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Walker v. Acadian Builders of Gonzales11/8/2002
Judge William F. Kline, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.
This workers' compensation case involves two separate claims for death benefits. Cortanna Rene Beecham (first appellant) and Linda Walker (second appellant) appeal from a judgment of the Louisiana Office of Workers' Compensation in favor of Acadian Builders of Gonzales, Inc. The workers' compensation judge, Anthony P. Palermo, denied both appellants' claims for death benefits, finding that the decedent was not in the course and scope of his employment at the time of his death. For the reasons that follow, we affirm the judgment of the WCJ.
FACTS AND PROCEDURAL BACKGROUND
The decedent, Charles Walker, worked for Mary Fox Digging, a company that was under contract with Acadian Builders of Gonzales, Inc. to dig foundations for construction of new private residences in the Pelican Point golf course development. Their employer, Mrs. Fox, provided transportation to and from the work site to Mr. Walker and his co employees. Near the end of the workday on June 13, 1997, the crew "knocked off" early because of rain. While waiting for transportation home, Mr. Walker jumped in a nearby golf course pond and drowned.
Mr. Walker's parents, Linda Walker and Charles Robinson, filed the initial lawsuit in this matter. Their suit, seeking workers' compensation living ascendant death benefits, was filed against Acadian Builders as the statutory employer because Mary Fox Digging, the direct employer, was uninsured and failed to pay any benefits. The employer and its insurer filed a motion for summary judgment, which was granted. The WC] determined that Mr. Walker's employment did not include the risk that he might swim in a golf course pond adjacent to the job site. Therefore, the WC] held that Mr. Walker was not in the course of his employment. On appeal, a five-person panel of this court found the existence of "material factual issues critical to the determination of the parameters of the course and scope of Mr. Walker's work," and reversed the granting of summary judgment. Walker v. Acadian Builders of Gonzales, Inc., 99-0297 (La. App. 1 Cir. 5/19/00) 797 So.2d 690, 694. In so ruling, this court noted as follows:
The trial court, in the instant case, did not grant the motion for summary judgment on the basis that the employee's action constituted horseplay; nor was summary judgment granted on the basis that Mr. Walker was engaging in action that had been expressly prohibited. Rather, the court premised its decision on the basis that the act of swimming in an adjacent golf pond, immediately after completing manual labor and prior to departing, is not an activity that would be reasonably expected. Id., 797 So.2d at 693.
Accordingly, this court remanded the matter for further proceedings.
Prior to the trial on remand, Cortanna Rene Beecham intervened as a third party plaintiff on behalf of the decedent's alleged illegitimate minor son, Devante Noel Beecham. She sought dependent descendant benefits fog the minor. On the day of trial, April 25, 2001, Linda Walker and Charles Robinson filed a peremptory exception alleging that Cortanna Beecham had no right or cause of action to claim death benefits on behalf of Devante Beecham, as he was never "formally" acknowledged by Charles Walker.
Following a trial of the matter and the submission of post-trial memorandums, the WCJ denied the claims of all plaintiffs, finding that the claimants failed to prove that Charles Walker was in the course and scope of his employment at the time of his death. These appeals by Cortanna Rene Beecham and Linda Walker followed.
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