Angie Hebert v. Clarendon American Ins. Co.

• Court: Louisiana Court of Appeal
• Decided: June 4, 2008
• Docket: CA-0007-0992
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-0992

ANGIE HEBERT

VERSUS

CLARENDON AMERICAN INS. CO., ET AL.

************

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. 20061637 HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, Glenn B. Gremillion, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter, and James T. Genovese, Judges.

Thibodeaux, C.J., dissents and assigns written reasons. Cooks, J., dissents for the reasons assigned by Chief Judge Thibodeaux. Saunders, J., dissents for the reasons assigned by Chief Judge Thibodeaux. Ezell, J., dissents for the reasons assigned by Chief Judge Thibodeaux.

AFFIRMED.

R. Scott Iles Post Office Box 3385 Lafayette, LA 70506 (337) 234-8800 COUNSEL FOR PLAINTIFF/APPELLANT: Angie Hebert James A. Lochridge, Jr. Preis & Roy Post Office Drawer 94-C Lafayette, LA 70509 (337) 237-6062 COUNSEL FOR DEFENDANT/APPELLEE: Western World Insurance Company PETERS, J.

The plaintiff, Angie Hebert, appeals the trial court’s grant of a summary

judgment dismissing her claim against her uninsured/underinsured motorist insurance

(UM) provider, Western World Insurance Company (Western World). For the

following reasons, we affirm the judgment of the trial court.

DISCUSSION OF THE RECORD

There exists no dispute concerning the basic facts involved in this appeal. This

litigation arises from a collision between two school busses which occurred on April

6, 2005, in Lafayette, Louisiana. Ms. Hebert was the driver of one of the vehicles and

sustained personal injuries in the accident. Both she and Danny Begnaud, the driver

of the other bus, were employees of the Lafayette Parish School Board (School

Board) and, at the time of the accident, were acting in the course and scope of their

employment with the School Board.

Asserting that Mr. Begnaud’s negligence was the sole cause of the accident and

her resulting injuries, Ms. Hebert filed suit against him, the School Board’s liability

insurer, and her automobile liability insurer, Western World.1 Thereafter, the trial

court granted a motion for summary judgment filed by Mr. Begnaud and the School

Board’s liability insurer, dismissing both from the litigation. The grant of this

summary judgment left Western World as the sole remaining defendant in the

litigation. After the dismissal of Mr. Begnaud and the School Board’s insurer from

the litigation, Western World sought relief by summary judgment as well. The trial

court’s grant of the motion for summary judgment and subsequent dismissal of Ms.

Hebert’s suit against Western World is the basis of this appeal.

1 Initially, Ms. Hebert named Interstate Fire and Casualty Company as her liability insurer. However, by later amendments to the pleadings, she substituted that defendant in the litigation with Western World. OPINION

The sole issue in this appeal is whether an employee injured in a motor vehicle

accident by the negligence of a co-employee, both of whom at the time of the accident

are in the course and scope of their employment, may recover tort damages from his

or her UM insurer. In granting Western World’s motion for summary judgment the

trial court disposed of that issue by finding that the injured employee could not

recover. It did so based on Mr. Begnaud’s status as a co-employee and the tort

immunity granted that status under Louisiana workers’ compensation law.

Summary judgments are reviewed by appellate courts de novo. Supreme Serv.

and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634.

A motion for summary judgment is properly granted if there is no genuine issue of

material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P.

art. 966; Travelers Ins. Co. v. Joseph, 95-200 (La. 6/30/95), 656 So.2d 1000.

“[W]hen an appellate court reviews a question of law the standard of review is simply

whether the lower court’s interpretive decision is correct.” Johnson v. Calcasieu

Parish Sheriff’s Dept., 06-1179, p. 3 (La.App. 3 Cir. 2/7/07), 951 So.2d 496, 499.

There are no factual disputes in the present case, so we review whether the lower

court’s interpretive decision was correct and whether Western World was entitled to

judgment as a matter of law.

