Aetna Casualty & Surety Co. v. Jordan

Ed. F. McFaddin, Associate Justice. This is a Workmen’s Compensation case and necessitates a study of paragraphs (b) and (e) of § 81-1318 Ark. Stats. On March 4, 1955, Appellee Jordan, while an employee of Dickmann-Farnsworth, sustained accidental injuries in the course of his employment at Crossett, Arkansas. Aetna Casualty & Surety Company, as the insurance carrier of Dickmann-Farnsworth, upon learning of Jordan’s injuries immediately commenced payment of compensation to him for temporary total disability. The last of these payments was on August 16, 1955. Jordan lived in the State of Louisiana and instituted action in the District Court of that State for continuation of the Workmen’s Compensation payments, claiming that he was totally and permanently disabled. In that action, Jordan insisted that the Louisiana Workmen’s Compensation Law was applicable, and he proceeded by a suit in the District Court as provided by § 23:1311 Louisiana Revised Statutes of 1950. Aetna Casualty & Surety Company, as Dickmann-Farnsworth’s insurance carrier, resisted the jurisdiction of the Louisiana Court, claiming that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction. On May 2, 1957, the Louisiana District Court held that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction and dismissed Jordan’s action there pending; and on July 6, 1957, Jordan filed his claim with the Arkansas Workmen’s Compensation Commission, claiming total permanent disability. The insurance carrier and the employer then insisted that Jordan’s claim was barred by limitations under § 81-1318(b) Ark. Stats., the argument being that Jordan was injured on March 4, 1955; received his last payment for compensation on August 16, 1955; the claim was not filed with the Arkansas Workmen’s Compensation Commission until July 6, 1957; and the cited statute says that in a claim for additional compensation, the claim must be filed “within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the accident, whichever is greater.”1 The Referee and the Full Commission on appeal held that Jordan’s claim was barred by limitations; the Circuit Court reversed the Commission and remanded the claim to the Commission for development on the question of disability; and the insurance carrier and the employer prosecute this appeal. The determination of continued disability vel non has not been made. We have repeatedly held that the filing of a claim within the prescribed time is mandatory. The filing of the claim with the Commission on July 6, 1957, was more than one year from the date of the last payment and more than two years from the date of the accident. So the claim is barred pursuant to the provisions of § 81-1318 (b) Ark. Stats., unless the claimant can successfully rely on § 81-1318(e), which reads: “Whenever recovery in an action at law to recover damages for injury to or death of an employee is denied to any person on the ground that the employee and his employer were subject to the provisions of this act (§§ 81-1301 — 81-1349), the limitations prescribed in subsections (a) and (b) shall begin to run from the date of the termination of such action. In such event the employer or carrier shall be allowed a credit for actual cost of defending the action at law, not to exceed two hundred fifty dollars ($250), which shall be deducted from any compensation paid.” We look now at the facts in the record which cause the claimant to rely on the above section. At all times herein involved the claimant lived in the State of Louisiana. After the insurance carrier ceased making compensation payments on August 16, 1955, the claimant filed suit in Louisiana against the Aetna Casualty & Surety Company, as the insurance carrier of the employer. This was the correct procedure in Louisiana for the adjudication of compensation claims, i. e., rather than seeking an award from a commission, the claim is filed in the proper district court (§ 23:1311 Louisiana Revised Statutes of 1950). Originally, the claimant sued in the Eighth Judicial District Court in Louisiana, but took a nonsuit and refiled the action in the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, Louisiana. The insurance carrier excepted to the jurisdiction of the Louisiana Court and claimed that the claimant was employed in Arkansas; that the injury occurred in Arkansas; and that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction. Evidence was heard on whether the claim would he governed by the Louisiana Compensation Law or the Arkansas Compensation Law. The Nineteenth Judicial District Court sustained the insurance carrier’s exception to jurisdiction and dismissed the action2 on May 2, 1957. Thereupon, the claim was filed with the Arkansas Workmen’s Compensation Commission on July 6, 1957. In view of the Arkansas Statutes and the facts as recited, we hold that § 81-1318(e) is applicable, and that the claim is not barred by limitation. Learned counsel for the insurance carrier says that the action in the Louisiana District Court was not “an action for damages” and is therefore not within the purview of the said paragraph (e), but this argument is not impressive. The purpose of filing a claim is to