In a recent case issued by the Court of Appeals of Louisiana, Fourth Circuit, a plaintiff employed by the State of Louisiana, Department of Wildlife and Fisheries, sustained cervical spine injuries while he was a member of the crew of a state owned vessel. At the time of his injury, he was patrolling waters near the Head of Passes in Plaquemines Parish. The plaintiff filed a petition for damages seeking relief under the Jones Act and general maritime law. In response, the State filed a peremptory exception, asserting that the plaintiff’s sole exclusive remedy lied in Louisiana workers’ compensation law. The Fourth Circuit disagreed.
The plaintiff relied on two earlier decisions to support his proposition that he could seek relief outside of the scope of the of the Louisiana Workers’ Compensation Act (“LWCA”). In Higgins v. State of Louisiana, 627 So.2d 217 (La. App. 4 Cir. 1993), the court determined that an injured State employee could sue the State under the Jones Act and general maritime law. Further, the court determined that the State could not limit rights and remedies afforded under the savings to suitors clause, and that the LWCA and Jones Act were mutually exclusive. In so holding, the court relied on an earlier unpublished decision, Cosey v. Dep’t of Transp. and Dev., et. a., unpub., 92-C-2619 (La. App. 4 Cir. 11/20/92) writ denied, 618 So.2d 407 (La. 1993).
The State found support for its arguments in the Fourth Circuit’s 2009 decision, Kuebel v. Dept. of Wildlife & Fisheries, 2008-1018 (La. App. 4 Cir. 4/15/09), 14 So.3d 20, which the Fourth Circuit published only one-and-a-half years earlier. In Kuebel, the court determined that a State employee could not bring a suit against Louisiana without the State’s consent. This holding rested on the U.S. Supreme Court’s “Alden trilogy,” as well as interpretations of the LWCA and the Louisiana Constitution.
The Fourth Circuit distinguished the present case from the cases in the “Alden trilogy” by determining that the State of Louisiana waived its sovereign immunity in Article XII, Section 10(A) of the Louisiana Constitution: “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” Further, by analyzing Louisiana Revised Statute 23:1035.2, the court determined that the LWCA did not preclude suits under the Jones Act or general maritime law. The LWCA and the Jones Act were mutually exclusive remedies. Finally, the Fourth Circuit expressly overruled its Kuebel decision, opting instead to follow Higgins and Cosey.
Fulmer v. State, Dep’t of Wildlife and Fisheries, 10-CA-0088 (La. App. 4 Cir. 10/06/10); — So.3d —-, 2010 WL 3911318.
Note: the Fulmer decision generated a vigorous and spirited dissent from Judge Belsome, who authored the Kuebel decision.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)