Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 03-08-2022

Case Style:


Case Number: 18-587 consolidated with 18-588

Judge: Ulysses Gene Thibodeaux




Plaintiff's Attorney:

Lake Charles, LA – Best Personal Injury Lawyer Directory

Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.

Re: MoreLaw National Jury Verdict and Settlement


MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.

MoreLaw will publish litigation reports submitted by you free of charge

Info@MoreLaw.com - 855-853-4800

Defendant's Attorney: Julius Willis Grubbs, Jr.
J. P. D’Albor

Dennis Ray Stevens
Gibbens & Stevens


Lake Charles, LA - Personal Injury lawyer represented Appellants with seeking damages for injuries.

Melvin and Triege Guidry filed suit against Larsen Intermodal
Services, Inc. (“Larsen”) seeking damages for injuries Mr. Guidry sustained while
loading/unloading metal products from a tractor/trailer truck. Because the injury
was sustained in the course and scope of his employment, Mr. Guidry also filed a
workers’ compensation claim against his employer, Louisiana Scrap Metal
Recycling (Louisiana Scrap). The Guidrys’ suit against Larsen was subsequently
dismissed on Larsen’s exception of prescription.
Thereafter, Louisiana Scrap and its workers’ compensation insurer, The
Hartford Fire Insurance Company (Hartford), filed a petition of intervention, seeking
to intervene in the Guidrys’ dismissed suit and requesting reimbursement from
Larsen for compensation paid to Mr. Guidry. At the same time, Louisiana
Scrap/Hartford filed a separate suit directly against Larsen, likewise seeking
reimbursement for compensation paid to Mr. Guidry. Larsen filed exceptions of
prescription in both suits. In opposition, Louisiana Scrap/Hartford argued that,
because Louisiana Scrap and Larsen are solidarily obligated to Mr. Guidry, Mr.
Guidry’s timely-filed workers’ compensation claim against Louisiana Scrap
interrupted prescription on Louisiana Scrap’s/Hartford’s suit against Larsen. After
a hearing, the trial court granted the exceptions.
Louisiana Scrap/Hartford appealed the judgment, dismissing their
intervention, in docket number 18-587, and the judgment, dismissing their separate
suit, in docket number 18-588. Upon Larsen’s motion, this court consolidated the
two appeals.
Having reviewed the record, we find the trial court did not err in
granting Larsen’s exceptions of prescription or in its reliance upon this court’s
holding in Deculus v. Augenstein Construction Co., Inc., 425 So.2d 315 (La.App. 3
Cir. 1982), writ denied, 430 So.2d 658 (La.1983). Accordingly, we affirm.
Louisiana Scrap/Hartford raise a single issue for this court’s
Does a timely filed workers’ compensation claim
against [] an employer/insurer interrupt prescription as to
the subsequent claim of the employer/insurer against the
third party tortfeasor for the recovery of workers’
compensation benefits paid to or on behalf of the
We answer in the negative for the reasons that follow.
On August 2, 2012, Mr. Guidry, while employed by Louisiana Scrap,
was operating a forklift, transporting various metal products into the container
portion of a tractor/trailer truck. The truck had been delivered to Louisiana Scrap
by Larsen and was, at all pertinent times, in Larsen’s possession and control. During
the loading/unloading process, the container portion of the truck became disengaged
from the ramp, allegedly due to a Larsen employee’s failure to properly secure the
ramp. The forklift then fell about a foot off the edge of the container, causing injuries
to Mr. Guidry for which Louisiana Scrap was required to pay both indemnity and
medical benefits in workers’ compensation.
Mr. Guidry filed his disputed claim for workers’ compensation against
Louisiana Scrap in April 2013. The Guidrys then filed a third-party tortfeasor suit
in this matter on August 2, 2013. In their petition, the Guidrys named two fictitious
entities as defendants: (1) ABC Trucking Company (the owner or lessor of the
tractor/trailer truck), and (2) XYZ insurance company (the insurer of ABC Trucking
Because only fictitious entities were named as defendants, the original
petition was not served on Larsen or any other entity. Almost three months later, on
October 31, 2013, the Guidrys amended their petition, substituting Larsen for ABC
Trucking Company. Service was requested on Larsen at that time but was not
effected until December 4, 2013. Larsen then filed an exception of prescription,
which was heard and granted on May 12, 2014. On that same date, the trial court
executed a judgment, dismissing the Guidrys’ suit, with prejudice.
The Guidrys fax filed their motion and order for devolutive appeal on
July 15, 2014. However, the appeal was subsequently dismissed, by judgment
signed on October 20, 2014, on the grounds of abandonment for failure to pay costs.
Meanwhile, on July 11, 2014, Louisiana Scrap/Hartford fax filed a
petition for intervention in the previously dismissed suit, seeking reimbursement for
compensation and medical benefits paid to and on behalf of Mr. Guidry in
connection with the August 2, 2012 accident. That same day, Louisiana
Scrap/Hartford fax filed a separate suit against Larsen, likewise seeking
reimbursement for compensation and benefits paid to Mr. Guidry.
On January 25, 2018, Larsen filed exceptions of no cause of action and
prescription, seeking dismissal of the intervention. It also filed exceptions of lis
pendens, no cause of action, and prescription in the separate suit. All of the
exceptions were heard on March 26, 2018, at which time the trial court, relying on
this court’s holding in Deculus, 425 So.2d 315, sustained both exceptions of
prescription and denied, as moot, the remaining exceptions. Judgments dismissing
both actions were signed on April 9, 2018.1
In Allain v. Tripple B Holding, LLC, 13-673, pp. 9-10 (La.App. 3 Cir.
12/11/13), 128 So.3d 1278, 1285, this court discussed the standard an appellate court
applies in reviewing an exception of prescription:
Prescription is a peremptory exception which is
provided for in La.Code Civ.P. art. 927. Evidence in
support or contravention of the exception may be
introduced if the grounds are not apparent from the
petition. La.Code Civ.P. art. 931. An appellate court
reviews the exception under the manifest error standard of
review if evidence is introduced in support or
contravention of the exception. Dugas v. Bayou Teche
Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d
826. If not, the appellate court “simply determines
whether the trial court’s finding was legally correct.” Id.
at 830. Generally, the burden of proof lies on the party
pleading the exception of prescription. Id. However, if it
is apparent from the face of the pleadings that prescription
has occurred, the burden shifts to the plaintiff to show that
the action has not prescribed. Id.

