Carter v. Texas Industries

693 So. 2d 853, 96 La.App. 3 Cir. 1343, 1997 La. App. LEXIS 1208, 1997 WL 209709
CourtLouisiana Court of Appeal
DecidedApril 30, 1997
DocketNo. 96-1343
StatusPublished
Cited by2 cases

This text of 693 So. 2d 853 (Carter v. Texas Industries) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carter v. Texas Industries, 693 So. 2d 853, 96 La.App. 3 Cir. 1343, 1997 La. App. LEXIS 1208, 1997 WL 209709 (La. Ct. App. 1997).

Opinion

liAMY, Judge.

The defendants, Texas Industries, d/b/a/ Louisiana Industries, and Transportation Insurance Company, appeal the ruling of the hearing officer finding them liable for attorney’s fees and expenses following a hearing on a Motion to Compel during the discovery process. For the following reasons, we reverse in part, and affirm in part.

DISCUSSION OF THE RECORD

The plaintiff, Willie L. Carter, is represented in this matter by his wife and his grandchildren.1 Carter, now deceased, was an employee of the defendant, Texas Industries. In 1985, Carter suffered a syncopal episode due to ventricular fibrillation while at work. Following his recovery, his physicians found that this episode was work-related and further instructed him not to return to work. The employer was 12subsequently ordered to pay worker’s compensation disability benefits. These payments were affirmed by a panel of this court in 1989.2

Carter died in 1995. The death certificate indicates that the cause of death was cardiac arrhythmia. Carter’s wife and grandchildren filed an LDOL-WC-1008 form seeking worker’s compensation death benefits. The plaintiffs contend, therefore, that the death is related to Carter’s previous work-related injury and are seeking worker’s compensation death benefits. The defendants deny this claim. The instant matter arises from the proceedings in that action.

During the discovery process, the plaintiffs delivered to the defendants, in September 1995, Interrogatories and Requests for Production of Documents. One of the requests stated the following:

Please provide insurance records, reports, applications, correspondence, inter-office memos and all records made and kept by Texas Industries and Transportation Insurance Company employees and representatives concerning claimants’ demand for Workers’ Compensation death benefits, so as to include the complete claim and investigative files and every note, document and piece of paper therein.

The record indicates that the defendants responded to these requests in December 1995. However, Request for Production Number 5, set forth above, was objected to on the basis of Broussard v. State Farm Mutual Automobile Ins. Co., 519 So.2d 136, (La.1988). In Broussard, the Louisiana Supreme Court ruled, in a memorandum decision, that blan[855]*855ket production of attorney’s and insurer’s files is not permissible, but that a request must comport with La.Code Civ.P. art. 1422.

IgThe record indicates that the plaintiffs responded to this objection with a Supplemental Request for Production in January 1996. In the new request, the plaintiffs asked for the following:

Please provide insurance records, reports, applications, correspondence, inter-office memos and all records made and kept by Texas Industries and Transportation Insurance Company employees and representatives with regard to your refusal to pay claimants’ demand for Workers’ Compensation benefits, medical benefits and death benefits, so as to include the complete claim and investigative files and every note, document and piece of paper therein, excluding those which were prepared in anticipation of litigation.

(Emphasis added). After sending the supplemental request, the plaintiffs sought and received a subpoena duces tecum which was signed by the hearing officer on January 5, 1996. This subpoena directed the defendants to produce the documents called for in the supplemental request before the Office of Workers’ Compensation Administration in Winnfield on January 10, 1996. The defendants responded on January 11th by filing a Motion to Quash Subpoena Duces Tecum, or, Alternatively, Motion for Protective Order.3 In that Motion for Protective Order, the defendants contend that the subpoena duces tecum is over broad and that it attempts to recover documents which are “privileged, irrelevant, and immaterial.”

Finally, in response to the Motion to Quash, the plaintiffs filed a Motion to Compel Discovery and For Other Relief on January 22, 1996. The record indicates that, on February 28th, the hearing officer heard both the Motion to Compel ^Discovery and the Motion for Protective Order in Winnfield, Louisiana. At that hearing, the officer stated that he granted the plaintiffs’ Motion to Compel and denied the defendants’ Motion for Protective Order. However, despite so ruling, he ordered an in camera inspection of the contested materials. Also at this February 28 hearing, the plaintiffs asked for attorney’s fees and expenses, but the hearing officer declined to rule on this request until the in camera inspection was had.

The record indicates that the in camera inspection was conducted in the hearing officer’s chambers on April 9, 1996 in Shreveport with both parties’ counsel in attendance, as ordered by the hearing officer. The transcript of the proceedings reflects that the hearing officer determined that the contested documents produced by the defendants were, indeed, confidential or were irrelevant. Despite this finding, the hearing officer then awarded the plaintiffs $5,000.00 in attorney’s fees and $850.00 in expenses. The hearing officer stated that these awards were based solely on his granting of the plaintiffs Motion to Compel. The defendants now appeal the award of these fees and expenses. The defendants also appeal the hearing officer’s refusal to award them reasonable expenses in relation to the discovery.

LAW

Attorney’s Fees

The defendants first argue that the hearing officer erred in awarding $5,000.00 in attorney’s fees with regard to the disputed discovery. The defendants maintain that since the hearing officer did not compel the production of discovery requests, that an award of attorney’s fees is not appropriate.

IsArticle 1469 of the Louisiana Code of Civil Procedure outlines not only the procedure for seeking a Motion to Compel Discovery, but also dictates the award of attorney’s fees and expenses with regard to that motion. The article provides, in pertinent part, that:

(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or [856]*856attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
A panel of this court has previously stated: Code of Civil Procedure Article 1469 does not grant the statutory authority for the award of attorney’s fees, where ...

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693 So. 2d 853, 96 La.App. 3 Cir. 1343, 1997 La. App. LEXIS 1208, 1997 WL 209709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-texas-industries-lactapp-1997.