We agree.

In Marsh Engineering, Inc. v. Parker, 04-509, pp. 8-9 (La.App. 3 Cir. 9/29/04), 883 So.2d 1119, 1125, writ denied, 04-2669 (La.1/28/05), 893 So.2d 73, the Third Circuit addressed this issue in a medical malpractice setting and held that a supplemental and amending petition adding new defendants in a legal ^malpractice action filed after the peremptive period had run did not relate back to the timely filed petition. See also Naghi, 08-2527 at pp. 10-11, 17 So.3d at 925-26 (citations omitted), where the Louisiana Supreme Court agreed that nothing could interfere with the running of a preemptive period, thus there is nothing to relate back to an amended petition filed after the expiration of the preemptive period.

Since the underlying LUTPA claim accrued on November 4, 2009, we find that the conspiracy claims brought against the individual defendants in March of 2011 are perempted. Thus the trial court did not err in dismissing Inspeq’s conspiracy claims against the individual defendants, and its ruling related to the individual defendants is affirmed.

Vicarious Liability

With respect to the trial court’s fifth ruling, Inspeq asserts that the trial court erred in granting a no cause of action exception as to its vicarious liability claim against HANO. The trial court found that Muhammad was not acting within the course and scope of his employment so as to make HANO vicariously liable to In-speq.

Civil Code Art. 2320 provides that “[mjasters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the function in which they are employed.”

This court set out the standard for determining whether an employer can be held vicariously liable in Samuels v. Southern Baptist Hospital, 594 So.2d 571 (La.App. 4th Cir.1992), writ denied, 599 So.2d 316 (La.1992), as follows:

| gtjEmployers are answerable for the damage caused by their employees in the exercise of the functions in which they are employed. When determining whether the employer is liable for the acts of an employee, factors to be considered are whether the tortious act was: (1) primarily employment rooted; (2) reasonably incidental to the performance of the employee’s duties; (3) occurred on the employer’s premises; and (4) occurred during hours of employment. It is not necessary that all factors be met in order to find liability, and each case must be decided on its merits. The fact that the primary motive of the employee is to benefit himself does not prevent the tortious act of the employee from being within the scope of the employment; if the purpose of serving the employer’s business actuates the employee to any appreciable extent, the employer is liable.

Id. at 573 (citations omitted).

The following test was also applied in Samuels:

If the tortious conduct of the employee is so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest, it can then be regarded as within the scope of the employer’s employment, so that the employer is liable in tort to third persons injured thereby.

Id. at 574, quoting Turner v. State, 494 So.2d 1292 (La.App. 2 Cir.1986).

In our de novo review, we note that Inspeq averred in his recast petition both that Muhammad was acting in the course and scope of his employment in his interactions regarding Inspeq and MFR, and that he used his authority to sabotage Inspeq in his efforts to assist MFR in taking over Inspeq’s inspection contract with HANO.

Utilizing the criteria for determining an exception of no cause of action, we find that accepting that allegation as true, we find that Inspeq has stated a sufficient cause of action to defeat the exception. With the evidence admissible under these pleadings, Inspeq may attempt to prove certain facts relating to whether Muhammad’s conduct was primarily employment rooted, and was | mreasonably incidental to the performance of his duties, whether it occurred on HANO’s premises during the hours of employment; and if the purpose of serving HANO’s business motivated the employee to any appreciable extent. While pleading more facts would surely clarify the situation for the court, it is not required to defeat this exception. Based on the facts which were alleged, Inspeq has stated a cause of action against HANO to make it liable for the actions of its employee. Whether the “course and scope of employment” alleged by Inspeq is such as to render HANO liable is a matter for trial on the merits and Inspeq is not obliged to plead all the facts which it intends to prove at trial. We find no insuperable bar on the face of the petition to this action.

Tortious Interference Claims

Relative to the trial court’s sixth ruling, Inspeq asserts that the trial court erred in finding that he had no cause of action for his tortious interference claims. However, the transcript reflects that the trial court actually ruled that Inspeq’s tortious interference claims were prescribed. On appeal, Inspeq does not assign the court’s prescription ruling as error, thus there is no issue before this Court concerning the correctness of that ruling. As such, we pretermit review of the no cause of action assignment of error because the dismissal of this claim is supported on prescription grounds, which went uncontested.

