author: SAVOIE, Judge.

text:
    Billy B. MILLER v. SHELTER INSURANCE COMPANY, et al.
    CA 18-216
    Court of Appeal of Louisiana, Third Circuit.
    January 30, 2019
    Jerry Lytel Lavespere, Jr., Attorney at Law, 1805 Jackson St., Alexandria, LA 71301, (318) 443-9926, COUNSEL FOR PLAINTIFF/APPELLANT: Billy B. Miller
    Jason R. Bell, Cox, Cox, Filo, Camel & Wilson, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPELLANT: Billy B. Miller
    Michael M. Thompson, Taylor, Wellons & Duhe, 8550 United Plaza Blvd., # 101, Baton Rouge, LA 70809, (225) 387-9888, COUNSEL FOR DEFENDANT/APPELLEE: Lowe's Home Centers, Inc.
    Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Plaintiff, Billy Miller, appeals the trial court's summary judgment in favor of Defendant, Lowe's Home Centers, L.L.C., dismissing his claims against it. For the following reasons, we reverse and remand for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

On April 12, 2016, Mr. Miller filed a petition alleging that he was injured on or about October 9, 2015, when a vehicle driven by Lance Carruth struck him in the parking lot of a Lowe's store as he was walking out of the store. Mr. Miller named Mr. Carruth, and Mr. Carruth's insurer, Shelter Insurance Company, as Defendants. On June 2, 2016, Mr. Miller filed a supplemental and amending petition against Lowe's alleging that his injuries were caused by the fault and negligence of a Lowe's employee, including "failing to warn;" "failing to keep a proper lookout;" and "failure to use reasonable care and caution." On March 8, 2017, a judgment was signed dismissing Mr. Miller's claims against Mr. Carruth and Shelter, pursuant to a joint motion by the parties.

Lowe's filed a Motion for Summary Judgment on June 15, 2017, seeking the dismissal of Mr. Miller's claims. It argued that Mr. Miller would not be able to prove that Lowe's breached a duty, or that any alleged breach of duty was a cause-in-fact of the accident. Specifically, Lowe's argued that, on the day of the accident, Mr. Carruth

pulled [his] vehicle in front of the contractor entrance of Lowes. As he parked his vehicle, a forklift approached and needed room to get around Mr. Carruth's vehicle. Lowes anticipates argument in opposition to this Motion that the operator of the forklift, David Fontenot, signaled Mr. Carruth to reverse. That issue is not material. There is no dispute that Lance Carruth checked his mirrors prior to reverse and was looking towards the back of his vehicle at all times while proceeding in reverse. Carruth was not looking at any Lowe's employee and he was not relying on any indication from a Lowe's employee that the path was clear to proceed in reverse.

Therefore, according to Lowe's, Mr. Carruth "assumed the risk of potentially harming a customer by looking backward and proceeding in reverse," and summary judgment was appropriate.

In support of its motion, Lowe's attached the deposition of Mr. Carruth, wherein Mr. Carruth testified that on the day of the accident at issue, he was driving his 2010 Chevrolet Silverado and had gone to Lowe's to purchase building materials. He left the items he wished to purchase in the store and then moved his vehicle from the parking lot into the loading area in front of the store. He indicated that as he was pulling into the loading area, there was a red Dually to his right, so he pulled into the left lane of the loading area, and there was a forklift to his immediate front left, which was facing the building. He testified that as he pulled into the loading area, the driver of the forklift, who he assumed was a Lowe's employee, gestured to him to back up so that the forklift driver could get to the red Dually.

Mr. Carruth also testified in his deposition that there was a flag attendant near the forklift, who was also a Lowe's employee. He indicated that the flag attendant had her back towards his vehicle and did not direct Mr. Carruth to back up.

According to Mr. Carruth's deposition testimony, as he shifted his truck into reverse, he looked into his left mirror, and then turned to his right to back up. He testified: "[O]ut of nowhere, I see, I guess Mr. Miller. ... And then I see him hobbling around so I put ... my truck rather in Park and got out and asked him what happened and he said he hit his leg on my hitch." Mr. Carruth indicated he assumed Mr. Miller was coming out of the store and that he had approached his vehicle from the left side. Mr. Carruth further testified in his deposition as follows:

Q ..... So you would not have been backing up if it wouldn't have been for the Lowe's employee directing you to backup; correct?
....
A. That's correct.
....
Q. Okay. To your knowledge, the Lowe's employee was just getting you to move so they could access the red truck; correct?
A. That's correct.
....
Q. The Lowe's employee was not signaling to you that the way was clear for you to backup; correct?
A. That's correct.
....
Q. Okay. And if I understand your testimony, you were never relying on Lowe's employees to ensure that it was okay for you to reverse? That was something you undertook on your own when you were reversing your vehicle?
....
A. I -- I never had a conversation with them.
....
Q. Okay. You would agree with me that as the driver of a vehicle, it is incumbent upon you to ensure that the way is clear for you to reverse it; correct?
A. Yes, sir.

Mr. Miller did not submit any evidence in opposition to Lowe's motion for summary judgment.

Following a hearing on November 13, 2017, the trial court granted Lowe's motion and dismissed Mr. Miller's claims against it. In its reasons for ruling, the trial court stated:

I don't find that there is a duty on the part of Lowe's. That the flag person, in fact, was not connected to Mr. Miller - or Mr. Carruth backing up ... that Lowe's was not responsible to Mr. Carruth. The flag person was there for the other traffic of Lowe's. ... [Mr. Carruth] talks about in his deposition ... that he looked in his mirror, he turned back, he turned away from the forklift, meaning he was aware of the forklift driver but then he took it upon himself to go .... However, with all that he just didn't see the pedestrian. And so I do find that there is no duty on the part of Lowe's.

Mr. Miller appeals. He states the following as assignments of error: "The trial court erred in granting Lowe's motion for summary judgment where Lowes (1) had a duty to protect Mr. Miller; (2) Lowe's breached that duty; and (3) Lowe's breach was a cause-in-fact of Mr. Miller's injuries."

STANDARD OF REVIEW

"[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1).

"Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate." Larson v. XYZ Ins. Co. , 16-745, p. 6 (La. 5/3/17), 226 So.3d 412, 416.

