Rodney P. CORTEZ v. HOOKER CHEMICAL AND PLASTICS CORPORATION, et al., 402 So. 2d 249

BOUTALL, Judge. Rodney Cortez sued for personal injuries received while attempting to fight a fire at the Taft plant of the Hooker Chemical and Plastics Corporation. He sued Hooker Chemical and Plastics Corporation and several executive officers and/or supervisory employees, Robert Hall, George Haas, Clyde Hill and Shirley Zermgue. These named defendants are appellees in the appeal before us. There are other defendants in the suit who are not before us. The accident occurred on September 6, 1977, while plaintiff was employed as a production technician with Hooker.

Plaintiff alleges he hurt his back in the following manner: “IV “At or about 9:30 A.M. on that date, while petitioner was at work, an explosion occurred where petitioner was working, causing the hydrogen stacks to catch fire. Pursuant to orders, petitioner assisted in securing fire extinguishers to quell the fire, but there were not enough available at the site. Whereupon petitioner was ordered to secure more fire extinguishers.

Petitioner and others were brought to a storage area to secure additional fire extinguishers and, in the act of attempting to load such fire extinguishers into a pickup truck to return to the scene of the fire, petitioner sustained the injuries hereinafter described.” Plaintiff alleges the intentional acts of the defendants to be intentionally ordering and accepting deficiently designed, manufactured and installed roofing on the building and accepting and permitting to be used machinery and equipment that was defi-ciently designed, manufactured and installed.

He further alleges that the defendants wilfully and intentionally disregarded the provisions of the Occupational Safety and Health Act, particularly those relating to fire extinguishers and hazardous materials. Finally, plaintiff attacks the constitutionality of LSA-R.S. 23:1032 restricting the right of plaintiff to sue his employer, the executive officers and supervisory employees thereof. To plaintiff’s petition the defendants filed an exception of no right of action and exception of no cause of action, both based upon the exclusionary principle set out in LSA-R.S. 23:1032.

The trial court by a judgment of February 20, 1979, overruled and dismissed the exception of no cause of action and at the same time maintained the exception of no right of action, granting 20 days to cure the defects complained of or have the suit dismissed. Plaintiff filed an amended petition, and when the matter came on later for hearing on a number of rules filed in the case, the court found that there had been no compliance with its prior order and dismissed plaintiff’s suit against these defendants.

In his reasons for judgment the court stated that he should have maintained the exception of no cause of action rather than the exception of no right of action, but concluded, after examination of the amended petition, that the plaintiff had again failed to allege any facts relative to an intentional act as specified in the case of Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App.1st Cir. 1978). The court thereupon dismissed plaintiff’s petition.

Plaintiff contends on appeal that his suit was improperly dismissed because judgment was based upon the exception of no right of action rather than no cause of action. However, Code of Civil Procedure

Article 927 specifically provides that the failure to disclose a cause of action or a right or interest in the plaintiff to institute suit, may be noticed by either the trial or appellate court of its own motion. It appears to us that the court in dismissing the suit recognized this principle and dismissed based upon the exception of no cause of action. Additionally we point out that we have examined the petition and the supplemental petitions, and we are entitled by that same

article to notice the exception and act upon it. See for example Morse v. Hartford Casualty Insurance Company, 326 So.2d 390 (La.App. 3rd Cir. 1976); Wells v. St. Tammany Parish School Board, 340 So.2d 1022 (La.App. 1st Cir. 1976); Pogue v. Ray, 272 So.2d 454 (La.App. 2d Cir. 1973). C.C.P.

Article 2164 provides that we shall render any judgment which is just, legal and proper upon the record on appeal, and because, for the reasons expressed later, we hold that plaintiff has not stated a cause of action under LSA-R.S. 23:1032, we affirm the dismissal of plaintiff’s suit. The basic issue on this appeal is the application of LSA-R.S. 23:1032 to the facts alleged by the plaintiff employee against his employer and certain officers and supervisory employees thereof. As amended in 1976, that

section reads in pertinent part: Ҥ 1032.

Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease.

For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof. “Nothing in this

Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer, or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.” Pending this appeal, the Supreme Court of Louisiana has rendered an opinion in the case of Bazley v. Tortorich, 397 So.2d 475 (La.1981) which reversed a decision of this court in the case of Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980).

In that case, the Supreme Court concluded that the words “intentional act” meant the same as “intentional tort” in reference to civil liability. The facts alleged by petitioner in this case do not meet the principles set forth in Bazley and accordingly we must conclude that plaintiff has not alleged a cause of action. Similarly, we point out that the issue of constitutionality proposed here has been raised and decided in the Bazley case by the Supreme Court. We see no point in discussing that issue in detail, as it suffices to say that we are bound by that decision.

For the foregoing reasons, the judgment of the trial court dismissing plaintiff’s suit against the defendants party to this appeal is affirmed. AFFIRMED. CHEHARDY, J., concurs. . Also named in the suit but designated only by letters of the alphabet are certain architects, designers and engineers of the plant and equipment against whom claim is made based upon faulty design, manufacture and maintenance of the building and its equipment.