NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 11-1010
AMANDA CARPENTER
VERSUS
SHELTER MUTUAL INSURANCE CO.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2010-7228 HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Jimmie C. Peters and Billy Howard Ezell, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Willard Paul Schieffler Joseph F. Gaar, Jr. Lucas S. Colligan P. O. Box 2053 Lafayette, LA 70502-2053 (337) 233-3185 COUNSEL FOR PLAINTIFF/APPELLANT: Amanda Carpenter
Thomas Reginald Hightower Jr. Patrick Wade Kee P. O. Drawer 51288 Lafayette, LA 70505 (337) 233-0555 COUNSEL FOR DEFENDANT/APPELLEE: Shelter Mutual Insurance Co. PETERS, J.
The plaintiff, Amanda Carpenter, appeals from the trial court denial of her
motions for summary judgment and new trial on the issue of whether her
automobile liability insurance company, Shelter Mutual Insurance Company
(Shelter Mutual), is entitled to recover payments made to her subject to the
policy’s medical payment subrogation lien without that payment being reduced by
the costs and attorney fees she expended in recovering damages from a third party.
For the following reasons, we affirm the trial court judgment in part, reverse it in
part, and remand this matter to the trial court for further proceedings.
DISCUSSION OF THE RECORD
The facts in this litigation are not in dispute. On October 13, 2009, Ms.
Carpenter sustained personal injuries as a result of her involvement in a Lafayette,
Louisiana automobile accident. At the time of the accident, Shelter Mutual insured
Ms. Carpenter pursuant to the terms of an automobile liability insurance policy.
The policy provides for payment of medical benefits to Ms. Carpenter and,
sometime after the accident, Shelter Mutual contributed $5,000.00 to her medical
expenses pursuant to the terms of its policy.
The insurance policy also contains a subrogation clause which reads as
follows:
In [sic] we make any payment under this Policy and the person to or for whom payment is made has a right to recover damages from another, we shall be subrogated to that right. However, our right to recover is subordinate to the insured’s right to be fully compensated. This provision does not apply to payments we make under Part. III.
(Emphasis in the original).
Part III of the policy is the Auto Accidental Death Benefit provided for in the
policy and is obviously not applicable to this litigation. The accident occurred on October 13, 2009, and Ms. Carpenter filed suit
against the driver of the other vehicle and her liability insurer on March 10, 2010.
On September 29, 2010, Ms. Carpenter settled her tort suit for $27,500.00.
Thereafter, on November 4, 2010, Ms. Carpenter filed this Petition for Concursus
and deposited $5,000.00 of the settlement in the registry of the court. In her
concursus petition, she sought a judgment reducing the Shelter Mutual subrogation
claim by an amount sufficient to cover the attorney fee and costs she expended in
recovering that amount for her insurer.
On February 22, 2011, Ms. Carpenter filed the motion for summary
judgment which is now before us. After a March 21, 2011 hearing, the trial court
denied relief to Ms. Carpenter without reasons. After the trial court executed a
judgment on the issue and after it rejected Ms. Carpenter’s motion for a new trial,
Ms. Carpenter perfected this appeal asserting two assignments of error: (1) that the
trial court erred in not granting the motion for summary judgment and reducing
Shelter Mutual’s recovery by one-third, and (2) that the trial court erred in not
granting her motion for new trial.
OPINION
Summary Judgment Issue
Summary judgments are reviewed de novo, applying the same standard to
the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp.,
Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. Summary judgment is favored by the
law and provides a vehicle by which the “just, speedy, and inexpensive”
determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The
trial court is required to render summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
2 any, show that there is no genuine issue as to material fact, and that mover is
entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).
A fact is “material” when its existence or nonexistence may be essential to plaintiff=s cause of action under the applicable theory of recovery. “[F]acts are material if they potentially insure or preclude recovery, affect a litigant=s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.
Smith, 639 So.2d at 751 (citations omitted) (alteration in original).
In determining whether a fact is material, we must consider the substantive
law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3
Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427.
The subrogation issue in a workers’ compensation situation was addressed
by the supreme court in Moody v. Arabie, 498 So.2d 1081 (La.1986). In Moody,
the supreme court held that in the context of a claim against a third party, an
employee and his employer are co-owners of a property right which allowed the
employee to force the employer to “contribute to the costs of maintenance and
conservation of the common thing in proportion to their interests.” Id. at 1085.
