Holliday v. State - 98-2196 ( La. App. 1 Cir 12/28/99), 747 So. 2d 755

Rule:

The Court of Appeal of Louisiana, First Circuit, holds that where an injury is specifically excluded from the scope of the compensation scheme of the Louisiana Workers' Compensation Act, La. Rev. Stat. Ann. § 23:1032, the exclusivity provision of the compensation law does not apply, and the employer is not immune from a tort suit based on that injury.

Facts:

Several days before the incident, victim Andrea Wright asked her supervisor at the State of Louisiana Office of Financial Assistance for time off to obtain a restraining order against her husband because they were involved in an ongoing personal dispute, unrelated to her employment, and because her husband threatened to kill her. On November 29, 1996, Donald Ray Wright telephoned Andrea at work and told her he was coming to the office to kill her. Andrea told her supervisor, who escorted her to an office where Andrea telephoned the police. At approximately 1:58 p.m., she spoke with an officer and beseeched him to send someone to help her because her husband threatened to kill her. A sergeant informed her the police could not respond to her call unless she had a restraining order in her possession. Andrea then telephoned her mother, Lottie Holliday, to bring the restraining order to the building. At approximately 2:20 p.m., Donald Ray Wright arrived at the Wooddale office building and proceeded without delay to the fifth floor, where Andrea worked, sought Andrea out and shot her six times. Holliday arrived at the building with the restraining order while the shooting was in progress. At the time Andrea was killed, she was four months pregnant.

Holliday sought wrongful death damages for the death of Andrea and the unborn fetus on behalf of Andrea's four surviving children. Additionally, Holliday sought to recover her own LeJuene-type damages based on her presence at the scene when the fatal shooting occurred, and made a claim for these type of damages on behalf of one of the minor children who was also at the scene at the time of the shooting. Holliday averred, among others, the state was negligent for, among other things, failing to provide adequate security and failing to protect Andrea from the criminal attack despite the knowledge of her supervisors of the impending nature of the attack. The state filed a motion for summary judgment claiming plaintiff is precluded from pursuing a tort remedy against the state pursuant to the exclusivity provision of the Louisiana Workers' Compensation Act. Holliday filed a motion for partial summary judgment, asserting La. R.S. 23:1032 does not bar this tort suit against the state because the injury to Andrea Wright is not compensable under the workers' compensation law. The trial judge granted Holliday’s motion for partial summary judgment and denied the state's motion for summary judgment.

Issue:

May the State of Louisiana as the employer in the instant case invoke the immunity provision of the worker’s compensation law?

Answer:

No.

Conclusion:

It is undisputed that Andrea was shot by her husband during the course of her employment. There has been no suggestion by the state that this shooting was in any way related to Andrea's employment other than the fact it occurred at the workplace. This shooting clearly arose from a personal dispute between Andrea and Donald Ray Wright. La. R.S. 23:1031E clearly provides: “An injury by accident should not be considered as having arisen out of the employment and thereby not covered by the provisions of this Chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee's employment.” Further, the Louisiana Supreme Court held in Guillory v. Interstate Gas Station, a case with a similar fact pattern, that “Injuries arising from a dispute with another person which is unrelated to the plaintiff's employment do not "arise out of the employment" and are therefore not covered by the workers' compensation remedy. Thus, the compensation act specifically excluded the shooting of Andrea Wright from the scope of its coverage as it arose from a dispute between Andrea and Donald Ray Wright that was unrelated to Andrea's employment. As the compensation act itself did not cover the shooting death of Andrea Wright, Holliday is not barred from bringing this tort suit against her employer. The exclusivity provision makes the compensation remedy exclusive only with respect to those injuries for which an employee is entitled to workers' compensation benefits.