ANALYSIS

"[W]hether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case." Lemann v. Essen Lane Daiquiris, Inc. , 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627, 632. Mr. Miller has asserted a negligence claim against Lowe's, and therefore, the duty-risk analysis is applicable.

It is well settled that questions of liability for negligent acts are evaluated using a duty-risk analysis. Under the duty-risk approach, the "[p]laintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant[,] and the risk of harm was within the scope of protection afforded by the duty breached."

D.C. v. St. Landry Parish School Bd. , 00-1304, p. 2-3 (La.App. 3 Cir. 3/7/01), 802 So.2d 19, 21, writ denied , 01-981 (La. 5/25/01), 793 So.2d 169.

Duty:

The trial court granted Lowe's motion finding that no duty existed. However, Lowe's motion for summary judgment did not raise the issues of whether Lowe's owed a duty to Mr. Miller, or whether the scope of any duty owed by Lowe's encompassed the risk of harm at issue. Rather, Lowe's motion was based only upon its argument that, under the undisputed facts, Mr. Miller would not be able to prove at trial "Lowe's breach of duty [ ]or that any alleged conduct by Lowe's was a cause-in-fact for the accident."

"A summary judgment may be rendered or affirmed only as to those issues set forth in the motion for consideration by the court at that time." La.Code Civ.P. art. 966(F). Therefore, we find error in the trial court's ruling in as much as it ruled on the issue of duty, which was not properly before it.

We further note:

Duty is a question of law. The duty issue may be appropriate for resolution by summary judgment. La.Code Civ.P. art. 966(B). However, summary judgment is proper, in such instances, only when it is clear no duty exists as a matter of law; and, the facts or credibility of the witnesses are not in dispute.
In general, store owners owe a duty to patrons to take reasonable care for their safety, although they are not the insurer of the patron's safety.

Parish v. L.M. Daigle Oil Co., Inc. , 98-1716, p. 2-3 (La.App. 3 Cir. 6/23/99), 742 So.2d 18, 20.

Therefore, summary judgment on the issue of whether Lowe's owed a duty to Mr. Miller was improper.

Breach of Duty:

Whether a defendant breached a duty is a factual question to be determined by the factfinder. Hanks v. Entergy Corp. , 06-799 (La. 12/18/06), 944 So.2d 564. "Generally, breach of a duty is the failure to exercise reasonable care under the circumstances." D.C. , 802 So.2d at 22. Therefore, summary judgment is appropriate only if, under the facts and circumstances, reasonable minds could not disagree that Lowe's did not fail to exercise reasonable care.

According to Mr. Carruth's deposition testimony, a Lowe's employee was operating a forklift in the loading zone outside of the contractor entrance to the store, and a flagman, also a Lowe's employee, was "in close proximity to the forklift," with her back facing away from Mr. Carruth. Then, as Mr. Carruth was pulling his vehicle into the loading area in front of the store, the driver of the forklift gestured to him to back up his vehicle. Then, he put his vehicle from drive into reverse and began to back up. According to Mr. Carruth, after reversing for "four or five feet, if that far," his vehicle made contact with Mr. Miller, who Mr. Carruth believed was exiting the store. According to Mr. Carruth, he would not have backed up his vehicle had the forklift driver not gestured for him to do so. There is no indication that Mr. Miller was not exiting the store or otherwise not in the loading zone area at the time that the Lowe's forklift driver gestured to Mr. Carruth to reverse.

Lowe's argues that, because Mr. Carruth testified the forklift driver was gesturing him to move but did not signal to him that it was clear for him to back up, Mr. Carruth "assumed" the risk of injuring a pedestrian as he was reversing his vehicle. Therefore, according to Lowe's, summary judgment on the issue of breach is appropriate.

However, a breach of duty on the part of Mr. Carruth does not necessarily absolve Lowe's from its own breach of duty. Rather, the question presented is whether, under the instant facts, reasonable minds must inevitably conclude that the Lowe's employees working in the loading zone where the accident occurred did not fail to exercise reasonable care toward Mr. Miller, who was a Lowe's patron. We find that Mr. Carruth's testimony could lead a reasonable factfinder to conclude that the Lowe's forklift driver failed to exercise reasonable care when requesting Mr. Carruth to reverse his vehicle into the path of Mr. Miller. In addition, a factfinder could also reasonably conclude that the forklift driver's and flagman's efforts, or lack thereof, in directing Mr. Carruth as he proceeded in reverse, after requesting him to reverse, constitutes a failure to exercise reasonable care.

Therefore, because material issues of fact exist as to whether the Lowe's employees exercised reasonable care under the circumstances, summary judgment on the issue of whether Lowe's breached its duty is inappropriate.

Cause-In-Fact

As stated in Daigrepont v. AAA Transp. Co. , 98-1329 (La.App. 3 Cir. 3/3/99), 736 So.2d 923, 927 :

An action is the cause-in-fact of an injury, if it is a "substantial factor" in bringing about the harm. For example, the act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it.
Whether or not an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the fact finder. It may be disposed of by summary judgment when no reasonable minds could differ regarding the uncontested facts. If the mover proves that under the undisputed facts, the action could not reasonably be the cause-in-fact of the harm, summary judgment should be granted unless the nonmover sets forth genuine issues of material fact.

Lowe's argues that Mr. Carruth's deposition testimony conclusively establishes that any breach of duty on the part of Lowe's could not be a cause-in-fact of Mr. Miller's injuries. We disagree.

Mr. Carruth testified that: the forklift driver was not signaling to him that it was clear to backup, but rather he was only indicating for him to move; he "never had a conversation" with a Lowe's employee ensuring him that it was okay to reverse; and, as the driver of the vehicle, it was incumbent upon him to ensure the way was clear. Mr. Carruth also testified that had the Lowe's forklift driver not gestured for him to back up, he would not have done so.

Mr. Carruth's testimony could lead a reasonable factfinder to conclude that Mr. Carruth's decision to reverse his vehicle was based upon the actions of the Lowe's employees, and but for their actions, the accident would not have occurred. Further, while Mr. Carruth testified that the Lowe's forklift driver and flagman did not signal to him that it was safe to reverse his vehicle and he did not rely on the Lowe's employees while backing up, a reasonable factfinder could conclude that the Lowe's employees' failure to take more action in directing Mr. Carruth while in reverse, after requiring him to move, was a cause-in-fact of the accident. Therefore, we find that material issues of fact concerning whether Lowe's actions or inactions were a cause-in-fact of the accident exist, and the summary judgment is inappropriate.