The trial court dismissed Ms. Hebert’s claims against Mr. Begnard and the

School Board based on the workers’ compensation exclusive remedy provisions of

La.R.S. 23:10322, and Ms. Hebert does not contest the correctness of that decision.

2 Louisiana Revised Statute 23:1032(A)(1)(a) provides in pertinent part that “[e]xcept for intentional acts . . . the rights and remedies herein granted to an employee . . . on account of an injury . . . for which he is entitled to compensation under [the workers’ compensation law], shall be exclusive of all other rights, remedies, and claims for damages . . . unless such rights, remedies, and

2 Thus, it is clear from the record before us that Ms. Hebert is entitled to workers’

compensation benefits from the School Board as her employer. It is equally clear

from the record that Mr. Begnard is immune from civil liability to Ms. Hebert.

In her pleadings, Ms. Hebert had alleged that under the UM provisions of her

policy her liability insurer was required to compensate her for her damages because

Mr. Danny Begnaud was uninsured or underinsured by virtue of his workers’

compensation-related immunity. She argues in her single assignment of error that she

should not be precluded from recovering her damages from her UM carrier based on

the “artificial reason that the uninsured motorist was a co-employee.” Specifically,

Ms. Hebert argues that it would be unfair to allow Western World to escape liability

under its policy by taking advantage of the immunity defense provided Mr. Begnard

in La.R.S. 23:1032 where she paid premiums for her UM coverage and Western

World made no contribution toward her workers’ compensation coverage. In making

this argument, she recognizes that the jurisprudence does not favor her position but

urges us to ignore that prior jurisprudence and rule in her favor, arguing that the

strong public policy embodied in the Louisiana Uninsured Motorist Statute, La. R.S.

22:680, supports full recovery for innocent automobile accident victims.

With regard to UM coverage, the Western World policy provides that “[w]e

will pay all sums the ‘insured’ is legally entitled to recover as compensatory damages

from the owner or driver of an ‘uninsured motor vehicle.’” (Emphasis added.) This

language traces that found in La.R.S. 22:680(1)(a)(i), which requires that an

automobile liability insurer make UM coverage available to its insureds on an

damages are created by a statute. . . .” Louisiana Revised Statute 23:1032(A)(1)(b) extends this exclusive remedy to claims against fellow employees, and La.R.S. 23:1032(C) further emphasizes the significance of the exclusivity of the remedy by declaring it to be an “immunity from civil liability.”

3 optional basis. The purpose of the coverage is to provide coverage for those insureds

“who are legally entitled to recover nonpunitive damages from owners or operators

of uninsured or underinsured motor vehicles.” La.R.S. 22:680(1)(a)(i) (emphasis

added). Thus, the key language in both the Western World policy and the statute

authorizing UM insurance is the requirement that coverage be made available to

cover those situations in which the insured becomes “legally entitled to recover”

damages from an uninsured/underinsured driver.

In the matter now before us, Ms. Hebert is not legally entitled to recover

damages from Mr. Begnaud by virtue of his statutory immunity as a fellow employee

of the School Board. It has long and consistently been held that the tort immunity

defense is a general defense, and may be invoked by the tortfeasor’s liability insurer

or the injured party’s UM insurer. See Bolton v. Tulane Univ. of La., 96-1246

(La.App. 4 Cir. 1/29/97), 692 So.2d 1113, writ denied, 97-1229 (La. 9/26/97), 701

So.2d 982; Lee v. Allstate Ins. Co., 467 So.2d 44 (La.App. 4 Cir.), writ denied, 472

So.2d 593 (La.1985); Davis v. Allstate Ins. Co., 452 So.2d 310 (La.App. 2 Cir.), writ

denied, 457 So.2d 1194 (La.1984); Mayfield v. Cas. Reciprocal Exch., 442 So.2d 894

(La.App. 3 Cir. 1983), writ denied, 445 So.2d 1230 (La.1984); Braud v. Dixie Mach.

