
    Charles O. SNEED, Jr., Plaintiff-Appellant, v. GILCHRIST CONSTRUCTION COMPANY, et al., Defendants-Appellees.
    No. 92-1024.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 1993.
    David A. Sheffield, Alexandria, for Charles O. Sneed Jr.
    Henry Gregory Walker Jr., for Gilchrist Const. Co., et al.
    
      Before DOMENGEAUX, C.J., and YELVERTON and SAUNDERS, JJ.
   YELVERTON, Judge.

For an on-the-job injury which occurred in November 1990, Charles Sneed filed suit in the district court against the insurer of his employer, claiming damages for the insurer’s failure to settle within 30 days. The claim for damages was based on La. R.S. 22:1220(B)(2) [now R.S. 22:782(2)], providing a penalty for failing to pay a settlement within 30 days after an agreement is reduced to writing. The plaintiff alleged in the petition that his worker’s compensation claim had been settled by written agreement but that the defendant did not pay the settlement money until more than 30 days after the agreement was reached.

The defendant, Commercial Union Insurance Company, filed an exception of subject matter jurisdiction, asserting that jurisdiction vests exclusively in the Office of Worker’s Compensation.

The trial court overruled the exception, but went on to rule in the defendant’s favor on a motion for summary judgment, finding that the payment was made within the time limitation, and dismissing the plaintiff’s suit.

We affirm the dismissal. However, we do so for the reason that the exception of subject matter jurisdiction should have been maintained, and the suit dismissed for that reason.

In Alford v. Travelers Ins. Co., 609 So.2d 906 (La.App. 4th Cir.1992), writ denied, 613 So.2d 626 (La.1993), the court held that the Louisiana Worker’s Compensation statutes provide a remedy for claimants against insurers who arbitrarily or capriciously fail to timely pay claims, that this remedy is exclusive, and therefore, La.R.S. 22:1220 is not available to worker’s compensation claimants, and that the Office of Worker’s Compensation is vested with original jurisdiction over all such claims. We agree with that decision.

Although the trial court, after overruling the exception of jurisdiction, heard and decided the matter on a motion for summary judgment, jurisdiction over the subject matter cannot be conferred by consent of the parties, and a judgment rendered by a court which has no jurisdiction over the subject matter of the action is void. La. C.C.P. art. 3. For this reason, the judgment of the trial court on the motion for summary judgment is void. We affirm the ultimate dismissal of the case by the trial court however, because the court did not have jurisdiction over the subject matter.

Affirmed, at appellant’s costs.

AFFIRMED.

SAUNDERS, J., dissents.

SAUNDERS, Judge,

dissenting,

I respectfully dissent. I disagree with the majority that, under the circumstances of this case, the Worker’s Compensation Act provides the only remedy. Once the settlement was entered into, this claim was taken out the ambit of worker’s compensation and brought within the ambit of an insurance claim which has been reduced to settlement, i.e., a claim which may be litigated under LSA-R.S. 22:1220. Therefore, I would decide the merits of the case.

I note further that the lower court committed manifest error in maintaining that a payment tendered by the defendant on March 30, 1992, constituted payment or substantial compliance with the 30 day limitation provided by LSA-R.S. 22:1220. The check tendered on March 30, 1992, was a restricted tender in that it constituted payment “in consideration of the matter.” The plaintiff immediately returned the check to defendant’s counsel, Anthony Walker, advising that the check was not acceptable in complete settlement of the case as the plaintiff wanted to reserve his claim for damages under LSA-R.S. 22:1220. The actual payment of the claim was not made until May 12, 1992, when the check was returned with an agreement that the principle claim check could be negotiated and the plaintiff could reserve his damage claim.

Accordingly, the computation of time should be from March 26, 1992, to May 12, 1992, which was a delay of 49 days, thus establishing the entitlement of the plaintiff to damages provided under LSA-R.S. 22:1220.

In drafting R.S. 22:1220, the authors specifically noted that the provision would not be applicable to claims made under health and accident insurance policies; to industrial and burial insurance companies as provided for in LSA-R.S. 22:251 and 22:253; to insurers that market under the home service marketing distribution method; and that it would not be applicable to the Louisiana Insurance Guaranty Association fund as provided for in R.S. 22:1375. There is nothing to indicate that the listing of insurers to whom the article would not apply was in any way illustrative and, accordingly, since the legislation applies to “an insurer” and specifically lists those to whom it does not apply, there is no reason to hold that it does not apply to a worker’s compensation carrier who violates its provisions, subsequent to having made a settlement in writing.

I believe that the defendant violated the provisions of LSA-R.S. 22:1220 and that the plaintiff is entitled to penalties as provided therein.

For the foregoing reasons, I respectfully dissent.  