CONCLUSION

For the reasons set forth above, the summary judgment rendered by the trial court is hereby reversed and the matter is remanded for further proceedings. Costs of this appeal are assessed to Defendant-Appellee, Lowe's.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: KEATY, Judge, dissenting.

license: Public Domain

text:
    Megan THOMAS, et al. v. The REGIONAL HEALTH SYSTEM OF ACADIANA, LLC, et al.
    18-215
    Court of Appeal of Louisiana, Third Circuit.
    February 27, 2019
   David A. Hurlburt, M. Blake Monrose, George D. Ernest, III, Hurlburt, Monrose & Ernest, P.O. Drawer 4407, Lafayette, LA 70502, (337) 237-0261, COUNSEL FOR PLAINTIFF/APPELLANT: Megan Thomas individually and as natural tutrix of her minor daughter, Mariah Charles

Aldric C. Poirier Jr., Elizabeth S. Sconzert, Blue, Williams, L.L.P., 1060 West Causeway Approach, Mandeville, LA 70471-3046, (985) 626-0058, COUNSEL FOR DEFENDANTS/APPELLEES: Regional Health System of Acadiana, LLC d/b/a Women's and Children's of Lafayette, HCA Holdings, Inc., Health Care Indemnity, Inc.

Nicholas Gachassin, III, Julie Savoy, Gachassin Law Firm, P.O. Box 80369, Lafayette, LA 70598-0369, (337) 235-4576, COUNSEL FOR DEFENDANT/APPELLEE: Lafayette General Health Systems, Inc. d/b/a Lafayette General Medical Center

Carl E. Hellmers, III, Halley S. Carter, Frilot L.L.C., 3700 Energy Centre, 1100 Poydras Street, Suite 3700, New Orleans, LA 70163-3700, (504) 599-8035, COUNSEL FOR AMICUS CURIAE: Ochsner Clinic Foundation

Chris J. LeBlanc, Watson, Blanche, Wilson & Posner, P.O. Box 2995, Baton Rouge, LA 70821-2995, (225) 387-5511, COUNSEL FOR AMICUS CURIAE: LAMMICO, Louisiana Hospital Association, Louisiana Hospital Association Medical Malpractice and General, Liability Trust, Willis-Knighton Health System, Louisiana Ambulatory Surgery Center Association

Court composed of John D. Saunders, Shannon J. Gremillon, Phyllis M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.

KYZAR, Judge.

The plaintiff, Meghan Thomas, individually and on behalf of her minor daughter, Mariah Charles, appeals from a trial court judgment granting exceptions of prematurity in favor of the defendant hospitals, dismissing Ms. Thomas' claims without prejudice. For the reasons set forth, we reverse the judgment of the trial court and remand the matter for further proceedings.

DISCUSSION OF THE RECORD

On May 6, 2016, Ms. Thomas filed a negligence action against the following defendants: the Regional Health System of Acadiana, LLC d/b/a Women's and Children's Hospital; Women's and Children's of Lafayette; Health Care Indemnity, Inc.; HCA Holdings, Inc. (all referred to collectively as Women's and Children's); and Lafayette General Health Systems, Inc. d/b/a Lafayette General Medical Center (referred to as LGMC). The facts leading to this suit stem from the premature birth of Ms. Thomas' daughter, Mariah Charles, on October 8, 2014, at LGMC. Following her birth, Mariah remained hospitalized at LGMC through March 2, 2015, under the care of Dr. Geeta Dalal, a non-board certified pediatric cardiologist, who was credentialed at both LGMC and Women's and Children's.

Ms. Thomas alleged that during Mariah's hospitalization at LGMC, Dr. Dalal ordered and interpreted eight echocardiogram procedures, which revealed abnormal findings of a patent ductus arteriosus (PDA), with a large left to right shunt, and an echogenicity, either a blood clot or an abnormal growth of tissue, on the atrial septum. She asserted that a "PDA in a premature baby such as Mariah Charles can cause pulmonary artery hypertension, a serious and life threatening condition." Despite these findings, she claimed that Dr. Dalal took no further action. On March 2, 2015, Mariah was transferred to Women's and Children's, where she remained under the care of Dr. Dalal. Ms. Thomas asserted that while Mariah was hospitalized at Women's and Children's, Dr. Dalal interpreted at least three more echocardiograms, again noting a large PDA with a large left to right shunt. She claimed that despite this finding, Dr. Dalal did nothing to treat this life-threatening condition.

After Mariah's discharge from Women's and Children's on April 1, 2015, she remained under Dr. Dalal's care on an outpatient basis. On April 15, 2015, Dr. Dalal performed an echocardiogram and again noted a moderate PDA, with left to right shunt, and the echogenicity. She concluded that Mariah was hemodynamically stable and scheduled a one-month follow-up appointment.

Ms. Thomas alleged that Mariah was admitted to the pediatric intensive care unit at Women's and Children's on May 8, 2015, because of low oxygen saturation levels, despite being supplemented with oxygen. While there, she was examined by a board certified pediatric cardiologist, who immediately diagnosed pulmonary artery hypertension based on the results of an echocardiogram. Because she was experiencing a pulmonary hypertensive crisis, Mariah was transported via helicopter to the Children's Hospital of New Orleans, where the diagnosis of pulmonary artery hypertension was confirmed and a heart catheterization procedure was performed on May 13, 2015, to close the PDA.

On May 6, 2016, Ms. Thomas mailed a request to convene a Medical Review Panel, alleging medical malpractice against Dr. Dalal, Regional Health System of Acadiana, Women's and Children's, and LGMC, based on the above stated facts. Her request was filed with the Louisiana Patient Compensation Fund on May 10, 2016. On May 6, 2016, Ms. Thomas also filed the instant suit against the defendant hospitals, LGMC and Women's and Children's, which repeated the medical facts alleged in her medical malpractice claim regarding Dr. Dalal's actions. However, the petition asserted that LGMC and Women's and Children's were liable under general tort law, rather than in medical malpractice, because they "negligently credentialed Dr. Dalal and negligently provided her with privileges to practice in [their] hospital[s]."

