Author: Cole C. Frazier

Wage Garnishment –Failure to Comply with Louisiana Procedures Can Result in Costly Penalties for Louisiana Employers

12.04.2023

Although courts have described the outcome as “harsh,” a recent ruling shows that a judgment creditor can recover the full amount of an employee’s unpaid debt from an employer if that employer fails to comply with specific garnishment procedures.

A party that prevails in a lawsuit and is awarded damages is known as a judgment creditor. In order to collect on the judgment, Louisiana law allows a judgment creditor to garnish the wages of the judgment debtor, the party cast in judgment. Once a judgment against an employee is obtained, the judgement creditor may issue garnishment interrogatories to the employer requesting information related to the employee’s job, rate of compensation, manner of payment, and whether there are other judgments or garnishments affecting the employee’s compensation.

It is imperative that the employer file sworn answers to all garnishment interrogatories within 30 days from the date of service.^ Louisiana courts treat unsworn answers to interrogatories as a failure to answer,* and an employer’s failure to timely answer garnishment interrogatories can result in costly penalties. In fact, a Louisiana employer can be held liable for the full amount of the employee’s judgment if procedural requirements are not followed.

La. C.C.P. art. 2413(A) states that if the employer fails to answer the garnishment interrogatories within 30 days from the date of service, then the judgment creditor may proceed against the employer for the amount of the unpaid judgment, with interest and costs. La. C.C.P. art. 2413(B) provides that the employer must pay the entire amount of the judgment unless it proves the actual amount it owed to the employee at the trial on the contradictory motion. Regardless of the decision on the contradictory motion, La C.C.P. art. 2413(C) requires the employer to pay the costs and reasonable attorney’s fees of the judgment creditor.

The First Circuit Court of Appeals recently examined these procedures in Tower Credit, Inc. v. Williams.^^ The judgment creditor in the Tower Credit case issued garnishment interrogatories to the judgment debtor’s employer. However, the employer failed to timely respond to garnishment interrogatories. When the judgment creditor filed a Motion for Judgment Pro Confesso against the employer to require it to appear and present evidence regarding the amount of wages it should have withheld after receiving the garnishment interrogatories, the employer failed to appear for the hearing.

Given the employer’s failure to timely respond to the interrogatories and its failure to appear for the hearing, the First Circuit found that the creditor was entitled to a judgment pro confesso against the employer for the entire amount of the employee’s debt. Citing the unique facts of the case, which included evidence that the judgment debtor/employee no longer worked for the employer cast in judgment, the Louisiana Supreme Court recently granted vacated part of the judgment pro confesso and remanded the matter for rehearing.**

However, this case shows that Louisiana courts will enforce La. C.C.P. art. 2413 and cast an employer in judgment for its employee’s debt, even though courts have described the statute’s penalties as “harsh.” Tower Credit shows that employers should respond to garnishment interrogatories within the timeframe provided by law. In the event the deadline is passed, La. C.C.P. art. 2413(B) requires the employer to appear for the judgment pro confesso hearing if it intends to argue it should not be indebted for the judgment. Failure to do both could result in the employer being held liable for the full amount of its employee’s unpaid debt.

References:

^ See La. C.C.P. art. 2412(D).

*See All Star Floor Covering, Inc. v. Stitt, 804 So. 2d 705 (La. Ct. App. 1st Cir. 2001).

^^Tower Credit, Inc. v. Williams, 2022-0106 (La. App. 1 Cir. 9/16/22), 352 So. 3d 1029, writ granted, judgment vacated in part, 2022-01556 (La. 2/7/23), 354 So. 3d 659.

**Tower Credit, Inc. v. Williams, 2022-01556 (La. 2/7/23), 354 So. 3d 659.

Legislature Responds to Louisiana Supreme Court Decision and Sets New Public Policy Regarding Insurance Coverage for Permissive Use of Non-Owned Vehicles

11.14.2022

Imagine you are visiting family during the holidays. As a favor, you take a family member’s vehicle to the gas station for a fill-up. While in transit, you get into an accident where you are at fault. Does your insurance policy provide coverage for the accident?

According to La. R.S. 22:1296.1, a new statute that went into effect on August 1, 2022, the answer to this question is “yes,” your insurance may afford coverage under these facts.

La. R.S. 22:1296.1 now requires insurance policies issued in Louisiana to provide coverage when the driver insured under the policy operates a non-owned vehicle with the express or implied permission of the vehicle’s owner. The statue was enacted to declare a new public policy regarding this issue and was passed in response to the Louisiana Supreme Court’s decision in Landry v. Progressive Security Insurance Company, 2021-00621 (La. 1/28/22), reh’g denied, 2021-00621 (La. 3/25/22); 338 So.3d 1162.

