
    Wanda KAHL, et al. v. Chester C. BAUDOIN, et al.
    No. 82-CA-1001.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Writ Granted Nov. 18,1983.
    
      Gerald J. Block, Lafayette, for plaintiffs.
    Nicholas F. Larocca, Jr., Lippman, Mahfouz, Martin, Larocca, Stansbury & Antin, Morgan City, for Chester C. Baudoin.
    Henry Salassi, Jr., Frank S. Craig, III, Baton Rouge, for State of Louisiana.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

This is a suit in workmen’s compensation. Plaintiff, individually and as natural tutrix of her two minor children, seeks to obtain death benefits under the Louisiana Workmen’s Compensation Act for the death of her husband, John Kahl, Sr.

Kahl, a former St. Mary Parish deputy sheriff, was fatally shot in the line of duty on June 4, 1980. Plaintiff brought suit against Chester C. Baudoin, Sheriff of St. Mary Parish, for workmen’s compensation benefits. Subsequently, the State of Louisiana was also named as a defendant.

The trial court ruled that Kahl was an employee, not a public official, for workmen’s compensation purposes under R.S. 23:1034, entitling plaintiff to recover death benefits. Furthermore, the court held that the State, not Sheriff Baudoin, was Kahl’s employer and thus liable to plaintiff for the benefits.

On appeal, the State contends that the trial court erred in: (1) finding Kahl a covered employee under R.S. 23:1034; (2) designating the State as the employer of decedent; and (3) overruling its exceptions of prescription and improper venue. Plaintiff, on appeal, seeks penalties and attorney fees under R.S. 22:658 for the alleged arbitrary and capricious refusal of the State and sheriff to pay death benefits.

APPLICABILITY OF WORKMEN’S COMPENSATION TO DEPUTY SHERIFFS

R.S. 23:1034 deals specifically with public employees and sets out those who are to be covered by workmen’s compensation. It provides as follows:

“Public employees; exclusiveness of remedies
“A. The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.
“B. Except as expressly and specifically provided to the contrary in Subsection A hereof, the officials excepted from coverage under the provisions of this Chapter, in Subsection A of this Section, include all public officers as defined by R.S. 42:1. In this regard, sheriffs’ deputies are, under R.S. 42:1, 33:1433 and 33:9001 et seq., appointed public officers and officials of their respective political subdivisions, the parish law enforcement districts.
“C. Notwithstanding the provisions of Subsection A hereof, any political subdivision may, in its own discretion and by using its own funds available for same, provide workmen’s compensation coverage for its officials, in addition to having to provide such coverage for its employees. (Emphasis added.)
Amended by Acts 1977, No. 528, § 1; Acts 1981, Ex.Sess., No. 25, § 1, eff. Nov. 19, 1981.”

Paragraphs (B) and (C) were added by Act 25 of the 1981 Extraordinary Legislative Session. Paragraph (B) clearly designates deputy sheriffs (other than those of Orleans Parish) as public officials who are excluded from workmen’s compensation coverage. Under (C), such deputy sheriffs can be covered under workmen’s compensation if the “political subdivision,” in its discretion, elects to provide coverage from its own funds.

The trial court ruled that paragraphs (B) and (C), passed after decedent’s death, were not retroactive and thus not applicable to the instant facts. We disagree. The title to Act 25 expressly stated that its purpose is “to interpret and clarify by definition the ‘officials’ excepted” from workmen’s compensation coverage. Such laws enacted by the legislature for purpose of interpreting or clarifying previous laws are given retroactive effect. Dripps v. Dripps, 366 So.2d 544 (La.1978). Moreover, the Third Circuit in Brodnax v. Cappel, 425 So.2d 232 (La.App. 3rd Cir.1982), addressed this same issue and held Act 25 retroactive because of the legislature’s clear, expressed intent to clarify and interpret the meaning of “officials.”

We conclude, then, that Act 25 is retroactive and applies to the instant facts. Under its provisions, deputy sheriffs are excluded from workmen’s compensation coverage as public officials. The trial court’s judgment classifying decedent as an employee and the state as employer is reversed and set aside. Plaintiff is not entitled to workmen’s compensation death benefits.

In light of our reversal of the trial court’s judgment, the remaining contentions of the state and plaintiff need not be addressed.

DECREE

Accordingly, for the above-expressed reasons, the judgment of the trial court is reversed and plaintiff’s suit dismissed. Costs of this appeal are to be borne equally by all parties.

REVERSED.

WATKINS and SHORTESS, JJ.,

concurring.

This case presents the latest in a long series of cases and statutory amendments that have arrived at or dictated different results as to whether or not deputy sheriffs were afforded coverage by the Workmen’s Compensation Act.

The applicable provision of the Compensation Act applying to public employees is La.R.S. 23:1034.

Subsections B and C were added to the statute by Act No. 25 of 1981, effective November, 1981.

Under the statute as it stood before the 1981 amendment, it was first held that a deputy sheriff was not ah “employee” of the sheriff, but rather “an official of the state or a political subdivision thereof” and hence not covered by workmen’s compensation. Richardson v. Heyd, In and for the Parish of Orleans, 278 So.2d 167 (La.Apip. 4th Cir.1973); Johnson v. Northern Assurance Co. of America, 193 So.2d 920 (La.App. 3rd Cir.1967); Mitchell v. James, 182 So.2d 144 (La.App. 3rd Cir.1966).