Ms. Thomas claimed that Mariah suffered damages as a result of the defendants' negligence in granting medical privileges to Dr. Dalal, including injuries and damage to her heart, circulatory system, and nervous system; developmental delays; damage to her respiratory system; loss of physical capacity; past and future pain and suffering; mental anguish; emotional distress; embarrassment and humiliation; loss of enjoyment of life, including the ability to live independently; past medical expenses; future medical expenses, including accommodations for her disabilities; custodial care expenses; loss of earning capacity; and loss of the chance of a better medical outcome, thereby, entitling her to recover general and special past, present, and future damages.

In response to the petition, both LGMC and Women's and Children's filed dilatory exceptions of prematurity, asserting that the negligent credentialing claims sounded in medical malpractice, which had not been submitted to a medical review panel, and were, thus, premature. As a result of the filing of the exceptions, the medical review panel proceeding was voluntarily stayed by agreement of all parties, pending a ruling from the trial court on the exceptions.

In its exception of prematurity, LGMC asserted that it was a qualified health care provider pursuant to the Louisiana Medical Malpractice Act (LMMA) and was so qualified between October 2014 to May 2015, the date range of the incident that is the subject matter of Ms. Thomas' lawsuit. As a qualified health care provider, LGMC was entitled to have Ms. Thomas' claims presented first to a medical review panel in accordance with La.R.S. 40:1231.8, which provides, in part, that "[n]o action against a health care provider ... may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel[.]" La.R.S. 40:1231.8(B)(1)(a)(i). Women's and Children's asserted essentially the same allegations in its exception of prematurity.

LGMC introduced the affidavit of Kathleen Degeyter, its System Director of Medical Staff Services, who stated that Dr. Dalal was initially credentialed, granted clinical privileges, and appointed to its medical staff in June 1987. She further stated that Dr. Dalal was re-credentialed every two years via its recredentialing process, which included peer review of her patient care, on an ongoing basis, through March 2011. Ms. Degeyter stated that once Dr. Dalal reached sixty-five years of age, she was subject to yearly recredentialing through the date of her retirement in June 2017.

At the conclusion of the hearing on November 9, 2017, the trial court granted the exceptions in favor of the hospitals. A formal judgment was rendered on December 18, 2017, and Ms. Thomas timely filed a petition for appeal on January 26, 2018. On appeal, Ms. Thomas argues that the trial court "erred as a matter of law in granting the exceptions of prematurity by apparently concluding that both credentialing and recredentialing of a physician falls under the Louisiana Medical Malpractice Act."

The narrow question presented to this court is whether Ms. Thomas' claims for the alleged negligent recredentialing of Dr. Dalal against LGMC and Women's and Children's fall under the Louisiana Medical Malpractice Act (LMMA) or sound in general negligence under the holding of Billeaudeau v. Opelousas General Hospital Authority , 16-846 (La. 10/19/16), 218 So.3d 513. If the claim is controlled by the LMMA, the trial court's grant of the exception of prematurity must be affirmed. If the claim is governed by general negligence law, the trial court's decision must be reversed.

At the outset, we note that the Louisiana Medical Malpractice Act (LMMA) "constitutes a special legislative provision in derogation of the general rights available to tort victims and, therefore, must be strictly construed." Keating v. Van Deventer , 14-157, p. 6 (La.App. 1 Cir. 9/19/14), 153 So.3d 1200, 1203, writs denied , 14-2147, 14-2181, 14-2188 (La. 1/9/15), 157 So.3d 598, 157 So.3d 599, 157 So.3d 1106.

The question of whether a claim sounds in medical malpractice is a question of law conducted under a de novo standard of review. Matherne v. Jefferson Parish Hosp. Dist. No. 1 , 11-1147 (La.App. 5 Cir. 5/8/12), 90 So.3d 534, writ denied , 12-1545 (La. 10/12/12), 98 So.3d 873.

The dilatory exception of prematurity provided for in La. C.C.P. art. 926(1) questions whether the cause of action has matured to the point where it is ripe for judicial determination. Williamson v. Hospital Service Dist. No. 1 of Jefferson , 04-0451, p. 4 (La. 12/1/04), 888 So.2d 782, 785. See also Frank L. Maraist, 1 La. Civ. Law Treatise, Civ. Proc. § 6:6 (2d ed.) (updated Nov. 2015). Under the MMA, a medical malpractice claim against a qualified health care provider is subject to dismissal on a timely exception of prematurity if such claim has not first been reviewed by a pre-suit medical review panel. La. R.S. 40:1231.8. See also Williamson , 04-0451, p. 4, 888 So.2d at 785 ; Spradlin v. Acadia-St. Landry Med. Found. , 98-1977, p. 4 (La. 2/29/00), 758 So.2d 116, 119. In such situations, a defendant's exception of prematurity neither challenges nor attempts to defeat any of the elements of the plaintiff's cause of action, but instead asserts that the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement. Id. The burden of proving prematurity is on the moving party, in this case the Hospital, which must show that it is entitled to a medical review panel, because the allegations fall within the MMA. Williamson , 04-0451, p. 4, 888 So.2d at 785.

Dupuy v. NMC Operating Co., L.L.C. , 15-1754, pp. 3-4 (La. 3/15/16), 187 So.3d 436, 438-39.

The LMMA defines "malpractice" as

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.R.S. 40:1231.1(A)(13).

In Billeaudeau , the supreme court, after applying the Coleman test and analyzing the issue based on principles of statutory construction, held that a plaintiff's claim against a hospital for the negligent credentialing of a physician was weighted in favor of a finding that the claim sounded in general negligence and outside the purview of the LMMA and its limitations on liability.

LGMC and Women's and Children's urge that Billeaudeau only applies to claims involving the "initial credentialing" of a physician by a hospital and not to the recredentialing of a physician for the same privileges. They further urge that a recredentialing decision implicates a peer review and supervision component such as to fall within the gambit of medical malpractice. However, we find nothing within Billeaudeau to support such a limitation. To interpret the holding of the supreme court to such a narrow reading would lead to absurd results. In any case where a physician passed the initial credentialing process and had been recredentialed even once for privileges at a hospital, the hospital would then be able to assert that the claim was a malpractice claim as it involved supervision and oversight. We do not and cannot place such a limitation on the holding in Billeaudeau .