CONCLUSION

Considering the foregoing, we affirm the trial court’s rulings dismissing the plaintiffs personal claims, as well as his claim for tortious interference on behalf 127of In-speq. We reverse the trial court’s judgment granting all of the defendants, HANO, Dwayne Muhammad, National Union Insurance Company, HANO Authority Insurance Group, MFR, Rochelle Jones, and Everett Blaylock’s, exceptions and dismissing Inspeq’s LUTPA, defamation, conspiracy, and vicarious liability claims. We further remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

      . The plaintiff filed several supplements to his original petition. In response, the defendants filed numerous exceptions. As a result, the judge requested that the plaintiff file a recast petition to include all causes of action so the defendants could file exceptions to the recast petition to include any remaining exceptions.

      . Rochelle Jones, Everett Blaylock, and Dwayne Muhammad were named individually.

      . Although the plaintiff omitted this claim in his recast petition, it was included in a preceding petition. The trial court addressed this claim in his ruling and the plaintiff raised it on appeal.

      . The other claims were filed on behalf of the plaintiff personally and in his representative capacity for Inspeq.

      . In plaintiff's ninth assignment of error, he asserts that the trial court erred in granting the entirety of defendant’s exceptions while leaving several unaddressed. He discusses specific exceptions that were not addressed when the trial court orally expressed his reasons for judgment. Because the unaddressed exceptions are discussed as necessary within the other assignments of error, there is no need to discuss this assignment separately.

      . Considering our affirmation of the ruling on this issue, we pretermit discussion of HANO’s unaddressed exception of no right of action.

      . Notably, the plaintiff made two additional LUTPA claims in its recast petition filed on November 18, 2011. The first involved Muhammad's purposeful failure to pay invoices submitted by Inspeq in July of 2009. The second concerned MFR’s failure to do the same in September and November of 2009. Since those claims cannot relate back, they are perempted.


author: McClendon, j.

text:
    RANDY LANDRY HOMES, LLC v. Benjamin GIARDINA, et al.
    No. 2012 CA 1669.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.
    Kentley R. Fairchild, Houma, LA, for Plaintiffs/Appellants, Randy Landry Homes, L.L.C.

      Nicholas J. Zeringue, Thibodaux, LA, for Defendants/Appellees, Benjamin Giar-dina and Michelle Giardina.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

12This is an appeal of a judgment, sustaining an exception of no right of action in favor of the defendants and dismissing the action of the plaintiff with prejudice. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 24, 2007, Randy Landry Homes, L.L.C. (Landry) and Benjamin Giardina and Michelle Giardina entered into a “Building Contract between Owner and Contractor” for Landry to construct a home for the Giardinas in Thibodaux, Louisiana, for the sum of $531,000.00. Construction began in September 2007, and, as construction progressed, Landry received several draws/deposits totaling $489,273.00. Thereafter, a certifícate of occupancy was issued on June 2, 2008, and the Giardinas occupied the house. On June 26, 2008, Landry executed a “Waiver and Release of Liens” that acknowledged that all liens were released in consideration of the sum of $33,992.39.

On February 13, 2012, Landry filed a “Petition for Breach of Contract and for Damages” against the Giardinas, in which it asserted that it was never paid the $33,992.39 amount, which represented a $10,000.03 retainage on the original contract, plus $23,992.36 for additions and changes to the contract. Alternatively, Landry asserted that the Giardinas were liable to it on open account for the $33,992.39 amount. The Giardinas answered the petition and filed a reconven-tional demand in which they asserted that Landry provided to them the waiver, which acknowledged the receipt and sufficiency of a “final payment” of $33,992.39, and released and discharged any rights Landry had to obtain additional payment for construction of the Giardina home.