In Foster v. Hampton, 352 So.2d 197 (La. 1977), the Louisiana Supreme Court stated, in dicta, in a tort action, that a deputy sheriff was an employee of the State, and his tortious conduct rendered the State liable under the doctrine of respondeat superi- or. Foster v. Hampton, carried to its logical conclusion, had obvious implications with regard to the affording of workmen’s compensation coverage to sheriffs’ deputies, which this court, in subsequent cases presented to us for review, properly noted.

In Rodrigue v. Breaux, 388 So.2d 60 (La. App. 1st Cir.1980), we held, in a suit brought by a deputy sheriff against a sheriff for workmen’s compensation, that the State of Louisiana was an indispensable party to the proceeding, and remanded the case to permit the plaintiff to amend his petition. In Phillips v. State, Through Dept. of Transp., 400 So.2d 1091 (La.App. 1st Cir.1981), writ denied 401 So.2d 1195 (La.1981), and writ not considered, 403 So.2d 70 (La.1981), we held that the sole remedy of a deputy sheriff who was injured when the motor vehicle in which he was riding struck a pothole, lay under the Workmen’s Compensation Act, not in tort, as the deputy sheriff was an employee of the State for all purposes, not merely tort-re-spondeat superior purposes.

Meanwhile, in an apparent attempt to legislatively overrule Foster v. Hampton, supra, the Louisiana Legislature by Act No. 318 of 1978, amended La.R.S. 33:1433 and added La.R.S. 42:1441, the latter providing that the State was not liable for damages caused by, inter alia, a sheriff or his employees. The 1978 act was held by the Louisiana Supreme Court in Jenkins v. Jefferson Parish Sheriffs Office, 402 So.2d 669 (La.1981) to have the effect of making the sheriff liable in his official capacity for torts of a deputy sheriff. Dicta in the case indicated the State, which was not a party in Jenkins, was no longer liable for the tortious acts of a deputy sheriff.

Here the matter stood until the State Legislature enacted Act No. 25 of 1981, which as we have stated, added Subsections B and C to La.R.S. 23:1034. Subsection B provided that sheriffs’ deputies are appointed public officers and officials of their respective political subdivisions. Subsection C provided that a political subdivision may in its own discretion with its own funds provide workmen’s compensation coverage. The record shows that in the present case no workmen’s compensation coverage was obtained by Sheriff Baudoin or the St. Mary Parish Sheriff’s Office.

Act No. 25 took effect on November 19, 1981. The death of Deputy Kahl occurred on June 4, 1980. Thus, for Act No. 25 to apply to the present case, it must be given retroactive effect. The Third Circuit in circumstances similar to those in the present case accorded Act No. 25 retroactive effect in Brodnax v. Cappel, 425 So.2d 232 (La.App. 3rd Cir.1982). The court noted that the title to Act No. 25 had characterized the Act as interpretive of La.R.S. 23:1034 in its providing that public officials were not covered by workmen’s compensation. In a civilian jurisdiction, interpretive statutes are given retroactive effect. See Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1974); Brodnax, supra.

We are compelled to disagree with our brethren of the Third Circuit in their conclusion that Act No. 25 is truly interpretive legislation. As can be gathered from the discussion above, a degree of uncertainty existed as to whether sheriff’s deputies were public officials or employees, or, if they were employees, as to whether the State or the sheriff was their employer. Act No. 25 obviously was enacted with the purpose of putting these questions to rest. Act No. 25 goes against two decisions of this circuit, Rodrigue, supra, and Phillips, supra. It thus changes the law, creating certainty where there was doubt, and establishing a policy contrary to that expressed by one of the five circuits of this State, and the Supreme Court of Louisiana in Foster v. Hampton, supra. Thus, regardless of the manner in which the State Legislature may have characterized Act No. 25, that Act is, as a matter of fact and law, substantive legislation, not interpretive legislation. Substantive legislation may not be applied retroactively, nor may vested rights, such as accrue in an action for personal injury (or workmen’s compensation) be divested by retrospective application of state statutes. La.C.C. art. 8; Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir.1980). Act No. 25 would divest vested rights accruing to Mrs. Kahl which had arisen long before the dates of its enactment and of its taking effect. Thus, it does not apply to the present claim, and Mrs. Kahl would be entitled to death benefits from the State under the workmen’s compensation statute, were it not for the fact that the claim had prescribed.

La.R.S. 23:1209 governs the prescriptive periods for actions for workmen’s compensation,. and reads as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IY of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The applicable prescriptive period in the present case is one year from the date of death, June 4,1980. The State of Louisiana was named as a party defendant by amended petition filed on October 30, 1981, which the trial court ordered filed, on the face of the same pleading, on November 2, 1981. Thus, plaintiffs’ claim has clearly prescribed. Sheriff Baudoin was not liable in workmen’s compensation at the time of Kahl’s death, as the prior discussion demonstrates. Thus, he was not a debtor in soli-do. As the State of Louisiana was the sole entity responsible for workmen’s compensation in the event of death or injury to a deputy sheriff, it was necessary that it be named a party defendant within the one-year prescriptive period. It was not. Plaintiffs’ claim had therefore clearly prescribed.

We respectfully concur for the reasons given above. 
      
      . In this case, Sheriff Baudoin had no workmen’s compensation insurance on his deputy sheriffs at the time of decedent’s death.
     