Welding & Metal Works, Inc, 423 So.2d 1243 (La.App. 5 Cir. 1982), writ denied, 430

So.2d 77 (La.1983); Fox v. Commercial Union Ins. Co., 413 So.2d 679 (La.App. 3

Cir. 1982); Gray v. Margot, Inc., 408 So.2d 436 (La.App. 1 Cir. 1981); and Carlisle

v. State Through DOTD, 400 So.2d 284 (La.App. 3 Cir.), writ denied, 404 So.2d 1256

(La.1981).

In Carlisle, the plaintiff sustained personal injuries as a guest passenger in a

fellow employee’s vehicle involved in an accident and sought recovery against,

4 among others, two UM carriers. This court concluded that the plaintiff had no cause

of action against the UM carriers because “[u]insured motorist coverage is contingent

upon there being liability by an uninsured or underinsured motorist,” and because the

plaintiff had no cause of action against the fellow employee due to the statutory

immunity provided by La.R.S. 23:1032, he had no cause of action against the UM

carriers. Id. at 287. Citing the fourth circuit decision in Bolton, 692 So.2d 1113, this

court followed the same reasoning set forth in Carlisle in Sunda v. United Serv. Auto.

Ass’n, 00-1425 (La.App. 3 Cir. 5/23/01), 787 So.2d 553, writ denied, 01-1835 (La.

10/26/01), 799 So.2d 1142.

Thus, it is well settled in our jurisprudence that where there is no underlying

uninsured or underinsured person from whom the plaintiff is legally entitled to

recover, due to the immunity provision of La.R.S. 23:1032, the plaintiff’s UM insurer

is not legally liable to him. That being the case, we decline to ignore the established

law and grant Ms. Hebert the relief she requests on this basis.

Ms. Hebert also asserts that, notwithstanding the established jurisprudence

unfavorable to her, Western World is an exception to that jurisprudence in that it is

a “third person” liable to her under the supreme court holding in Travelers, 656 So.2d

1000. This approach is viable, she argues, because of the language in Travelers

holding that in some situations an employers’s UM insurer is a third person legally

liable to pay an employee damages arising from a work-related accident. We find no

merit in this argument as it misapplies Travelers.

The Travelers decision involves application of La.R.S. 23:1101. That

particular statute addresses the rights of an injured employee and the party

responsible for paying workers’ compensation benefits arising from that injury to

5 recover their respective losses. Louisiana Revised Statute 23:1101(A) specifically

provides that the payment of workers’ compensation benefits does not affect an

injured employee’s right to recover damages from a third person causing the injury

giving rise to the benefit payments. Additionally, La.R.S. 23:1101(B) provides that

one who has paid workers’ compensation benefits, or has become obligated to pay

such benefits, to an injured employee may bring suit against a third person who

caused the injury to recover for the benefits paid or to be paid. See also, Landry v.

Martin Mills, Inc., 98-1395 (La.App. 3 Cir. 3/3/99), 737 So.2d 58, writ denied,

99-957 (La. 6/4/99), 744 So.2d 625.

A “third person” for the purpose of this statute is defined in La.R.S.

23:1101(A) as a person who has “a legal liability to pay damages” to the injured

worker. Specifically excluded from that definition is “those persons against whom

the said employee’s rights and remedies are limited in R.S. 23:1032.” Id. In

Travelers Ins. Co., 656 So.2d 1000, the supreme court was called upon to determine

if the workers’ compensation carrier could recover from the employer’s UM carrier

workers’ compensation benefits paid to a covered employee injured in an automobile

accident. The employee had been injured by an uninsured/underinsured motorist who

was not a fellow employee. The supreme court concluded that, absent an express

exclusion in the UM policy issued to the employer, the UM carrier was a “third

person” under the definition of La.R.S. 23:1101, and the workers’ compensation

carrier could recover the benefits paid to the injured employee from the UM carrier.