Thus, the supreme court held that an employee could force an employer to
contribute reasonable costs and attorney fees expended in the recovery against a
third party.
In Barreca v. Cobb, 95-1651 (La. 2/28/96), 668 So.2d 1129, the supreme
court extended the holding reached in Moody to cases arising outside of workers’
compensation. In Barreca, the plaintiff was injured in an automobile accident, and
during the course of treatment for his injuries, Blue Cross/Blue Shield of Louisiana
(Blue Cross) paid $15,360.91 in medical expenses on his behalf. The plaintiff filed
suit against the parties responsible for his injuries and gave Blue Cross written 3 notice of the pendency of the suit. Blue Cross did not intervene in the lawsuit, and
the plaintiff ultimately settled his claim for $69,000.00. Thereafter, the plaintiff
filed a concursus seeking the same relief Ms. Carpenter seeks in this litigation.
In ruling in favor of the plaintiff, the supreme court first determined that
Blue Cross’ right was that of subrogation and not reimbursement based on the fact
that its insurance policy granted Blue Cross the right “to assert the actions and
rights of the plaintiff against the tortfeasor.” Id. at 1131. Using Moody as the
rationale for its decision, the supreme court recognized the co-ownership nature of
the right to recover medical expenses paid by the insurer and concluded that “an
insurer who has notice of the insured’s claim but fails to bring its own action or to
intervene in plaintiff’s action will be assessed a proportionate share of the recovery
Free access — add to your briefcase to read the full text and ask questions with AI
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 11-1010
AMANDA CARPENTER
VERSUS
SHELTER MUTUAL INSURANCE CO.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2010-7228 HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Jimmie C. Peters and Billy Howard Ezell, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Willard Paul Schieffler Joseph F. Gaar, Jr. Lucas S. Colligan P. O. Box 2053 Lafayette, LA 70502-2053 (337) 233-3185 COUNSEL FOR PLAINTIFF/APPELLANT: Amanda Carpenter
Thomas Reginald Hightower Jr. Patrick Wade Kee P. O. Drawer 51288 Lafayette, LA 70505 (337) 233-0555 COUNSEL FOR DEFENDANT/APPELLEE: Shelter Mutual Insurance Co. PETERS, J.
The plaintiff, Amanda Carpenter, appeals from the trial court denial of her
motions for summary judgment and new trial on the issue of whether her
automobile liability insurance company, Shelter Mutual Insurance Company
(Shelter Mutual), is entitled to recover payments made to her subject to the
policy’s medical payment subrogation lien without that payment being reduced by
the costs and attorney fees she expended in recovering damages from a third party.
For the following reasons, we affirm the trial court judgment in part, reverse it in
part, and remand this matter to the trial court for further proceedings.
DISCUSSION OF THE RECORD
The facts in this litigation are not in dispute. On October 13, 2009, Ms.
Carpenter sustained personal injuries as a result of her involvement in a Lafayette,
Louisiana automobile accident. At the time of the accident, Shelter Mutual insured
Ms. Carpenter pursuant to the terms of an automobile liability insurance policy.
The policy provides for payment of medical benefits to Ms. Carpenter and,
sometime after the accident, Shelter Mutual contributed $5,000.00 to her medical
expenses pursuant to the terms of its policy.
The insurance policy also contains a subrogation clause which reads as
follows:
In [sic] we make any payment under this Policy and the person to or for whom payment is made has a right to recover damages from another, we shall be subrogated to that right. However, our right to recover is subordinate to the insured’s right to be fully compensated. This provision does not apply to payments we make under Part. III.
(Emphasis in the original).
Part III of the policy is the Auto Accidental Death Benefit provided for in the
policy and is obviously not applicable to this litigation. The accident occurred on October 13, 2009, and Ms. Carpenter filed suit
against the driver of the other vehicle and her liability insurer on March 10, 2010.
On September 29, 2010, Ms. Carpenter settled her tort suit for $27,500.00.
Thereafter, on November 4, 2010, Ms. Carpenter filed this Petition for Concursus
and deposited $5,000.00 of the settlement in the registry of the court. In her
concursus petition, she sought a judgment reducing the Shelter Mutual subrogation
claim by an amount sufficient to cover the attorney fee and costs she expended in
recovering that amount for her insurer.