Just as the supreme court recognized in Billeaudeau , the exceptions of prematurity in this case, like the motion for summary judgment therein, do not seek dismissal of Ms. Thomas' claims on the merits, but simply a determination of whether a claim for the negligent credentialing or recredentialing of a physician, as in this case, is governed by the LMMA.

We first look to statutory construction to determine whether the claim for negligent credentialing or recredentialing falls within the scope of the LMMA. In Mayeux v. Charlet , 16-1463, p. 8 (La. 10/28/16), 203 So.3d 1030, 1036, the supreme court set out the rules regarding statutory construction:

The starting point in the interpretation of any statute is the language of the statute itself as what a legislature says in the text of a statute is considered the best evidence of its intent and will. M.J. Farms [Ltd. v. Exxon Mobile Corp. ], 07-2371 at p. 13 (La. 7/1/08), 998 So.2d [16,] 27. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. Civ. Code art. 9 ; La. Rev. Stat. §§ 1:3 and 1:4. However, ["]when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." La. Civ. Code art. 10 ; La. Rev. Stat. § 1:3. The legislative history of an act and contemporaneous circumstances are also helpful guides in ascertaining legislative intent. Exxon Pipeline Co. v. Louisiana Public Service Com'n , 98-1737, p. 9 (La. 3/2/99), 728 So.2d 855, 860.

Justice Weimer, in his concurring opinion in Billeaudeau , 218 So.3d at 529-30 (alteration in original) (footnote omitted), noted:

"[J]urisprudence, even when it arises to the level of jurisprudence constante , is a secondary source of law." Delta Chemical Corp. v. Lynch , 07-0431, p. 13 (La.App. 4 Cir. 2/27/08), 979 So.2d 579, 588 (citing Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad , 48 La. L. Rev. 1369, 1372 (1988) ).
Here, the primary source of law which guides our decision is statutory. This case turns on whether the Louisiana Medical Malpractice Act (LMMA) addresses what has been described as "credentialing" of a physician to work in a hospital emergency room. More specifically, the focus is whether La. R.S. 40:1299.41(A)(8) includes credentialing or its equivalent within the LMMA's definition of malpractice.
After observing that credentialing is not explicitly mentioned in La. R.S. 40:1299.41(A)(8), the majority proceeds directly to the six-factor test from Coleman v. Deno , 01-1517, pp. 17-18 (La. 1/25/02), 813 So.2d 303, 315-16. Those six factors may be used "to assist a court in determining whether certain conduct by a qualified health care provider constitutes 'malpractice' as defined under the [L]MMA." Williamson v. Hospital Service Dist. No. 1 of Jefferson , 04-0451, p. 6 (La. 12/1/04), 888 So.2d 782, 786. However, because of the primary role of statutory law, any applicable traditional methods of statutory interpretation should be exhausted before resorting to assistance from the jurisprudential test in Coleman .
Here, I find the rule of statutory construction expressio unius est exclusio alterius applicable. The rule has been recognized as an "established legal maxim," and dictates "that when a law specifically enumerates certain items but omits other items, the omission is deemed intentional." Anderson v. Ochsner Health System , 13-2970, p. 6 (La. 7/1/14), 172 So.3d 579, 583.

Louisiana Revised Statutes 40:1231.1(A)(13), in defining malpractice, lists specifically enumerated health care activities, including "all legal responsibility of a health care provider arising from acts or omissions ... in the training or supervision of health care providers." However, the terms "credentialing," "recredentialing," "hiring," "rehiring," and "retention" are not included within the legal responsibility of a health care provider under the definition of malpractice under the LMMA.

The legislative history of the LMMA further supports the conclusion that credentialing and/or recredentialing are not included in the definition of malpractice. As this court noted in Billeaudeau v. Opelousas General Hospital Authority , 15-1034, p. 8 (La.App. 3 Cir. 4/6/16), 189 So.3d 561, 566, writ granted , 16-846 (La. 6/28/16), 192 So.3d 781, affirmed , 16-846 (La. 10/19/16), 218 So.3d 513, in discussing the legislative history of the LMMA, "[t]he original bill introduced in the senate would have included 'acts or omissions in the hiring, training, supervision, or retention of caregivers' " and that "[o]n three other occasions, bills were introduced in the Louisiana legislature to include 'credentialing' in the definition of medical malpractice[,]" but all of these efforts failed. See 2005 House Bill No. 257; 2006 House Bill No. 260; and 2008 Senate Bill No. 509. (Emphasis added.)

Thus, it is clear from the language of the LMMA that decisions involving the hiring or retention of a physician are not included within the definition of malpractice, and thus, are excluded from the procedural framework of the LMMA. The term "credentialing" was specifically omitted from the LMMA's definition of malpractice. Decisions concerning the retention of physicians for privileges at a hospital were also excluded from the definition of malpractice. Hiring and credentialing are one and the same, as are retention or recredentialing. None of these actions are covered under the auspices of the LMMA; thus, applying the principles of statutory construction, Ms. Thomas was not required to submit this claim to the medical review panel as a prerequisite to filing suit against either LGMC or Women's and Children's solely for negligent credentialing or recredentialing of Dr. Dalal.

Applying the Coleman factors to this claim also weighs in favor of a conclusion that it is one of general negligence as opposed to medical malpractice. The inquiry in negligent credentialing and recredentialing claims is not necessarily "treatment related" or related to a dereliction of professional skill of the physician; thus, the first Coleman factor weighs heavily in favor of finding that the claim lies in negligence, rather than in malpractice. While the credentialing decision may involve a review of the physician's treatment-related actions in prior instances, whether at this hospital or another, the particular actions of the physician leading to the lawsuit are not highly relevant to the question of negligent credentialing, as they post-date the credentialing decision by the hospital. The inquiry is whether the hospital, given the background, history, and qualifications of the physician, should have granted him or her privileges to work within the confines of that hospital at the time of the credentialing or recredentialing process. Thus, it does not necessarily involve the supervision or training of the physician by the hospital itself.

