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Deshotel v. Guichard Operating Co.12/17/2004
ed O'Regan to proceed in tort against her employer because her injuries placed her outside of the scope of the Act. Id. As this Court stated in O'Regan, "a conceptual distinction must be made between injuries which do not come within the Act's coverage provisions and injuries which are covered, but for which no compensation is payable." Id. at 137.
In the instant matter, Mr. Deshotel's tragic death is clearly the result of an "accident" which occurred during the course and scope of his employment as defined by LSA 23:1031. LSA 23:1031 provides that where an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated. [emphasis supplied].
Here, Mr. Deshotel was a passenger in a truck owned by Guichard and operated by another Guichard employee in the company's parking lot. There is no question he was within the course and scope of his employment when this "accident" occurred. Since Mr. Deshotel's accident is covered by the Act's compensation scheme O'Regan is inapplicable. The fatal injuries sustained by Mr. Deshotel are cognizable as included within the Act's compensation scheme, however, the statute excludes his adult, non-dependant children from recovering compensation benefits. Thus, plaintiffs' assertion that Atchinson is inconsistent with our recent ruling in O'Regan is without merit.
III.
Further, plaintiffs' contend that their action is not subject to the exclusive remedy provisions of LSA-R.S. 23:1032 because this Court has held that wrongful death actions are independent of the victim's injury and compensate survivors for their own damages. While we acknowledge that wrongful death actions are separate from the employee's action for damages, we find that plaintiffs are nevertheless precluded from maintaining a claim for tort damages because Section 1032 immunizes defendants from such suits.
Plaintiffs' rely upon Walls v. American Optical Corp., 98-0455, (La. 9/8/99), 740 So.2d 1262 to support their argument; however, such reliance is misplaced. Under the facts present in Walls, the decedent was employed as a sandblaster for approximately six years. Walls, 740 So.2d 1262, 1264. During the course and scope of his employment, he was exposed to silica dust, which is created during sandblasting. Id. at 1264. After Wall's death, his widow alleged that his occupational exposure to silica dust caused him to contract silicosis, and filed a wrongful death suit under Article 2315.2 against the executive officers of American Optical. Id. Mrs. Walls attempted to bring her wrongful death claim after the legislature amended La. R.S. 23:1032, which granted tort immunity to executive officers for their negligent conduct. Id. This Court acknowledged that the text of Article 2315.2 "clearly and unambiguously expresses that the wrongful death action compensates the beneficiaries for their own injuries suffered as a result of the victim's death." Walls, 740 So.2d 1262, 1269-70.
However, Mrs. Walls was ultimately unable to prevail in her wrongful death action because in such a suit the cause of action does not arise until the moment the victim expires; which, under those facts, did not occur until after the amendment of La. R.S. 23:1092. Id. at 1270. Thus, we found that the prospective application of La. R.S. 23:1092 immunized the executive officers from a tort action; and further, that a grant of the defendants' exception of no cause of action and motion for partial summary judgment was proper. Id. As we noted in Walls, "The federal constit
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