
    Wilson PREJEAN, et ux., Plaintiff-Appellant, v. INDUSTRIAL CLEANUP INC., et al., Defendant-Appellee.
    No. 97-1008.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 1998.
    
      J. Clemille Simon, Lafayette, for Wilson Prejean, et ux.
    Mark S. Taylor, Metairie, for Industrial Cleanup, Inc. et al.
    Before THIBODEAUX, GREMILLION and PICKETT, JJ.
   liGREMILLION, Judge.

This is an appeal by the plaintiff, Wilson Prejean, of the trial court’s judgment granting Industrial Cleanup, Inc.’s exception of prescription. For the following reasons, we affirm.

HISTORY

Prejean was injured on December 19,1991, while working as a member of a crew on a utility boat owned by his employer, Industrial Cleanup. This injury has left him totally disabled. As a result of this accident, Industrial Cleanup elected to pay workers’ compensation benefits, and has continued to pay such benefits to the present.

On December 15, 1995, Prejean filed suit pursuant to the “savings to suitors” clause of 28 U.S.C. 1331(1), alleging that he was a seaman and that the negligence of Industrial Cleanup and the unseaworthiness of the utility boat were the |2causes-in-fact of his injuries. Industrial Cleanup filed an exception of prescription, alleging that the lawsuit had not been timely filed within the three-year period provided for in 46 App.U.S.CA, 688. The trial court granted the exception, and Prejean appealed.

DISCUSSION

The sole issue presented by this appeal is whether Industrial Cleanup’s voluntary payment of workers’ compensation benefits serves as an acknowledgment of its debt so as to interrupt prescription on a subsequently filed delictual action against it arising from the same work related accident and injury. A similar issue was raised in Gary v. Camden Fire Insurance Co., 96-55 (La.7/2/96); 676 So.2d 553. In Gary, the plaintiff was injured in an automobile accident while in the course and scope of his employment. His employer voluntarily began making workers’ compensation payments several months after the accident. Sixteen months after the accident, the plaintiff filed a lawsuit for damages against the third-party tort feasor. The defendants filed an exception of prescription which was overruled by the trial court. On appeal, this court affirmed the trial court’s ruling, finding that the employer’s voluntary payment of workers’ compensation benefits was an acknowledgment of its obligation to the plaintiff which interrupted prescription under La. Civ.Code art. 3464, and this interruption was applicable to any claims for damages later filed against a third-party tort feasor. The supreme court reversed that decision and stated:

An acknowledgment is “the recognition of the creditor’s right or obligation that halts the progress of prescription before it has run its course.” Lima v. Schmidt, 595 So.2d at 631. It involves an admission [3of liability, either through explicit recognition of a debt owed, or through actions of the debtor that constitute a tacit acknowledgment. Acknowledgment may be made “verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways; or it may be implicit or inferred from the facts and circumstances.” Id. at 632; see also, Robert E. Blum, Comment, Interruption of Prescription by Acknowledgment in Louisiana, 14 Tul.L.Rev. 430 (1940). A tacit acknowledgment arises from a debtor’s acts of reparation or indemnity, unconditional offers or payments, or actions which lead the creditor to believe that the debtor will not contest liability. Lima v. Schmidt, 595 So.2d at 634. Acknowledgment interrupts prescription before it has expired, with the prescriptive period beginning to run anew from the time of the interruption. Id. at 631.
Were it not for the existence of La.Rev. Stat. 23:1204, it would seem evident that voluntary payment of compensation benefits constitutes an acknowledgment of the employer’s debt to the injured employee. Section 1204, however, encourages voluntary payment of compensation by assuring the employer that his voluntary payment does not, and will not, constitute an admission of liability. Because of Section 1204’s statutory command, the voluntary payment of compensation here is not an acknowledgment of debt or liability and does not interrupt prescription under La.Civ.Code art. 3464.

Id. at 556.

Prejean contends that the holding in Gary should be limited to claims against third-party tortfeasors. We disagree. Although the court’s decision in Gary was concerned only with the suspension of prescription as it affected a third-party tortfeasor, we find the analysis persuasive. La.R.S. 23:1204 provides that “[njeither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter.” The clear language of -La. R.S. 23:1204 and the analysis by the Gary court leaves no room for any conclusion other than prescription is not suspended by the voluntary payment of workers’ compensation benefits. Therefore, we affirm the trial court’s decision granting Industrial Cleanup’s exception of prescription.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Wilson Prejean.

AFFIRMED.

THIBODEAUX, J., dissents and assigns reasons.

| iTHIBODEAUX, Judge,

dissenting.

The majority’s reliance on Gary v. Camden Fire Insurance Co., 96-55 (La.7/2/96); 676 So.2d 553 and La.R.S. 23:1204 is misplaced. The specific issue in Gary was “whether the payment alone of workers’ compensation benefits to an injured employee interrupts a prescription with regard to the worker’s claim against third-party tortfeasors.” (Emphasis supplied). The Louisiana Supreme Court said it did not. Part of its rationale was that a voluntary payment of compensation benefits under La.R.S. 23:1204 was not an acknowledgment of the employer’s debt. Because it was not an acknowledgment of a debt or an admission of liability, prescription was not interrupted. Section 1204, therefore, encourages the voluntary payment of compensation benefits because employers are assured that they are not admitting to liability. In this ease, however, a lawsuit has not been filed against the employer for |2workers’ compensation benefits; rather, the injured employee has filed an admiralty claim under general maritime law and a claim as a Jones Act seaman for damages. The standards of proof for these claims are quite different from a workers’ compensation claim. Furthermore, the payment of workers’ compensation benefits certainly does not act as an admission of negligence for Jones Act purposes. The statutory framework for workers’ compensation benefits and the statutory framework for the pursuit of a seaman’s claim are entirely different. Therefore, the statutory command of La.R.S. 23:1204 is not abrogated or weakened by allowing thé filing of this delictual action involving different standards of proof against the employer arising from the same work-related accident and injury.

Moreover, one of the purposes of prescriptive statutes is to prevent prejudice to an employer. Unlike a situation involving a third-party tortfeasor who may not know of a potential pending claim, the employer in this instance is quite aware of the occurrence of the accident and the injury. Hence, to allow a lawsuit under these circumstances would not dilute the spirit or intendment of our prescriptive laws.

Gary should be limited to the specific issue which it addressed — a worker’s claim against third-party tortfeasors — and should not be extended to an action against an employer arising from the same incident.

For the foregoing reasons, I respectfully dissent.  