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SEYMORE SIMMONS,                                                                       *   NO. 2009-CA-1739
INDIVIDUALLY AND ON
BEHALF OF HIS DECEASED                                                                 *   COURT OF APPEAL
WIFE, ROBIN SIMMONS,
WAYNE THOMAS, JR.,                                                                     *   FOURTH CIRCUIT
INDIVIDUALLY AND ON
BEHALF OF HIS DECEASED                                                                 *   STATE OF LOUISIANA
MOTHER, ROBIN SIMMONS,
JUSTIN THOMAS                                                                          *
INDIVIDUALLY AND ON
BEHALF OF HIS DECEASED                                                                 *
MOTHER, ROBIN SIMMONS                                                                  *
AND WAYNE THOMAS, SR.,
NATURAL TUTOR, ON
BEHALF OF HIS MINOR
CHILD JIRUS THOMAS,
INDIVIDUALLY AND ON
BEHALF OF HIS DECEASED
MOTHER, ROBIN SIMMONS
VERSUS
BAUMER FOODS, INC., TASK
FORCE STAFFING SERVICES,
INC., ZURICH INSURANCE
COMPANY, AND NATIONAL
UNION FIRE-PITTSBURGH
INSURANCE COMPANY
MURRAY, J., CONCURS IN PART AND DISSENTS IN PART WITH
REASONS
Although I agree with the majority’s conclusion that the exceptional
circumstances exception to res judicata applies, I disagree with the majority’s
extension of that exception to American Zurich, Baumer Food’s commercial
general liability insurer.  For the reasons that follow, I would reverse the trial
court’s ruling sustaining the res judicata exception as to all the defendants except
American Zurich.
In order to provide a background for discussing the issues presented, a brief
chronology of the facts is necessary.  At about 3:00 p.m. on May 4, 2005, Robin
Simmons and her husband, Seymore Simmons, who was also employed at Baumer
Foods, reported for their shift. (Mrs. Simmons’ actual employer was Task Force;




she was working as a temporary worker at Baumer Foods.)  Shortly thereafter,
Mrs. Simmons began complaining of chest pain. As a result, her supervisor
escorted her into a plant manager’s office.  For the next two hours the only action
the employer took was to inquire regarding whether Mrs. Simmons had health
insurance.  Apparently due to her lack of health insurance, the employer called
neither 911 nor an ambulance.  At about 5:00 p.m., the shift manager, Ricardo
Vazquez, drove Mrs. Simmons in his own vehicle to the hospital.  Mr. Simmons
followed on his bicycle.  Mr. Vazquez dropped Mrs. Simmons off in the
ambulance bay of the hospital in a wheel chair and returned to work.  Three hours
after her symptoms began, at about 6:00 p.m., Mrs. Simmons died.  Mr. Simmons
did not locate his wife at the hospital until after she had died.
Mrs. Simmons’ heirs unsuccessfully have attempted to pursue a wrongful
death and survival claim in two forums:  Civil District Court (“CDC”) and the
Office of Workers’ Compensation (“OWC”).  In both forums, they have asserted
claims against the following defendants:  Mrs. Simmon’s direct employer, Task
Force; her statutory employer, Baumer Foods; and the respective insurers.  The gist
of the plaintiffs’ claim is not that Mrs. Simmons’ work caused her heart attack, but
rather that she had a heart attack at work and died because her employer (Baumer
Foods and/or Task Force) did nothing to help her—failed to administer first aid
and failed to call for emergency help.  This claim is supported by the known fact
that the sooner one receives treatment for a heart attack the better his or her
chances of surviving.  Indeed, the plaintiffs have produced an affidavit from an
expert, Dr. Juantina Johnson, who opined that if the patient had been appropriately
taken to the hospital by EMS and had medical care not been delayed her chances of
survival would have been improved.