On February 22, 2011, Ms. Carpenter filed the motion for summary
judgment which is now before us. After a March 21, 2011 hearing, the trial court
denied relief to Ms. Carpenter without reasons. After the trial court executed a
judgment on the issue and after it rejected Ms. Carpenter’s motion for a new trial,
Ms. Carpenter perfected this appeal asserting two assignments of error: (1) that the
trial court erred in not granting the motion for summary judgment and reducing
Shelter Mutual’s recovery by one-third, and (2) that the trial court erred in not
granting her motion for new trial.
OPINION
Summary Judgment Issue
Summary judgments are reviewed de novo, applying the same standard to
the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp.,
Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. Summary judgment is favored by the
law and provides a vehicle by which the “just, speedy, and inexpensive”
determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The
trial court is required to render summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
2 any, show that there is no genuine issue as to material fact, and that mover is
entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).
A fact is “material” when its existence or nonexistence may be essential to plaintiff=s cause of action under the applicable theory of recovery. “[F]acts are material if they potentially insure or preclude recovery, affect a litigant=s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.
Smith, 639 So.2d at 751 (citations omitted) (alteration in original).
In determining whether a fact is material, we must consider the substantive
law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3
Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427.
The subrogation issue in a workers’ compensation situation was addressed
by the supreme court in Moody v. Arabie, 498 So.2d 1081 (La.1986). In Moody,
the supreme court held that in the context of a claim against a third party, an
employee and his employer are co-owners of a property right which allowed the
employee to force the employer to “contribute to the costs of maintenance and
conservation of the common thing in proportion to their interests.” Id. at 1085.
Thus, the supreme court held that an employee could force an employer to
contribute reasonable costs and attorney fees expended in the recovery against a
third party.
In Barreca v. Cobb, 95-1651 (La. 2/28/96), 668 So.2d 1129, the supreme
court extended the holding reached in Moody to cases arising outside of workers’
compensation. In Barreca, the plaintiff was injured in an automobile accident, and
during the course of treatment for his injuries, Blue Cross/Blue Shield of Louisiana
(Blue Cross) paid $15,360.91 in medical expenses on his behalf. The plaintiff filed
suit against the parties responsible for his injuries and gave Blue Cross written 3 notice of the pendency of the suit. Blue Cross did not intervene in the lawsuit, and
the plaintiff ultimately settled his claim for $69,000.00. Thereafter, the plaintiff
filed a concursus seeking the same relief Ms. Carpenter seeks in this litigation.
In ruling in favor of the plaintiff, the supreme court first determined that
Blue Cross’ right was that of subrogation and not reimbursement based on the fact
that its insurance policy granted Blue Cross the right “to assert the actions and
rights of the plaintiff against the tortfeasor.” Id. at 1131. Using Moody as the
rationale for its decision, the supreme court recognized the co-ownership nature of
the right to recover medical expenses paid by the insurer and concluded that “an
insurer who has notice of the insured’s claim but fails to bring its own action or to
intervene in plaintiff’s action will be assessed a proportionate share of the recovery
costs incurred by the insured, including reasonable attorney fees.” Id. at 1132
(footnote omitted)(emphasis in original). With regard to the notice requirement,
the supreme court stated:
As co-owners, both the insured and the insurer are responsible for the corresponding litigation expenses. However, we hold that, in subrogation cases, an important prerequisite to the assessment of attorney fees is timely notice to the insurer. Timely notice is necessary to allow the insurer to exercise its right to join the action, or bring its own action, and be represented by legal counsel of its own choosing if it so elects. Assessment of attorney fees is justified only when the insurer chooses to rely on the efforts of plaintiff’s counsel.
Id. (emphasis in original).
