STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 11-1523
ANTHONY J. BESLIN
VERSUS
ANADARKO PETROLEUM CORP., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 84,457 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
REVERSED AND RENDERED.
Dan Boudreaux Law Offices of Keith R. Giardina 9100 Bluebonnet Centre Blvd., Suite 300 Baton Rouge, LA 70809 (225) 293-7272 Counsel for Intervenor/Appellant: Liberty Mutual Insurance Co. Christopher S. Mann Lance M. Sannino Ian Alexander Macdonald Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. 201 St, Charles, Ave., 47th Floor New Orleans, LA 70170-5100 (504) 582-8000 Counsel for Defendants/Appellees: Van S. Spinks Grey Wolf Drilling Company, L.P. Grey Wolf Holdings Company
Bennett Boyd Anderson, Jr. Keith P. Saltzman Anderson & Dozier P. O. Box 82008 Lafayette, LA 70598-2008 (337) 233 -3366 Counsel for Plaintiff/Appellee: Anthony J. Beslin
Deborah DeRoche Kuchler Leigh Ann T. Schell Kuchler, Polk, Schell, Weiner & Richeson, L.L.C. 1615 Poydras St., #1300 New Orleans, LA 70112 (504) 592-0691 Counsel for Defendant/Appellee: Anadarko Petroleum Corp. PICKETT, Judge.
Intervenor appeals grant of summary judgment in favor of third-party
defendant, dismissing intervenor’s claims against defendant. For the reasons set
forth below, we reverse the judgment and remand for further proceedings.
FACTS
Anthony Beslin was injured in the course and scope of his employment with
Offshore Energy Services, Inc. (OES). Liberty Mutual Insurance Company
(Liberty) issued a policy for workers’ compensation insurance in favor of OES and
paid workers’ compensation benefits to or on behalf of Mr. Beslin. Mr. Beslin
filed suit against Grey Wolf Drilling Company, L.P. (Grey Wolf) and other
defendants to recover damages he suffered as a result of the accident.
Liberty intervened in Mr. Beslin’s lawsuit, seeking reimbursement for the
workers’ compensation disability benefits and medical expenses it paid to or on
behalf of Mr. Beslin and that it is entitled to offset future disability payments and
medical expenses which might become due Mr. Beslin. Grey Wolf asserted in its
Answer, “Intervenor has failed [to] state a cause of action against Grey Wolf for
which relief can be granted,” then denied each allegation set forth in Liberty’s
Petition of Intervention for various reasons. Thereafter, Mr. Beslin and Grey Wolf
settled the law suit without Liberty’s knowledge. Other named defendants had
been dismissed.
At the time Mr. Beslin was injured, OES was performing services on a land
rig pursuant to a Master Service Contract with Anadarko Petroleum Corporation.
The rig was owned by Grey Wolf. Anadarko contracted the rig and drilling
services from Grey Wolf. The Master Service Contract required OES to provide
workers’ compensation insurance and also required OES’s insurers to waive their rights of subrogation against Anadarko and its subcontractors, which included
Grey Wolf.
To satisfy the requirements of the Master Service Contract, OES obtained an
insurance policy from Liberty that included an endorsement entitled “Waiver of
Our Right to Recover from Others Endorsement” which read:
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us).
The “Schedule” on this endorsement provided:
All persons or organizations that are parties to a contract that requires you [OES] to obtain this agreement, provided you executed the contract before the loss.
Liberty and Grey Wolf filed cross motions for summary judgment. Grey
Wolf urged it was entitled to summary judgment dismissing Liberty’s claims
because Liberty waived its right to reimbursement in the policy of workers’
compensation insurance it issued to Mr. Beslin’s employer. The trial court granted
Grey Wolf’s motion for summary judgment and denied Liberty’s motion for
summary judgment. Liberty appeals.
ASSIGNMENT OF ERRORS
Liberty assigns three errors in which it argues:
(1) The trial court erred in not applying La.R.S. 23:1102(C)(1)1;
1 Louisiana Revised Statutes 23:1102(C)(1) provides:
When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant 2 (2) The trial court erred in granting summary judgment because Grey Wolf did not affirmatively plead the waiver of subrogation as a defense in its answer;
(3) Summary judgment was improperly granted because genuine issues of material fact exist as to whether Grey Wolf is entitled to judgment as a matter of law.
DISCUSSION
Finding merit in Liberty’s second assignment of error, we reverse the
judgment of the trial court. In its second assignment of error, Liberty contends the
trial court’s grant of summary judgment in favor of Grey Wolf was error because:
(1) the basis of Grey Wolf’s motion for summary judgment is an affirmative
defense that Grey Wolf was required to set forth in its Answer; (2) Grey Wolf did
not include the affirmative defense in its Answer, and (3) without the affirmative
defense, Grey Wolf failed to prove it was entitled to summary judgment.