The significant distinction between the facts of our present case and the facts

in Travelers is that the uninsured motorist in Travelers was a third person, while in

our present case Mr. Begnaud is a co-employee. The uninsured motorist in our

6 present case has an immunity that the uninsured motorist in Travelers did not have.

This distinction is clear from the following language in Johnson v. Fireman’s Fund

Ins. Co., 425 So.2d 224 (La.1982) , a decision addressed in the Travelers opinion:

Because the employer is entitled to proceed against a “third person” for reimbursement for compensation paid, it is important to ascertain who is a “third person” for these purposes. The worker compensation statute provides that when an employee’s work-related injury creates a legal liability to pay damages in some person, other than those listed in La.R.S. 23:1032, that person is a “third person.” La.R.S. 23:1101. The parties excluded from the category of third persons by reference to La.R.S. 23:1032 are those persons against whom compensation is the employee’s exclusive remedy, such as the claimant’s employer, co-employees, principal, principal’s employer, partner, or employee of such employer, director of stockholders of employer or principal. See La.R.S. 23:1032. Accordingly, a “third person” is anyone who is legally liable to pay an employee damages because of his injury who is not included within the list of classifications provided by La.R.S. 32:1032. Such a “third person” is amenable to suit by the employer’s worker compensation insurer by virtue of the insurer’s statutory subrogation to all rights and actions to which the employer is entitled. La.R.S. 23:1162.

Johnson, 425 So.2d at 227

As was the case in Travelers, in Johnson neither the uninsured motorist carrier

for the employer nor for the injured employee came within the classifications of

La.R.S. 23:1032. Thus, they did not qualify as “third persons” because they were not

legally liable to pay the employee damages because of his work-related automobile

accident.

Our de novo review of the summary judgment in the light of the settled law of

this state convinces us that it was properly granted, and that Ms. Hebert’s suit to

recover tort damages from her own uninsured motorists insurer was properly

dismissed with prejudice.

7 DISPOSITION

For the reasons set forth herein, we affirm the trial court judgment rendered in

favor of Western World Insurance Company dismissing it as a party defendant. We

assess all costs of this appeal to Angie Hebert.

8 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-992

THIBODEAUX, Chief Judge, dissenting.

The majority denies the ability of the plaintiff to recover from her own

uninsured carrier because there is lacking in this case an underlying uninsured or

underinsured person from whom the plaintiff is legally entitled to recover. The

majority’s rejection of the plaintiff’s request to recover is based on the immunity

provisions of La.R.S. 23:1032. I disagree.

In my view, Travelers Ins. Co. v. Joseph, 95-200 (La. 6/30/95), 656

So.2d 1000 provides a sound and legally legitimate basis upon which to provide relief

to the injured plaintiff. Travelers allowed an employer’s workers’ compensation

carrier to recoup compensation benefits from the employer’s uninsured carrier.

Travelers reasoned that the uninsured carrier was a “third person.” It is anomalous

and unfair to allow an employer’s workers’ compensation carrier to recover from its

uninsured carrier, but deny an employee to recover from her own uninsured carrier.

Why should an employer’s carrier be allowed to proceed against a third party (the

uninsured carrier), while an employee is prohibited from recovering from her own

uninsured carrier? The uninsured carrier is a third party which has a legal liability to

pay damages due to another person’s uninsured or underinsured status. Excluded from the definition of a “third person” in La.R.S. 23:1101(A)

are “those persons against whom the said employee’s rights and remedies are limited

in R.S. 23:1032.” The uninsured carrier is not a third person against whom an

employee or co-employee’s rights are limited under Section 1032, even though that

co-employee cannot recover from her employer or from the co-employee.

I further disagree with the majority for the reasons articulated by Judge

Cooks in her dissent in Sunda v. United Serv. Auto Ass’n, 00-1425 (La.App. 3 Cir.

5/23/01), 787 So.2d 553, writ denied, 01-1835 (La. 10/26/01), 799 So.2d 1142.