The plaintiffs first filed suit in CDC. Baumer Foods responded by filing a
motion for summary judgment on the basis that it was Mrs. Simmons’ statutory
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employer and therefore immune from tort liability.  Although the trial court denied
that exception, this court granted Baumer Foods’ writ application and found that
Mrs. Simmons was Baumer Foods’ borrowed servant and that Baumer Foods was
entitled to tort immunity under the Workers’ Compensation Act.  Simmons v.
Baumer Foods, 07-C-0713 (La. App. 4 Cir. 9/6/07)(unpublished).  Thereafter, the
trial court granted the exception of no cause of action filed by Baumer Foods and
Task Force and dismissed all of the plaintiffs’ claims.
The plaintiffs then filed a disputed claim in the OWC, and they listed the
basis for their disputed claim as follows: “[d]eath caused by negligence of her
employer by failing to obtain emergency medical attention where she was in
critical distress.”  The OWC claim was dismissed on summary judgment.  The
Workers’ Compensation Judge (“WCJ”) found that the plaintiffs could not carry
their heightened burden of proof by clear and convincing evidence that Mrs.
Simmons’ heart attack was compensable under La. R.S. 23:1021(8)(e).  This court
affirmed that decision.    Simmons v. Task Force Staffing Services, Inc./Baumer
Foods, Inc., 09-1384 (La. App. 4 Cir. 1/13/10), ___ So.3d ___, 2010 W.L. 117676.
After their OWC claim was dismissed, the plaintiffs filed the instant suit in
CDC.  In response, the defendants filed exceptions of res judicata.  From the trial
court’s ruling sustaining the exceptions, the plaintiffs appealed.  As noted at the
outset, I agree with the majority’s decision that the exceptional circumstances
exception to res judicata applies as to all the defendants except American Zurich.
The exceptional circumstances exception to res judicata is codified in La.
R.S. 13:4232(A), which provides that “[a] judgment does not bar another action by
the plaintiff:                                                                        (1) When exceptional circumstances justify relief from the res
judicata effect of the judgment.”  The official comments to this provision explain
the purpose for this exception:
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[I]t gives the court the discretion to grant relief from the judgment for
exceptional circumstances. This discretion is necessary to allow the
court to balance the principle of res judicata with the interests of
justice. This discretion must be exercised on a case by case basis and
such relief should be granted only in truly exceptional cases.
This is a truly exceptional case both substantively and procedurally.
Substantively, the civil remedy the plaintiffs are seeking to pursue is a
unique one.  Indeed, a commentator has labeled the remedy as a “comptort”—the
remedy available for injuries arising out of a workplace setting that are not covered
by the Workers’ Compensation Act because of either legislative or judicial
narrowing of the compensation remedy.  H. Alston Johnson, Developments in the
Law 1993-1994:  A Faculty Symposium, Workers’ Compensation, 55 La. L.Rev.
665, 675, n. 63 (1995); see also Thomas C. Galligan, Jr., A Primer on the Patterns
of Louisiana Workplace Torts, 55 La. L.Rev. 71, 93, n. 83 (1994).  In this case, the
narrowing that gave rise to the comptort the plaintiffs seek to pursue was the
Legislature’s enactment of an elevated burden of proof for heart-related or
perivascular injuries.  La. R.S. 23:1021(8)(e). Alluding to the existence of a
comptort in this setting, the Louisiana Supreme Court in Charles v. Travelers Ins.
Co., 627 So.2d 1366, 1372, n. 17 (La. 1993), commented that the Legislature’s
action in increasing the plaintiffs’ burden of proving a compensation claim for
heart attacks and strokes “may have the result, albeit unintended, of exposing some
employers, in those cases where the plaintiff can prove the elements of his claim,
to the more financially harsh tort liability for those heart attacks and strokes now
excluded from compensation coverage.” Id.