Next, while expert testimony may well be required, it is not for the purpose of determining the standard of care of the physician in a given medical situation, but whether the physician met the qualifications for credentialing at a given hospital to perform specific medical services. The administrative decision to credential and recredential Dr. Dalal did not involve the assessment of Mariah's condition, nor did it necessarily involve the actual medical assessment of any patient's condition. Consequently, this third factor likewise mitigates against finding coverage within the scope of a malpractice claim under the LMMA.

As to the fourth Coleman factor, we recognize that credentialing is within the scope of activities a hospital is licensed to perform, specifically under La.R.S. 40:2114(E), and thus, this factor weighs in favor of the claim being within the realm of a malpractice claim. However, applying the rational of the supreme court in Billeaudeau , we also conclude that the fifth Coleman factor does not weigh greatly in favor of finding the negligent-credentialing claim covered under the LMMA, as the decision to hire or retain a physician is not specifically treatment related. Finally, Ms. Thomas' claim was not based on an intentional tort.

Credentialing is credentialing, whether it was done one time or thirty-five times, and it applies to both the initial credentialing process and the recredentialing process. Just as a physician's prior performance, including past claims for malpractice, are considered in the initial credentialing decision, they will also affect subsequent credentialing decisions. That does not equate the credentialing or recredentialing process to a supervisory function. It continues to encompass the evaluation of the physician's personal, educational, and skills background in determining whether a physician should be allowed to care for patients within the walls of that particular hospital.

Accordingly, we find that the trial court erred in granting the peremptory exception of prematurity in favor of LGMC and Women's and Children's.

DISPOSITION

Based on the foregoing, the judgment of the trial court is reversed and the matter is remanded for further proceedings. The costs of this appeal are assessed fifty percent to Regional Health System of Acadiana, LLC d/b/a Women's and Children's Hospital; Women's and Children's of Lafayette; Health Care Indemnity, Inc.; and HCA Holdings, Inc. and fifty percent to Lafayette General Health Systems, Inc. d/b/a Lafayette General Medical Center.

REVERSED AND REMANDED.

Keaty, J., dissents and assigns written reasons.

Gremillion, J., dissents for the reasosn assigned by Judge Keaty.

KEATY, Judge, dissenting.

I respectfully dissent from the majority opinion, and I would affirm the appealed judgment.

In the petition, Ms. Thomas alleged that "Dr. Dalal had all of the tests and clinical findings available to her in order to timely diagnose and treat baby Mariah Charles. Her failure to do so was a deviation from the accepted standard of medical care for pediatric cardiologists." Ms. Thomas further alleged that both LGMC and Women's and Children's "negligently credentialed Dr. Dalal and negligently provided her with privileges to practice in [their] hospital[s]."

As correctly noted in the majority opinion, the LMMA defines "malpractice" as:

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient , including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers , or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.R.S. 40:1231.1(A)(13) (emphasis added).

The majority relies heavily on the supreme court's analysis and holding in Billeaudeau v. Opelousas General Hospital Authority , 16-846 (La. 10/19/16), 218 So.3d 513, to support its finding that Ms. Thomas' allegations against the hospital defendants in this matter sounded in negligence such that the trial court erred in granting the exception of prescription brought by LGMC and Women's and Children's. After stating that "the only issue presented to this Court is whether plaintiffs' credentialing claim sounds in medical malpractice or in general negligence," the Billeaudeau court noted in footnote 9 that:

[T]he circuit cases to which [the defendant hospital] refers all involved mixed allegations of negligent credentialing and supervision or strictly negligent supervision claims and, thus, are clearly distinguishable from the present case, which currently proceeds in this Court strictly on negligent credentialing. See Talbert v. Evans , 11-1096 (La.App. 4 Cir. 3/7/12), 88 So.3d 673 ; Plaisance v. Our Lady of Lourdes Regional Med. Ctr., Inc. , 10-348 (La.App. 3 Cir. 10/6/10), 47 So.3d 17 ; Dinnat v. Texada , 09-665 (La.App. 3 Cir. 2/10/10), 30 So.3d 1139 ; Bickham v. Inphynet, Inc. , 03-1897 (La. 8/24/04), 899 So.2d 15.

Id. at 519.

In my opinion, the allegations made by Ms. Thomas herein are similar to those made by the plaintiffs in Plaisance , 47 So.3d 17. After considering the allegations in the plaintiffs' petition in light of the six-factor test pronounced in Coleman v. Deno , 01-1517, 01-1519, 01-1521 (La. 1/25/02), 813 So.2d 303, this court determined that the trial court did not err in granting the hospital defendant's exception of prematurity because the plaintiffs' claims sounded in medical malpractice rather than in negligence. Plaisance , 47 So.3d 17.

As written, I find that the majority's discussion of the Coleman factors is somewhat brief and conclusory. I believe that application of the Coleman test to the facts alleged in Ms. Thomas' petition leads to the same result as that which we reached in Plaisance . My belief is bolstered by a recent opinion handed down by the fifth circuit court of appeal.

In Matranga v. Parish Anesthesia of Jefferson, LLC , 17-73, (La.App. 5 Cir. 8/29/18), 254 So.3d 1238, the appellate court was tasked with reviewing a judgment sustaining an exception of prescription in favor of a hospital that was added as a defendant in a medical malpractice case that had been remanded to the trial court for a new trial. The plaintiffs in Matranga were the surviving children of a woman who died in June 2008, "six days after experiencing complications during her intubation for general anesthesia in preparation for elective heart surgery." Id. at 1240. The originally named defendants were the anesthesiologist and the certified registered nurse anesthetist who had attempted to intubate the decedent.

After a trial of the matter as to the claims against the original defendants, the jury returned a verdict in favor of defendants which the trial court adopted as the judgment of the court. Upon appeal by the [plaintiffs, the fifth circuit] reversed the judgment and remanded the matter for a new trial. Matranga [ v. Parish Anesthesia of Jefferson, LLC , 14-448 (La.App. 5 Cir. 5/14/15), 170 So.3d 1077, writs denied , 15-1143, 15-1168 (La. 9/18/15), 178 So.3d 148, 178 So.3d 152.]

