Phillips v. Joseph Management Services11/12/2003
AMENDED AND AFFIRMED
In this workers' compensation suit, the employers appeal the judgment finding a deceased worker's parents eligible for funeral expenses and benefits under the Louisiana Workers' Compensation Act. For the following reasons, we amend the workers' compensation judge's ruling and affirm as amended.
FACTS AND PROCEDURAL HISTORY
Joseph Phillips, Jr. ("Phillips, Jr.") was killed when he fell from a tow boat, the "Ms. Pauline," and drowned in Barataria Channel in Jefferson Parish on October 7, 2002. At the time of his death, Joseph Phillips Jr. was part owner of, and employed by, J.P. & Sons, Inc., a contracting business located in Jefferson Parish. Phillips, Jr. was engaged in the course and scope of his employment with J.P. & Sons, Inc. at the time of his death.
Joseph and Pauline Phillips ("the Phillips"), the parents of Joseph Phillips, Jr., sought funeral expenses and benefits under the Louisiana Workers' Compensation Act from their workers' compensation carrier, Gray Insurance Company. Gray denied coverage on the basis that it felt the action was more properly covered by either the Longshore and Harbor Worker's Compensation Act ("LWHCA"), or the Jones Act.
The Phillips thereafter filed a Disputed Claim with the Office of Worker's Compensation against appellants, Joseph Management Services, Inc and J.P. & Sons, ("Employers"). Employers filed a peremptory exception of lack of subject matter jurisdiction, which was denied on March 18, 2003.
Trial on the matter began on April 14, 2003. At the conclusion of the trial, the worker's compensation Hearing Officer ruled in favor of the Phillips, awarding $75,000 each, as well as funeral expenses.
Appellants timely filed the present appeal, and the Phillips, in their answer to the appeal, further petitioned this court to award attorney's fees, penalties, the cost of the proceedings, and legal interest.
LAW AND ARGUMENT
In their first assignment of error, Phillips, Jr.'s former Employers assert that the trial court erred in finding LWCA jurisdiction and awarding benefits, arguing that the maritime quality of Philips Jr.'s activities should compel a finding that Phillips Jr. was covered by either the LHWCA or Jones Act, which forecloses LWCA jurisdiction and an award of LWCA benefits.
LSA-R.S 23:1035.2 states:
No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer's Liability Act, the Longshoremen's and Harbor Worker's Compensation Act, or any of its extensions, or the Jones Act.
We first consider whether Phillips, Jr.'s job duties with his Employers were of such a nature that an injury sustained in the course of performing these duties would have placed him within the jurisdiction of the LHWCA or the Jones Act.
At trial, the following evidence was adduced regarding Phillips, Jr.'s daily work duties.
Gerald Spohrer, Executive Director of the West Jefferson Levee District, testified that he initially worked with Phillips, Jr. in the process of renewing levee district permits that had been issued to J.P. & Sons, and subsequently worked with him on various levee projects, all of which were land based. Spohrer has the impression that Phillips, Jr., "ran" J.P.& Sons, because he saw Phillips, Jr. "in the field," in a supervisory capacity, managing crews and equipment.
Max Mega, Vice President of Audit for the Gray Insurance Company testified that Gray had worker's compensation insurance on J.P.& Sons for a three year policy. An audit was conducted of J.P.& Sons on J
Page 1 2 3 4 5 6 Louisiana Employee Leasing Services
Employee Leasing Services
|