The Landry case involved a motor vehicle accident that occurred as the defendant-driver, as a favor to the vehicle’s owner, drove the vehicle to a tire shop to repair a tire. The plaintiffs brought an action against the defendant-driver, the driver’s insurer, and the insurer of the vehicle that he drove at the time of the collision.

The Louisiana Supreme Court upheld a provision in the driver’s policy that stated coverage under such circumstances was only available when the driver’s own vehicle was out of service. Because the driver’s vehicle was not out of service, no coverage was found under the driver’s policy. In so holding, the Landry court found that public policy did not require automobile insurance liability coverage for a driver’s negligent operation of a non-owned vehicle.

The Louisiana legislature enacted La. R.S. 22:1296.1 in response to the Landry decision. The statute provides that an insurer writing automobile liability, uninsured, underinsured, or medical payments coverage shall not exclude the benefits of such coverage under its policy to an insured operating a non-owned vehicle if all of the following requirements are satisfied:

The coverage is in full force and effect.
The insured is operating a vehicle owned by another with the express or implied permission of the vehicle’s owner.
The non-owned vehicle that is being operated by the insured is not provided, furnished, or available to the insured on a regular basis.

The statute also provides this coverage is secondary to the vehicle owner’s insurance policy. Furthermore, if the coverage provided under the statute is included within the coverage provided pursuant to La. R.S. 22:1296, which addresses coverage for temporary, substitute, and rental vehicles, the provisions of La. R.S. 22:1296 determine which coverage is primary. (For additional information regarding La. R.S. 22:1296 click here.) [Sophia, please include link to blog from 5/25/22].

Let’s return to real life scenarios like those we addressed above. Perhaps you are blocked in at a party, so a friend tosses you the keys to move their car, or, like the situation in Landry, maybe you are trying to do a good deed by driving your parents’ car to a gas station for a fill-up when an accident occurs. While it remains to be seen how courts will interpret this statute in these circumstances, under the new legislation, these actions may now implicate coverage under your insurance policy.

Case Reference: Landry v. Progressive Security Insurance Company, 2021-00621 (La. 1/28/22), reh’g denied, 2021-00621 (La. 3/25/22); 338 So.3d 1162.

Supreme Court Abrogates Louisiana’s “Professional Rescuer’s Doctrine”

05.11.2022

Historically, Louisiana law provided that a professional rescuer injured in the performance of his or her duties “assumes the risk” of an injury and is not entitled to damages. See Worley v. Winston, 550 So.2d 694, 696 (La. App. 2 Cir.), writ denied, 551 So.2d 1342 (La. 1989). This is known as the Professional Rescuer’s Doctrine and applied as a defense to claims raised by firefighters, policeman, and others. The doctrine prevented recovery because the professional rescuer “assumed the risk” of injury. Recently, the Louisiana Supreme Court in Doe v. McKesson, 2021-00929 (La. 3/25/22) rejected the doctrine as a bar to suit by the professional rescuer.

In Doe, the Supreme Court of Louisiana accepted a certified question from the Fifth Circuit of the United States Court of Appeals as to the viability of the doctrine. In response, the Supreme Court held that the Professional Rescuer’s Doctrine has been abrogated in Louisiana both legislatively under La. C.C. art. 2323 and jurisprudentially in Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132 (La. 1988).

The Court cited La. C.C. art. 2323(A), which provides that the fault of “all persons […] shall be determined” in a civil action. Subsection (B) of the article provides this rule applies “to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.”

In Murray, the Supreme Court previously held that the doctrine of assumption of risk no longer had a place in Louisiana tort law following the adoption of comparative fault. Nevertheless, the Murray Court identified two exceptions:

Cases “where the plaintiff, by oral or written agreement, expressly waives or releases a future right to recover damages from the defendant,” if “no public policy concerns would invalidate such a waiver, the plaintiff’s right to recover damages may be barred on a release theory;” and

“[I]n the sports spectator or amusement park cases (common law’s “implied primary” assumption of risk cases).”

Murray, 521 So.2d at 1134. (internal citations omitted).

The Doe court observed that Murray provided no exception relative to professional rescuers. The Court further observed that, while the legislature had enacted statutes that bar plaintiff recovery in other settings, no such statute had been passed to codify the Professional Rescuer’s Doctrine.

Although professional rescuers injured in the performance of their duties may still be found at fault, the is no longer an automatic bar to suit.

A Decade Old Article Finds New Life: Televised Testimony

10.01.2020

Courts across the country now grapple with the changing face of trials in a time of social distancing and spikes of COVID-19 complicated by the confines of the courtroom. Attorneys and litigants must also adapt to this new “normal.” In this setting, an older law may help to bring new technology into the courtroom.