Grey Wolf responds that it put Liberty on notice that it contested Liberty’s
right to subrogation when it asserted in its Answer, “Intervenor has failed [to] state
a cause of action against Grey Wolf for which relief can be granted.” Following
this assertion, Grey Wolf denied each allegation set forth in Liberty’s Petition of
Intervention for various reasons. No allegation in Grey Wolf’s Answer relates to
Liberty’s waiver of its right of subrogation.
Appellate courts review summary judgments de novo, using the same
criteria applied by trial courts to determine whether summary judgment is
appropriate. La. Safety Ass’n of Timbermen-Self Insurers Fund v. La. Ins. Guar.
Ass’n, 09-23 (La. 6/26/09), 17 So.3d 350. A motion for summary judgment will be
granted “if the pleadings, depositions, answers to interrogatories, and admissions
to the provisions of Subsection B of this Section. Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee’s claim for future compensation or medical benefits shall be reserved.
3 on file, together with the affidavits, if 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).
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 11-1523
ANTHONY J. BESLIN
VERSUS
ANADARKO PETROLEUM CORP., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 84,457 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
REVERSED AND RENDERED.
Dan Boudreaux Law Offices of Keith R. Giardina 9100 Bluebonnet Centre Blvd., Suite 300 Baton Rouge, LA 70809 (225) 293-7272 Counsel for Intervenor/Appellant: Liberty Mutual Insurance Co. Christopher S. Mann Lance M. Sannino Ian Alexander Macdonald Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. 201 St, Charles, Ave., 47th Floor New Orleans, LA 70170-5100 (504) 582-8000 Counsel for Defendants/Appellees: Van S. Spinks Grey Wolf Drilling Company, L.P. Grey Wolf Holdings Company
Bennett Boyd Anderson, Jr. Keith P. Saltzman Anderson & Dozier P. O. Box 82008 Lafayette, LA 70598-2008 (337) 233 -3366 Counsel for Plaintiff/Appellee: Anthony J. Beslin
Deborah DeRoche Kuchler Leigh Ann T. Schell Kuchler, Polk, Schell, Weiner & Richeson, L.L.C. 1615 Poydras St., #1300 New Orleans, LA 70112 (504) 592-0691 Counsel for Defendant/Appellee: Anadarko Petroleum Corp. PICKETT, Judge.
Intervenor appeals grant of summary judgment in favor of third-party
defendant, dismissing intervenor’s claims against defendant. For the reasons set
forth below, we reverse the judgment and remand for further proceedings.
FACTS
Anthony Beslin was injured in the course and scope of his employment with
Offshore Energy Services, Inc. (OES). Liberty Mutual Insurance Company
(Liberty) issued a policy for workers’ compensation insurance in favor of OES and
paid workers’ compensation benefits to or on behalf of Mr. Beslin. Mr. Beslin
filed suit against Grey Wolf Drilling Company, L.P. (Grey Wolf) and other
defendants to recover damages he suffered as a result of the accident.
Liberty intervened in Mr. Beslin’s lawsuit, seeking reimbursement for the
workers’ compensation disability benefits and medical expenses it paid to or on
behalf of Mr. Beslin and that it is entitled to offset future disability payments and
medical expenses which might become due Mr. Beslin. Grey Wolf asserted in its
Answer, “Intervenor has failed [to] state a cause of action against Grey Wolf for
which relief can be granted,” then denied each allegation set forth in Liberty’s
Petition of Intervention for various reasons. Thereafter, Mr. Beslin and Grey Wolf
settled the law suit without Liberty’s knowledge. Other named defendants had
been dismissed.
At the time Mr. Beslin was injured, OES was performing services on a land
rig pursuant to a Master Service Contract with Anadarko Petroleum Corporation.
The rig was owned by Grey Wolf. Anadarko contracted the rig and drilling
services from Grey Wolf. The Master Service Contract required OES to provide
workers’ compensation insurance and also required OES’s insurers to waive their rights of subrogation against Anadarko and its subcontractors, which included
Grey Wolf.
To satisfy the requirements of the Master Service Contract, OES obtained an
insurance policy from Liberty that included an endorsement entitled “Waiver of
Our Right to Recover from Others Endorsement” which read:
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us).
The “Schedule” on this endorsement provided:
All persons or organizations that are parties to a contract that requires you [OES] to obtain this agreement, provided you executed the contract before the loss.
Liberty and Grey Wolf filed cross motions for summary judgment. Grey
Wolf urged it was entitled to summary judgment dismissing Liberty’s claims
because Liberty waived its right to reimbursement in the policy of workers’
compensation insurance it issued to Mr. Beslin’s employer. The trial court granted
Grey Wolf’s motion for summary judgment and denied Liberty’s motion for
summary judgment. Liberty appeals.