1Although Louisiana Scrap/Hartford appealed both judgments, they have failed to brief any
issues related to the dismissal of their petition for intervention. Accordingly, pursuant to Uniform
Rules—Courts of Appeal, Rule 2-12.4(B)(4), we “consider as abandoned any assignment of error
or issue for review” related to their intervention. Further discussion of these issues is hereby
Our supreme court has long held that the cause of action at issue herein
is subject to the one-year period of liberative prescription applicable to delictual
actions, which commences to run from the date of injury:
[The] cause of action against the tortfeasor for the injuries
sustained by the employee, which may be instituted either
by the employee himself or the employer for
reimbursement of compensation paid, . . . is governed by
the prescription of one year set forth in Article [3492] of
the Civil Code. This prescription . . . commences to run
from the date on which the damage was inflicted.
Marquette Cas. Co. v. Brown, 235 La. 245, 253-54, 103 So.2d 269, 272-73 (1958).
According to the petition, the accident giving rise to Mr. Guidry’s
injuries occurred on August 2, 2012. Significantly, Louisiana Scrap/Hartford did
not file their petition against Larsen until July 15, 2014, almost two years later. As
a result, it is apparent from the face of the petition that prescription has run. The
burden then fell to Louisiana Scrap/Hartford to show that their action has not
prescribed. To do so, Louisiana Scrap/Hartford attempted to prove that prescription
was interrupted by Mr. Guidry’s workers’ compensation claim filed in April 2013.
In their argument to the trial court, as well as to this court, Louisiana
Scrap/Hartford have asserted that Louisiana Scrap and Larsen are solidary obligors
as to the injured employee, Mr. Guidry. Therefore, Mr. Guidry’s timely-filed
workers’ compensation claim against Louisiana Scrap interrupted prescription as to
Louisiana Scrap/Hartford’s claim against Larsen for the recovery of workers’
compensation benefits paid to or on behalf of Mr. Guidry. As authority, Louisiana
Scrap/Hartford have relied exclusively on Williams v. Sewerage & Water Board of
New Orleans, 611 So.2d 1383 (La.1993).
In Williams, an employee, while in the course and scope of his
employment with the Sewerage and Water Board of New Orleans (S&WB), was
fatally electrocuted when he touched a crane that came in contact with an overhead
power line on September 2, 1986. His surviving widow and five major children filed
suit against S&WB on August 31, 1987, seeking workers’ compensation death
benefits and tort damages. They also named as defendants the owner of the power
line and “ABC Corporation,” the manufacturer of the crane. But it was not until
their third amended and supplemental petition, filed on August 26, 1988, that the
plaintiffs properly named Little Giant as the crane’s manufacturer. Little Giant then
filed an exception of prescription, which the trial court denied.
Reviewing the appellate court’s reversal of the trial court’s denial of the
exception, the supreme court held:
This case presents the issue of whether an employer
sued for recovery of worker’s compensation is solidarily
bound with a third party tort-feasor for the purpose of
interrupting prescription. Because some elements of the
damages recoverable from the employer and the tortfeasor are coextensive, we find that they are solidarily
bound to that extent. Once prescription is interrupted
based on this solidarity, the plaintiffs are free to assert
whatever claims they have against the defendants. Thus,
in this case, a suit timely filed against the employer for
worker’s compensation interrupted prescription as to the
subsequent claim against the third party tort-feasor for
Id. at 1384-85.
In the language recited above, the Williams court specifically held that