COVID-19 spawned the immediate use of videoconferencing and other technology in the courtroom. Fortunately, over a decade prior to the current pandemic, the Louisiana Legislature adopted Louisiana Civil Code of Procedure article 1633.1 which expressly provides for live televised testimony at a trial. Pursuant to Article 1633.1:

The court may order, upon a showing of appropriate safeguards, live testimony of a witness to be presented in open court by teleconference, video link, or other visual remote technology, if the witness is beyond the subpoena power of the court or when compelling circumstances are shown. The order may be entered at a pretrial conference or, in exceptional circumstances, on motion set for hearing at least ten days prior to trial or at another time that does not prejudice the parties.

The Article, titled “Live trial testimony by video,” does not limit the live video testimony feature only at trial. Commentary suggests that the term “trial” is intended to include evidentiary hearings on exceptions as well as summary matters. The comments further provide that a showing must be made to the court’s satisfaction of appropriate safeguards, such as (1) reliable transmission procedures and image quality, (2) an orderly process for reference to exhibits by the witness and all counsel or parties conducting the examination, and (3) an absence of any outside influence on the witness during testimony. Even if all the parties agree to the use of live televised testimony, the Article nevertheless requires a court order.

Pursuant to the Article, the court may order televised testimony when “compelling circumstances are shown.” These circumstances may exist where a witness has a pre-existing condition or is restricted from live attendance by their physician. They may also exist for witnesses barred from work-related travel by their employer.

Although adopted in 2007, Article 1633.1 remains largely unused by both courts and litigants; it appears its time has come.

Throw Me Something Mister? Liability for Mardi Gras Krewes

01.17.2020

As part of the unique aura that surrounds Mardi Gras in South Louisiana, the expression “Laissez les bons temps rouler” is forever linked to the spirit of the season. The Cajun French phrase meaning “Let the good times roll” captures the eccentric soul of Carnival. However, it might be difficult to let the good times roll after being struck by a bag of beads hurled from the second deck of float. If the spectator suffers a severe injury as a result, who is liable? Does the injured party have any recourse against the person who threw the beads? Against the Mardi Gras krewe organizers?

The Fourth Circuit Court of Appeal held that spectators assume the risk of injury when attending a parade. Citron v. Gentilly Carnival Club, Inc., 14-1096 (La. App. 4 Cir. 4/15/15), 165 So.3d 304. The foundation of the decision was based on the Mardi Gras Immunity Statute, La. R.S. 9:2796, which has two parts: (1) creates broad immunity for krewes which sponsor parades; and (2) states that anyone who attends such a parade “assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tosses or hurled by members,” which include, but are not limited to: beads, cups, doubloons, and many other things.

To impose liability on a krewe, there must be evidence of the krewe’s—as opposed to its member’s—gross negligence. Palmer v. Zulu Soc. Aid & Pleasure Club, Inc., 09–0751 (La. App. 4 Cir. 3/1/10), 63 So.3d 131 (emphasis added). Furthermore, a carnival krewe or organization may not be vicariously liable for its members’ acts. To the contrary, Louisiana jurisprudence has rejected the argument that a krewe is vicariously liable for its members’ acts. Kibble v. B.P.O. Elks Lodge No. 30, 640 So.2d 267, 269 (La. App. 4th Cir. 1993).

The Mardi Gras Immunity Statute imposes an extremely high burden of proving the “loss or damage was caused by the deliberate and wanton act or gross negligence” of the krewe or organization. Gross negligence has been defined as the “entire absence of care” and an “extreme departure from ordinary care or the want of even scant care.” Ambrose v. New Orleans Police Department Ambulance Service, 93–3099 (La. 7/5/94), 639 So.2d 216. In calculating whether an act was grossly negligent in the context of Mardi Gras Immunity Statute, the Citron court considered several factors: (1) the weight of the object thrown, (2) the distance the object was throw, and (3) the manner in which the object was thrown. Citron, 165 So.3d at 317.

Ultimately, the statute absolves krewes from liability for injuries caused by objects thrown to parade spectators, except in extreme and unusual circumstances. Therefore, be alert during parades this Mardi Gras season and Laissez les bons temps rouler.

Cole Frazier joined Keogh Cox as an associate in 2019 after working at the firm as a law clerk during law school. He earned his J.D. and Diploma in Comparative Law from Louisiana State University, Paul M. Hebert Law Center. During his time at LSU Law, he also studied comparative law at Jean Moulin Lyon 3 University in Lyon, France. Cole received his Bachelor’s degree in Business Administration with a concentration in Pre-law from Nicholls State University in 2015. He was elected to the Southland Conference all-academic team twice as a member of the Nicholls State football program.