ASSIGNMENT OF ERRORS
Liberty assigns three errors in which it argues:
(1) The trial court erred in not applying La.R.S. 23:1102(C)(1)1;
1 Louisiana Revised Statutes 23:1102(C)(1) provides:
When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant 2 (2) The trial court erred in granting summary judgment because Grey Wolf did not affirmatively plead the waiver of subrogation as a defense in its answer;
(3) Summary judgment was improperly granted because genuine issues of material fact exist as to whether Grey Wolf is entitled to judgment as a matter of law.
DISCUSSION
Finding merit in Liberty’s second assignment of error, we reverse the
judgment of the trial court. In its second assignment of error, Liberty contends the
trial court’s grant of summary judgment in favor of Grey Wolf was error because:
(1) the basis of Grey Wolf’s motion for summary judgment is an affirmative
defense that Grey Wolf was required to set forth in its Answer; (2) Grey Wolf did
not include the affirmative defense in its Answer, and (3) without the affirmative
defense, Grey Wolf failed to prove it was entitled to summary judgment.
Grey Wolf responds that it put Liberty on notice that it contested Liberty’s
right to subrogation when it asserted in its Answer, “Intervenor has failed [to] state
a cause of action against Grey Wolf for which relief can be granted.” Following
this assertion, Grey Wolf denied each allegation set forth in Liberty’s Petition of
Intervention for various reasons. No allegation in Grey Wolf’s Answer relates to
Liberty’s waiver of its right of subrogation.
Appellate courts review summary judgments de novo, using the same
criteria applied by trial courts to determine whether summary judgment is
appropriate. La. Safety Ass’n of Timbermen-Self Insurers Fund v. La. Ins. Guar.
Ass’n, 09-23 (La. 6/26/09), 17 So.3d 350. A motion for summary judgment will be
granted “if the pleadings, depositions, answers to interrogatories, and admissions
to the provisions of Subsection B of this Section. Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee’s claim for future compensation or medical benefits shall be reserved.
3 on file, together with the affidavits, if 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). Summary judgment is favored and shall be construed “to
secure the just, speedy, and inexpensive determination of every action.” La.Code
Civ.P. art. 966(A)(2).
The initial burden of proof is on the movant to show that no genuine issue of
material fact exists. La.Code Civ.P. art. 966(C)(2). If the movant will not bear the
burden of proof at trial, he need not negate all essential elements of the adverse
party’s claim. He must, however, point out that there is an absence of factual
support for one or more elements essential to the claim. Id. Once the movant has
met his initial burden of proof, the burden shifts to the adverse party “to produce
factual support sufficient to establish that he will be able to satisfy his evidentiary
burden at trial.” Id.
Pursuant to La.Code Civ.P. art. 1005, a defendant’s answer “shall set forth
affirmatively . . . estoppel, extinguishment of the obligation in any manner . . . and
any other matter constituting an affirmative defense.” Article 1005 further
provides that if an affirmative defense is mistakenly designated as a peremptory
exception or a peremptory exception has been mistakenly designated as an
affirmative defense, “and if justice so requires, the court . . . shall treat the pleading
as if there had been a proper designation.”
The exception of no right of action tests whether the plaintiff is the person in
whose favor the law grants the cause of action asserted in the petition. Howard v.
Adm’rs of Tulane Educ. Fund, 07–2224 (La. 7/1/08), 986 So.2d 47. It assumes the
petition states a valid cause of action for some person and questions whether the
plaintiff in the case at issue is a member of the class that has a legal interest in the
subject matter of the litigation. Reese v. State Dep’t of Pub. Safety and Corr., 03- 4 1615 (La. 2/20/04), 866 So.2d 244. All well-pleaded facts in the petition are taken
as true. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-
2275, 10-2279, 10-2289 (La. 10/25/11), ___ So.3d ___.
Liberty asserted in its Petition of Intervention that it is entitled to be
reimbursed for the workers’ compensation disability benefits and medical expenses
it paid for Mr. Beslin and that it is entitled to offset future disability payments and
medical expenses which might become due Mr. Beslin against any amounts he
recovered from third parties. This right of action is provided to workers’
compensation insurers in La.R.S. 23:1101. Accordingly, Liberty does state a right
of action in its Petition of Intervention.
The basis of Grey Wolf’s Motion for Summary Judgment is that Liberty
waived its right to reimbursement. Waiver is an affirmative defense which must be
expressly plead in the answer. Garland v. Town of Ville Platte, 198 So.2d 451
(La.App. 3 Cir. 1967). Furthermore, the exception of no right of action cannot be
used to raise an affirmative defense. Madisonville State Bank v. Glick, 05-1372
(La.App. 3 Cir. 5/3/06), 930 So.2d 263. Therefore, the proviso of Article 1005
does not assist Grey Wolf, and its failure to plead Liberty’s waiver of its right to
subrogation as an affirmative defense renders the trial court’s grant of summary
judgment erroneous.
DISPOSITION
The judgment of the trial court granting summary judgment in favor of
Grey Wolf is reversed, and this matter is remanded for further proceedings. All
costs are assessed to Grey Wolf.