Matranga , 254 So.3d at 1240-41. Thereafter, the plaintiffs:

filed a supplemental and amending petition in which they added [East Jefferson General Hospital (EJGH) ] as a defendant, alleging that it was negligent in its credentialing and privileging of [the defendant anesthesiologist] to practice anesthesiology in its hospital. In response, EJGH filed an exception of prescription which was sustained by the trial court.

Id. at 1241. On appeal of that judgment, the fifth circuit observed:

We recognize that the Louisiana Supreme Court, in Billeaudeau , [218 So.3d 513] distinguished between the "... 'supervision and training of the health care providers' once they enter the building and engage in the practice of medicine therein," which clearly falls under the definition of malpractice in the LMMA, and negligent credentialing and privileging that takes place in the hiring process when the physician first enters the hospital, which the Court found to be a claim in general negligence. Billeaudeau , 218 So.3d at 520-24. Consequently, ..., we find that, under the rational of Billeaudeau , the alleged negligent conduct of EJGH, in order to be characterized as negligent credentialing and privileging, is necessarily limited to the time period when [the defendant anesthesiologist] was hired to begin practicing at EJGH. Any later alleged negligent conduct of EJGH, and certainly any alleged negligent conduct of EJGH that was occurring contemporaneously with [the anesthesiologist's and the certified registered nurse anesthetist's] alleged medical malpractice in June 2008, would clearly be conduct within the ambit of "... training or supervision of health care providers ..." which falls squarely within the definition of medical malpractice.

Id. at 1246.

Here, Dr. Dalal was credentialed by LGMC approximately twenty-seven years before the conduct at issue took place. Accordingly, I conclude that Ms. Thomas' allegations against the hospital defendants in this matter necessarily encompass the "the training or supervision" of Dr. Dalal regardless of Ms. Thomas' having labeled her claims as "negligent credentialing." Accordingly, I would affirm the trial court's grant of the exceptions of prematurity brought by LGMC and Women's and Children's.

      Ms. Thomas' petition named this defendant as "The Regional Health System of Acadiana, LLC, and Women's & Children's Hospital, Inc." with the defendant responding in its exception of prematurity with its correct legal name.

      Ms. Thomas' petition named this defendant as "Lafayette General Medical Center, Inc. and/or Lafayette General Health System, Inc., d/b/a Lafayette General Medical Center.

      Ms. Thomas described a PDA as "a hole between the pulmonary artery[,] which transports oxygen depleted blood to the lungs[,] and the aorta[,] which brings oxygen rich blood to the body."

      In Coleman v. Deno , 01-1517, 01-1519, 01-1521, pp. 17-18 (La. 1/25/02), 813 So.2d 303, 315-16, the supreme court set out six factors for determining whether conduct by a health care provider constituted malpractice under the LMMA:
      1. whether the particular wrong is "treatment related" or caused by a dereliction of professional skill.
      2. whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached.
      3. whether the pertinent act or omission involved assessment of the patient's condition.
      4. whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
      5. whether the injury would have occurred if the patient had not sought treatment, and
      6. whether the tort alleged was intentional.


author: CRAIN, J. GUIDRY, J., dissenting.

text:
    Benny HERNANDEZ v. ASAP EMPLOYMENT SERVICE, INC., Louisiana Construction & Industry, CF Industries, and Excel Fab
    NUMBER 2017 CA 1437
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: October 18, 2018
    Benny Hernandez, Downsville, Louisiana, Claimant/Appellant In Proper Person
    Robert A. Dunkelman, Jessica D. Cassidy, Shreveport, Louisiana, Counsel for Defendant/Appellee Xcel Erectors, Inc.
    BEFORE: GUIDRY, PETTIGREW, CRAIN, THERIOT, AND PENZATO, JJ.
   CRAIN, J.

In this workers' compensation proceeding, Benny Hernandez appeals a judgment sustaining peremptory exceptions of prescription and res judicata , and dismissing his claims against Xcel Erectors, Inc. with prejudice. We affirm.

On September 16, 2014, Hernandez was injured while working at a plant in Donaldsonville, Louisiana. Hernandez, represented by counsel, filed a disputed claim for compensation against his employer, ASAP Employment Services, Inc., and ASAP's insurer, Louisiana Construction and Industry Self Insurers Fund ("LCI"). The parties negotiated a settlement, which was approved by the workers' compensation judge (WCJ), and Hernandez's claim was dismissed with prejudice on May 16, 2016.

Four months later, on September 15, 2016, Hernandez, appearing in proper person, filed another disputed claim for compensation based on the same accident, again naming ASAP and LCI as defendants. In an amendment filed on December 5, 2016, Hernandez included a claim against Xcel. Xcel responded with peremptory exceptions of prescription and res judicata , which, following a hearing, were sustained. In a judgment signed on August 7, 2017, Hernandez's claims against Xcel were dismissed with prejudice. Hernandez appeals.

A claim for workers' compensation indemnity benefits prescribes one year from the date of the accident or, if benefits have been paid, one year from the last payment or, for a claim for supplemental earnings benefits, three years from the last payment. See La. R.S. 23:1209A; Putman v. Quality Distribution, Inc., 11-0306 (La. App. 1 Cir. 9/30/11), 77 So.3d 318, 321. A claim for medical benefits prescribes one year after the accident or, if such payments have been made, three years from the date of the last payment. See La. R.S. 23:1209C. Prescription is interrupted by filing a formal claim with the office of workers' compensation. See La. R.S. 23:1209A(1) and B.

Hernandez's claim against Xcel was filed more than two years after the accident and does not allege the payment of any benefits. The claim is thus prescribed on its face. When a workers' compensation claim is prescribed on its face, the claimant bears the burden of showing prescription was suspended or interrupted in some manner. Borja v. FARA, 16-0055 (La. 10/19/16), 218 So.3d 1, 11. When, as here, evidence is received at the hearing on the exception, the appellate court reviews the WCJ's factual findings under the manifest error-clearly wrong standard of review. Theodore v. Iberville Parish School Board, 12-0746 (La. App. 1 Cir. 1/8/13), 112 So.3d 270, 271.