Then, on May 9, 2012, the Giardinas filed an exception of no right of action, again asserting that the Waiver and Release of All Liens discharged and released all of Landry’s rights to any further payment. Landry opposed the |aexception, and following a hearing held on July 5, 2012, the trial court granted the exception of no right of action and dismissed Landry’s petition with prejudice. Judgment was signed on July 17, 2012, and Landry-appealed.

DISCUSSION

In its sole assignment of error, Landry contends that the trial court erred in granting the exception of no right of action and dismissing its petition.

An action can only be brought by a person having a real and actual interest which he asserts. LSA-C.C.P. art. 681; Robertson v. Sun Life Financial, 09-2275 (La.App. 1 Cir. 6/11/10), 40 So.3d 507, 511. The function of the exception urging no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. LSA-C.CP. art. 927A(6); Babineaux v. Pemie-Bailey Drilling Co., 261 La. 1080, 1096, 262 So.2d 328, 334 (La.1972); Robertson, 40 So.3d at 511. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit; it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Robertson, 40 So.3d at 511.

Evidence is admissible on the trial of an exception of no right of action to support or controvert the objections pleaded, when the grounds for the objections do not appear from the petition. LSA-C.CP. art. 931, However, the exception of no right of action cannot be invoked to determine whether a particular defendant can stand in judgment in a particular case, i.e., whether the right or remedy can be exercised against that defendant. Babineaux, 262 So.2d at 333-34. Objections of no right of action cannot be used simply because there may be a valid defense to the proceeding. Brown v. Associated Ins. Consultants, Inc., 97-1396 (La.App. 1 Cir. 6/29/98), 714 So.2d 939, 941; Falco Lime, Inc. v. Plaquemine Contracting Co., Inc., 95-1784 (La.App. Cir. 4/4/96), 672 So.2d 356, 359. The exception does not raise the question of the plaintiffs ability to prevail on the merits, nor the question of whether the defendant may have a valid defense. Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 597 So.2d 1155, 1158 (La.App. 1 Cir.1992).

Whether a plaintiff has a right of action is a question of law and is therefore reviewed de novo on appeal. Gibbs v. Delatte, 05-0821 (La.App. 1 Cir. 12/22/05), 927 So.2d 1131, 1135, writ denied, 06-0198 (La.4/24/06), 926 So.2d 548.

In this matter, Landry asserted in its petition that it executed a contract with the Giardinas for the construction of a house and that after the Giardinas occupied the house, they failed to pay the remaining balance due under the contract. Landry, as the contractor on this project, is the only party that could possibly have the right to pursue payment under the contract. Landry’s breach-of-contract petition clearly places it in the class of persons for whose interest the stated cause of action is provided. Landry has alleged an interest or right of action in its favor.

In filing the exception raising the objection of no right of action, the Giardinas were seeking to present evidence to disprove Landry’s allegations. The evidence they presented that Landry signed a waiver of all claims does not pertain to Landry’s interest in the cause of action. It is immaterial that the Giardinas may have a valid defense to Landry’s claim. The alleged basis of the exception is not properly the subject matter for the objection of no right of action, but addresses the issue of Landry’s liability. As such, it is a matter of defense to be presented on the merits or otherwise preliminarily raised through an appropriate exception or motion. The Giardinas’ use of the exception of no right of action was improper and the trial court erred in sustaining the objection. See Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212, 1215 (La.App. 1 Cir.1977).

I,CONCLUSION

The July 17, 2012 judgment of the trial court, sustaining the exception raising the objection of no right of action filed by Benjamin Giardina and Michelle Giardina and dismissing the claims of Randy Landry Homes, L.L.C., is reversed, and this matter is remanded to the trial court for further proceedings consistent herewith. Costs of this appeal are assessed to the Giardinas.

REVERSED AND REMANDED.

      . It is undisputed that Randy Landry is the sole member of Randy Landry Homes, L.L.C.

      . The pleading was entitled "Exception of No Right of Action with Motion for Summary Judgment and Motion for Partial Summary Judgment and Memorandum in Support.”

      . After sustaining the exception, the trial court determined that the motions for summary judgment were moot.

      . We note that our ruling herein renders the summary judgment motions filed by the Giar-dinas, no longer moot.