the plaintiffs’ timely-filed suit against an employer for workers’ compensation
interrupted prescription as to the plaintiffs’ claim against a third-party tortfeasor.
Louisiana Scrap/Hartford, however, seek to extend this holding to allow an
employee’s/plaintiff’s timely-filed workers’ compensation claim against his
employer/defendant to interrupt prescription as to the employer’s/defendant’s claim
for reimbursement against the third-party tortfeasor. We, like the trial court, find
that such an extension is not warranted and that Louisiana Scrap’s/Hartford’s
reliance upon Williams is misplaced in light of the facts herein.
This is particularly sound given this court’s decision in Deculus, 425
So.2d 315, wherein the court was asked to determine whether an employer’s thirdparty demand against the alleged tortfeasor for reimbursement had prescribed. In
that case, the employee, Deculus, filed suit on January 6, 1978, against his employer,
Augenstein Construction Co., Inc. (Augenstein), for workers’ compensation.
Deculus alleged that he experienced numerous medical problems resulting from the
inhalation of chemicals, gases, and fumes emitted by an Olin Corporation (Olin)
plant, which rendered him totally and permanently disabled and ultimately forced
him to terminate his employment on March 14, 1977. Over three years later, on
September 25, 1980, the employer filed its third-party demand, naming Olin as a
third-party defendant. In response, Olin filed an exception of prescription, which
the trial court sustained. This court affirmed the trial court’s judgment, reasoning:
On the basis of these holdings we conclude that for
the purposes of prescription and LSA-R.S. 23:1101-03
there is only one principal cause of action which may be
asserted by the employer or the employee. Prescription
begins to run on this action from the day the damage is
inflicted by the tort-feasor. The failure of the employer or
the employee to assert its claim within the one year
prescriptive period provided by LSA-C.C. Article [3492]
is fatal to their claim.
Augenstein’s third party demand was not filed until
September 25, 1980. The latest date that one might
interpret as being the date in which the damage was
inflicted by Olin was March 14, 1977, the date of Deculus’
termination. Therefore, over three and one-half years
lapsed before suit was filed by Augenstein against Olin.
Deculus asserted no claim against Olin during this three
and one-half year period that would interrupt prescription
for the employer’s assertion of its rights. Hence,
Augenstein’s right to assert a claim against the alleged
third party tort-feasor, Olin, has prescribed.
Id. at 317.
As the record shows, Louisiana Scrap/Hartford waited until almost two
years after the August 2, 2012 accident to file their claim against Larsen. And,
although the Guidrys did attempt to file suit against Larsen, their claim was
dismissed on the basis of prescription. Consequently, the Guidrys’ prescribed claim
could no more interrupt prescription on Louisiana Scrap’s/Hartford’s assertion of
their right for reimbursement against Larsen than it could interrupt prescription on
the Guidrys’ assertion of their own rights against Larsen. It follows, therefore, that
because neither the employee nor the employer properly asserted a claim against
Larsen within the one-year prescriptive period that would serve to interrupt
prescription, Louisiana Scrap’s/Hartford’s right to assert their claim for
reimbursement against Larsen has prescribed.
Based on this reasoning, we find the trial court properly dismissed
Louisiana Scrap’s/Hartford’s separate suit against Larsen on the basis of
prescription. Accordingly, we affirm the judgments of the trial court

Outcome: For the foregoing reasons, the judgments of the trial court granting
Larsen’s exceptions of prescription are affirmed.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case