Dodson v. Old Republic Ins Co

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 25, 2000
• Docket: 99-30917
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30917 Summary Calendar

RICHARD R. DODSON,

Plaintiff-Appellee,

versus

LOUISIANA WORKERS' COMPENSATION CORPORATION,

Intervenor-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana (98-CV-3041-N)

January 20, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Richard Dodson, Jr. was injured in an auto accident while in

the scope and course of his employment with Ameritek Heat Treating

Services, Inc. Ameritek had an insurance policy with Old Republic

Insurance Co., which included uninsured/underinsured motorist

coverage. The policy contained an exclusion that provided "[t]his

insurance does not apply to . . . the direct or indirect benefit of

any insurer or self-insurer under any workers' compensation

disability benefits or similar law." Ameritek also had a policy of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. workers' compensation insurance with Louisiana Workers'

Compensation Corporation. Louisiana Workers' Compensation Corp.

has paid benefits as a result of Dodson's injury, and so has Old

Republic.

Louisiana Workers' Compensation Corp. intervened in Dodson's

suit against Old Republic, seeking, inter alia, dollar-for-dollar

credits against future obligations for amounts paid by Old Republic

as a result of Dodson's injury. Old Republic and Dodson filed

motions for summary judgment seeking dismissal of Louisiana

Workers' Compensation Corp.'s claims, and Old Republic also sought

credits in the amount of Louisiana Workers' Compensation Corp.'s

payments. Louisiana Workers' Compensation Corp. moved for summary

judgment on its claims for subrogation, reimbursement and credits

for future obligations. The district court granted Dodson's and

Old Republic's motions, holding that Old Republic was entitled to

a credit in the amount of Louisiana Workers' Compensation Corp.'s

payments and dismissing Louisiana Workers' Compensation Corp.'s

claims. Louisiana Workers' Compensation Corp. appeals one issue:

the district court's determination that it was not due credits for

future obligations.

Under Louisiana law, a workers' compensation insurer has a

right of reimbursement against "legally liable third persons." See

LSA-R.S. 23:1101. "Third persons" includes uninsured/underinsured

motorist insurers. See Travelers Ins. Co. v. Joseph. 656 So.2d

1000, 1003 (La. 1995). However, in Travelers, the Louisiana

Supreme Court held that an uninsured/underinsured motorist insurer

2 may exclude reimbursement of the workers' compensation carrier in

its policy. See 656 So.2d at 1005 (La. 1995). The court found no

statutory prohibition on a contractual exclusion of reimbursement

the compensation carrier might otherwise recover. See Travelers,

656 So.2d at 1004.

The exclusion contained in Old Republic's policy is the same

as that examined by the Louisiana Supreme Court in Travelers.

Following Travelers, Louisiana appellate courts have held that the

contractual language "direct or indirect benefit" covers credits or

reimbursements against future obligations of a compensation carrier

as well as reimbursement of compensation already paid. See Landry

v. Martin Mills, Inc., 737 So.2d 58, 62 (La. App. 3 Cir. 1999),

writ denied, 1999 WL 408136 (La. June 4, 1999); LeJeune v.

Brewster, 722 So.2d 74, 76 (La. App. 1 Cir. 1998); Watson v.

Funderburk, 720 So.2d 808-810-11 (La. App. 3 Cir. 1998), writ

denied, 736 So.2d 834 (La. 1999); Cleaning Specialists, Inc. v.

Johnson, 695 So.2d 562, 565 (La. App. 4 Cir. 1997), writ denied,

701 So.2d 210 (La. 1997). These courts would deny Louisiana

Workers' Compensation Corp. the credits it claims.

If a state's highest court has not decided an issue, we must

determine as best we can what that court would decide. See St.

Paul Fire & Marine v. Convalescent Servs., 193 F.3d 340, 342 (5th

Cir. 1999). Louisiana Workers' Compensation Corp. argues that

Watson and Cleaning Specialists were wrongly decided because these

decisions allow parties to an uninsured/underinsured motorist

policy to extinguish a workers' compensation carrier's right to

3 credits against its future obligations. Absent a decision from a

state's highest court, a decision of an intermediate state

appellate court "is a datum for ascertaining state law which is not

to be disregarded by a federal court unless it is convinced by

other persuasive data that the highest court of the state would

decide otherwise." West v. American Tel. & Tel. Co., 311 U.S. 223,

237 (1940). We are persuaded Louisiana Workers' Compensation Corp.

is not entitled to the credits it seeks.

AFFIRMED.