In O’Regan v. Preferred Enterprises, Inc., 98-1602 (La. 3/17/00), 758 So.2d
124, the Supreme Court addressed a similar issue.  In that case, the plaintiff was a
laundry worker who contracted an occupational disease.  Because the plaintiff was
employed for only four months (less than twelve months), she was statutorily
presumed to have a nonoccupational disease and subject to a higher burden of
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proof.  La. R.S. 23:1031.1 (D).  Relying solely on the presumption that a short-
term employee’s disease is nonoccupational, the majority found the plaintiff was
entitled to pursue a tort claim.  The majority opinion in O’Regan, as Baumer Foods
points out in its brief, expressly declined to address the issue noted in footnote 17
in Charles, supra., and distinguished a presumption that eliminates certain
employees from workers’ compensation benefits, La. R.S. 23:1031.1 (D), from a
statutory provision that imposes a higher burden of proof, such as La. R.S.
23:1021(8)(e).  In contrast, the concurring opinion in O’Regan, by former Justice
Lemmon, focused on the Legislature’s imposition of a heightened burden of proof
as the basis for finding the laundry worker had a tort claim;  Justice Lemmon
explained:
The thing that makes this case different is the higher burden of proof
(especially when combined with the presumption of non-causation).
An  employee  who  can  prove  employment-rooted  causation  of  a
covered occupational disease by a preponderance of the evidence, but
cannot prove that causation by clear and convincing evidence  (the
interpretation of “an overwhelming preponderance of the evidence”
by the court of appeal in this case), has been denied a remedy under
the  Act  because  the  Legislature  has  eliminated  that  employee's
compensation  remedy  by  raising  the  burden  of  proof.  Such  an
employee therefore is entitled to a remedy in tort.
O’Regan, 758 So.2d at 141 (Lemmon, J., concurring).  He thus concluded that
“[s]ince the Legislature never gave this employee a chance to prove causation by a
simple preponderance of the evidence, she has been denied a remedy under the
Workers' Compensation Act, and the tort remedy is therefore available to her if she
can prove causation (and negligence) by a preponderance of the evidence.” Id.
By analogy, the plaintiffs in this case do not have a compensation claim
against Baumer Foods and Task Force because they cannot satisfy the heightened
burden of proof by clear and convincing evidence that Mrs. Simmons’ heart attack
was compensable under La. R.S. 23:1021(8)(e).  Because the Legislature has
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eliminated the plaintiffs’ compensation remedy by raising the burden of proof, they
are entitled to a remedy in tort.
Procedurally, until the WCJ found the plaintiffs could not satisfy the
heightened burden of proof for a compensation claim, they were barred by the
workers’ compensation exclusivity rule from pursuing a tort claim.  Due to the
limited jurisdiction of the respective forums (CDC and OWC), the plaintiffs were
precluded from cumulating their tort and workers’ compensation claims. See
O’Regan, 758 So.2d at 141 n. 4 (Lemmon, J., concurring)(observing that “[u]nder
the present jurisdiction rules, these [tort and workers’ compensation benefits]
demands could not be cumulated in the present action.”)  The plaintiffs were
required to bring each claim in a different forum.  Although the plaintiffs have
done so, they have had their claim dismissed in both forums.  Neither forum
reached the merits of the plaintiffs’ claim that the employer was negligent in
failing to administer first aid and failing to call for emergency help.  The plaintiffs
thus have not had the opportunity to litigate their claim in any forum.  Given the
unusual circumstances presented in this case, I agree with the majority that the
exceptional circumstances exception to res judicata applies as to all the defendants
except American Zurich.
As to American Zurich, the trial court correctly sustained the exception of
res judicata.  In the initial CDC suit, American Zurich filed a motion for summary
judgment, which the trial court granted, based on two policy exclusions.  One
exclusion was for bodily injury to an employee.  The other exclusion was for any
obligation under workers’ compensation.  The trial court’s judgment granting
American Zurich’s summary judgment motion on the basis of those exclusions is a
final judgment entitled to res judicata effect.  Regardless of whether the plaintiffs’
claim is in tort or workers’ compensation, American Zurich’s policy, as a matter of
law, excludes coverage for their claim.  Thus, I would find that the exceptional
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circumstances exception does not apply to the plaintiffs’ claim against American
Zurich and affirm the trial court’s decisions sustaining American Zurich’s res
judicata exception.
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