Hernandez introduced the following exhibits at the hearing: a page from an accident report issued on the day of the accident, September 16, 2014; a radiology report for a chest x-ray taken on September 18, 2014; a "Return to Work" form signed on September 22, 2014; a client contract with his attorney in the original proceeding dated May 1, 2015; a memorandum filed by Hernandez in opposition to the exception of prescription; and a letter from Hernandez's previous attorney summarizing a mediation conducted in the original proceeding. Additionally, Hernandez testified that Xcel paid one of his medical bills after the accident; however, he later acknowledged he did not know who paid the bill and was unable to obtain any records confirming such a payment.

The WCJ was not manifestly erroneous in finding Hernandez failed to prove an interruption or suspension of the prescriptive period applicable to his claim against Xcel. Hernandez's claim against Xcel is thus prescribed and was properly dismissed with prejudice. See La. R.S. 23:1209A(1); Gomez v. Our Lady of the Lake Regional Medical Center, 05-1916 (La. App. 1 Cir. 9/15/06), 943 So.2d 499 ; Ward v. McDermott, 04-1189 (La. App. 1 Cir. 6/10/05), 916 So.2d 246, 250. In light of this finding, we pretermit consideration of the alternative exception of res judicata. This memorandum opinion is issued in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1B. Costs of this appeal are assessed to Benny Hernandez.

AFFIRMED.

Guidry, J., Dissents and assigns reasons.

Pettigrew, J., dissents

GUIDRY, J., dissenting.

It is a well-settled principle that the provisions of the workers' compensation scheme should be liberally interpreted in favor of the worker. Gomon v. Melancon, 06-2444, p. 4 (La. App. 1st Cir. 3/28/07), 960 So.2d 982, 984, writ denied, 07-1567 (La. 9/14/07), 963 So.2d 1005. The standard controlling review of an objection of prescription requires that the court of appeal strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Naquin v. Bollinger Shipyards, Inc., 11-1217, p. 4 (La. App. 1st Cir. 9/7/12), 102 So.3d 875, 878, writs denied, 12-2676, 12-2754 (La. 2/8/13), 108 So.3d 87, 93. Louisiana Revised Statute 23:1317(A) provides that a workers' compensation judge is not bound by technical rules of evidence or procedure other than as provided by workers' compensation law. So while all findings of fact must be based upon competent evidence, the judge is to decide the merits of a controversy equitably, summarily, and simply. The jurisprudence states that the legislative intent behind La. R.S. 23:1317 is to materially relax evidentiary and procedural rules and subordinate procedural considerations to discovery of the truth and protection of substantial rights. Peters v. Ruskin Manufacturing, 39,535, p. 4 (La. App. 2d Cir. 4/6/05), 899 So.2d 780, 782-83.

Thus, considering the summary nature of the proceedings below and the fact that Mr. Hernandez has litigated this matter as a self-represented party, I believe the majority errs in failing to consider the objection of prescription in light of the entire record. See Sprowl v. Taylor, 07-857 (La. App. 3d Cir. 1/30/08), 2008 WL 241574, at *1 (wherein the court stated relative to the appeal of a pro se litigant, "we will examine the record using the applicable standard of review to determine whether the judgment of the trial court was reasonable in light of the record in its entirety"). At the hearing on its exceptions, counsel for Xcel acknowledged that Mr. Hernandez had previously filed a tort suit against the company premised on the September 16, 2014 accident. Counsel further introduced documentation from the tort proceedings that established that the tort suit was still pending not only when Mr. Hernandez filed the underlying disputed claim, but also when he amended the disputed claim to name Xcel as a defendant. See Isaac v. Lathan, 01-2639, p. 6 (La. App. 1st Cir. 11/8/02), 836 So.2d 191, 195 (wherein this court concluded that where both the tort action and workers' compensation action against the defendant were based on the same occurrence and where the defendant had notice of the factual elements of the action, the timely-filed tort action against the defendant interrupted prescription as to the subsequent workers' compensation claim against the same defendant). Additionally, a stamped copy of the petition in the tort suit to which Xcel acknowledged being a party is contained in the record and shows that the tort suit was fax filed on September 16, 2015.

Hence, as the record reveals the existence of a previously-filed, timely tort suit based on the September 16, 2014 accident, I believe the majority's affirmance of the judgment sustaining the peremptory exception raising the objection of prescription is clear error, and for these reasons, I respectfully dissent.

      Certain exceptions, not applicable herein, apply to injuries that do not immediately manifest after the accident. See La. R.S. 23:1209A(3)-(4).

      We note the suit record contains references to a tort suit filed by Hernandez against Xcel apparently based on the same accident. Although a timely-filed tort suit may, in some instances, interrupt prescription for a workers' compensation claim arising out of the same circumstances, the record contains no evidence of the filing date for the tort claim against Xcel. Instead, the record contains only a copy of a petition filed against an unrelated party who was later dismissed from that proceeding. The record does not reveal when Xcel was added as a party to that suit. Hernandez thus failed to prove he timely filed a tort suit against Xcel that interrupted prescription for his workers' compensation claim. Compare Isaac v. Lathan, 01-2639 (La. App. 1 Cir. 11/8/02), 836 So.2d 191, 195.

      The documentation introduced into evidence by Xcel included reasons and a judgment dated February 22, 2017, wherein the Twenty-Third Judicial District Court (23rd JDC) dismissed with prejudice Mr. Hernandez's tort claims against SPX Cooling Technologies, Inc., Excel Erectors, Inc., and James Meidl. Although Xcel is referred to as "Excel" in the tort proceedings, it was indicated that both companies are one and the same at the hearing before the WCJ.

      While the party named in the petition was not Xcel and that party was eventually dismissed from the tort suit on July 8, 2016, the record also reveals that prior to the tort suit, Mr. Hernandez's filed a worker's compensation action on November 14, 2014, which was not dismissed until May 16, 2016. It has been held that a workers' compensation suit can likewise interrupt prescription on a tort suit, and that solidary liability can exist as to direct and statutory employers. See Parker v. Southern American Insurance Co., 590 So.2d 55 (La. 1991). Moreover, the interruption of prescription as to one joint tortfeasor is effective to all joint tortfeasors. La. C.C. art. 2324(C). Hence, in light of Xcel's admission that it remained a party to the tort suit at the time Mr. Hernandez filed his second claim for workers' compensation, I do not believe evidence of exactly when Xcel was added to the tort suit is needed. See Parker, 590 So.2d 55 ; Isaac, 01-2639 at p. 8, 836 So.2d at 196.