set in motion the approved machinery for adjudication. The action in the Louisiana District Court certainly put the insurance carrier of the employer on notice. The purpose of subsection (e) is to toll the statute of limitations while an action is pending. The action in the Louisiana Court was to recover money for injuries sustained by the claimant. It was in a court of law. What more is a damage suit than an action in a law court to recover money for injuries sustained? It would be putting form above substance to hold that subsection (e) of § 81-1318 Ark. Stats, was not applicable in this case. In Reynolds v. Brumley, supra, we said: ‘ ‘ In this situation we are committed to the rule that if a substantial doubt exists as to which is the applicable statute of limitations, the longer rather than the shorter period is to be preferred and adopted. Jefferson v. Nero, 225 Ark. 302, 280 S. W. 2d 884. This rule is in harmony with our settled policy of giving a broad and liberal interpretation to the construction of the provisions of the Compensation Act to effectuate its purposes, and the further policy of resolving doubtful eases in favor of the claimant. E. H. Noel Coal Company v. Grile, 215 Ark. 430, 221 S. W. 2d 49; Triebsch v. Athletic Mining and Smelting Co., 218 Ark. 379, 237 S. W. 2d 26. ”3 In view of the foregoing, we affirm the judgment of the Circuit Court which remanded the claim to the Commission with directions to overrule the plea of limitations and for determination of compensation, if any, and for whatever sum, if any, the carrier should be allowed as a credit for the cost of defending the Louisiana action. Affirmed. Ward, J., dissents. Footnotes [1] Some of our cases involving § 81-1318 (b) Ark. Stats., or the earlier and somewhat similar statute, are: Sanderson & Porter v. Crow, 214 Ark. 416, 216 S. W. 2d 796; Wilson v. Border Queen Kitchen Cabinet Co., 221 Ark. 580, 254 S. W. 2d 682; Little v. Smith, 223 Ark. 601, 267 S. W. 2d 511; and Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211. [2] The Judge of the Louisiana Court wrote an opinion in the case which recited in part: “Suit was first instituted in the Eighth Judicial District Court of Louisiana, and upon an exception to the jurisdiction of that Court being filed, testimony was taken thereon. Prior to judgment on the exception in that suit Plaintiff voluntarily nonsuited same and instituted the suit in this District. By stipulation of counsel, the evidence previously taken was offered on the trial of the exception before this Court and the matter submitted thereon. “From the testimony of Mr. Jack C. Copeman, General Superintendent of Dickmann-Farnsworth Construction Company, and of a Mr. Charles R. Anding, Financial Secretary-Treasurer and Business Agent of the Iron Workers Local Union Number 710 of Monroe, Louisiana, it is my opinion that the Plaintiff herein became employed by Dickmann-Farnsworth Company only after he had arrived in Crossett, Arkansas, the place where the construction job was under way, and following the determination of the management of the Construction Company that Plaintiff was acceptable. “Inasmuch as the evidence shows that the Construction Company had an arrangement with the Union by which prospective employees were referred to the Construction Company by the Union and were guaranteed the equivalent of two (2) hours pay for reporting to the place of employment, counsel for Plaintiff contend that this was the actual employment of the Plaintiff by the Construction Company. Both the representative of the Union and the Superintendent of the Construction Company deny that, in fact, the Plaintiff was so employed — Mr. Anding disclaiming any authority to employ Plaintiff on behalf of the Construction Company and likewise Mr. Copeman testifying that the Agent had no such authority from the Construction Company. At most, the arrangement in my opinion was for a paid interview but under no circumstances could it be classed as an employment contract. “The cases of Cobb v. International Paper Company, 76 So. 2d 460; Reed v. Zurich General Accident and Liability Insurance Company, 83 So. 2d 660, and Rushing v. Travelers Insurance Company, 85 So. 2d 298, are, in my opinion, applicable to the issue here involved and therefore in my opinion the contract of employment between the Construction Company and Plaintiff was made and entered into in the State of Arkansas where Plaintiff allegedly sustained the injuries about which this suit was brought, and, in consequence, this Court has no jurisdiction.” [3] In addition to the cases cited in this opinion, the following authorities have been cited in the briefs or discovered in the study made by the Court: Schneider’s Workmen’s Compensation Text, Vol. XII § 2369, “Conflict of Laws in Limitation Statutes,” and § 2404 “Louisiana Law on Limitations”; Giacalone v. Industrial Accident Commission (Cal.), 262 P. 2d 79; Rushing v. Travelers Ins. Co. (La. Ct. App.) 85 So. 2d 298; 100 C.J.S. §§ 355, 362; City of Brunswick v. King (Ga. App.), 14 S. E. 2d 760; Westrich v. Industrial Comm. of Ohio, 197 N.E. 823; Lineberry v. Town of Mebane (N. C.), 12 S. E. 2d 252; Hayes v. Barras, 6 So. 2d 66; and annotation in 78 A.L.R. 1294.