See also Masters v. State Farm Mutual Automobile Insurance Co., 36,735,
(La.App. 2 Cir. 3/5/03), 840 So.2d 665, writ denied, 03-1219 (La. 6/27/03), 847
So.2d 1276, where the second circuit reversed a trial court judgment awarding
contribution to a plaintiff in a medical payment situation because the plaintiff
failed to notify the insurer of the claim against the third party until after the matter
had been settled. 4 In addition to the pleadings, Ms. Carpenter offered only the declarations
page of the Shelter Mutual insurance policy in support of her motion for summary
judgment. 1 In opposition to the motion, Shelter Mutual offered a copy of the
insurance policy; a copy of a March 26, 2010 letter from a Shelter Mutual claims
representative addressed to State Farm Insurance (State Farm) as the defendant’s
insurer in the underlying litigation, informing that insurer of its intent to exercise
its subrogation rights; a copy of a second letter to State Farm from Shelter
Mutual’s claims department dated April 29, 2010, informing State Farm that
Shelter Mutual’s investigation determined that State Farm’s insured was at fault in
causing Ms. Carpenter’s accident and that Shelter Mutual intended to pursue its
subrogation claim for the medical benefits paid; a copy of a May 28, 2010 form
letter to State Farm from Shelter Mutual’s claims department requesting a response
from State Farm concerning its status in the settlement process; a copy of a
September 20, 2010 letter to Ms. Carpenter’s attorney wherein Shelter Mutual
acknowledged receipt of a September 16, 2010 letter requesting waiver of it
subrogation rights and rejected that request; a copy of a September 23, 2010 letter
to Ms. Carpenter’s attorney wherein Shelter Mutual acknowledged receipt of a
September 22, 2010 letter requesting that Shelter Mutual accept two-thirds of the
$5,000.00 for its subrogation claim and rejected that request; a copy of an October
7, 2010 letter to Ms. Carpenter’s attorney wherein Shelter Mutual again rejected
requests to waive its subrogation rights and requested that Ms. Carpenter’s attorney
forward Shelter Mutual the $5,000.00 at issue.
1 In a supplemental memorandum in support of her motion for summary judgment, Ms. Carpenter discusses a November 12, 2009 letter, which was sent to Shelter Mutual informing it that she had retained counsel. Although the letter is listed as an exhibit, it is not attached to the memorandum. 5 We find no error in the trial court’s denial of Ms. Carpenter’s motion for
summary judgment based on the evidentiary record before it at the time of the
hearing on the motion. Ms. Carpenter presented no evidence to establish that she
provided Shelter Mutual with timely notice such as to allow Shelter Mutual to
intervene in Ms. Carpenter’s action or to file its own action to protect its
subrogation rights. However, we find that the trial court erred in dismissing Ms.
Carpenter’s suit and ordering that the funds on deposit be transferred to Shelter
Mutual. The record reflects that Shelter Mutual did not file its own motion for
summary judgment on this issue. Thus, the only question before the trial court was
whether Ms. Carpenter carried her burden of proof on her motion for summary
judgment, not whether or not she will ultimately be successful in the event a trial is
required in this matter.
New Trial Issue
Ms. Carpenter timely requested a new trial after the trial court executed the
judgment dismissing her suit. In doing so, Ms. Carpenter relied completely on the
ruling in Moody, 498 So.2d 1081. As support for her motion, she attached a copy
of Shelter Mutual’s insurance policy; a copy of a notice from the Office of the
Louisiana Commissioner of Insurance addressing subrogation issues; and a copy of
a letter from her attorney dated November 12, 2009, informing Shelter Mutual of
his representation of Ms. Carpenter in the proceedings arising from the October 13,
2001 accident. The trial court denied the motion without a hearing.
We find no error in the trial court’s denial of a new trial. As we have
previously noted, Ms. Carpenter failed to carry her burden of proof on the notice
issue and the rejection of the motion for summary judgment on that ground is not
contrary to the law and evidence. La.Code Civ.P. art. 1972(A). Additionally, the
6 attachments to Ms. Carpenter’s brief are not evidentiary items that could not have
been obtained before or during the trial on the motion. La.Code Civ.P. art.
1972(B).2 While we do find that the trial court erred in dismissing Ms. Carpenter’s
action, that issue was not addressed in her motion for new trial.
DISPOSITION
For the foregoing reasons, we affirm the trial court judgment rejecting
Amanda Carpenter’s motion for summary judgment and motion for new trial,
except that we reverse that portion of the trial court judgment dismissing Amanda
Carpenter’s claims against Shelter Mutual Insurance Company and remand the
matter to the trial court for further proceedings consistent with this opinion. We
assess the costs of this appeal equally between Amanda Carpenter and Shelter
Mutual Insurance Company.
This opinion is AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules—Courts of Appeal.
2 Louisiana Code of Civil Procedure Article 1972(C) relates to jury trials and is not applicable to this litigation. 7