Fidelity Union Casualty Co. v. Carpenter

125 So. 504, 12 La. App. 321, 1929 La. App. LEXIS 798

• Court: Louisiana Court of Appeal
• Decided: December 31, 1929
• Docket: No. 3685
• Status: Published

Opinions

ODOM, J.

Lamar Gordy was employed by the Dixie Roofing Company, and while engaged in performing services for which he was employed, was injured in an automobile collision between a car on which he was riding and one owned by the defendant, Carpenter. A dispute arose between Gordy and his employer as to whether he was entitled to compensation under the Workmen’s Compensation laws, and in a suit which followed he was awarded compensation which, together with all expenses allowed by the court, amounted to $1,033.05. The plaintiff in the present suit was the insurer of the Dixie Roofing Company, and as such was called upon to pay and did pay the above amount on account of the accidental injury to Gordy.

The present suit is by the insurer to recover said amount from Carpenter, a third person, by whose fault, it is alleged, Gordy was injured. Plaintiff in its petition sets out all the facts and circumstances connected with the case, and especially alleged that the collision between defendant’s truck and the automobile on which Gordy was riding was due solely to the fault and negligence of the truck driver.

Defendant filed an exception of no cause and no right of action which was overruled. Reserving his rights under the exception, defendant answered denying any negligence on the part of his driver, and alleged that Gordy was himself guilty of negligence which so contributed to the accident' as to bar recovery. Plaintiff’s demands were rejected by the district court, and it appealed.

ON EXCEPTION OP NO CAUSE OP ACTION

The exception of no cause and no right of action was properly overruled. It is not contended that plaintiff’s allegations concerning the injury and the causes thereof are not sufficient and ample to support an action for damages. But counsel for defendant say in brief that plaintiff “does not sue as legal subrogee of the Dixie Roofing Company nor as conventional subrogee of Dixie Roofing Company or Lamar Gordy, nor has it brought itself within the provisions of sec. 7, Act 247 of 1920.”

Plaintiff alleged that it was the insurer of the Dixie Roofing Company and that as such had paid out the sum sued for on account. of the injuries to Gordy. Section 7, Act No. 247 of 1920, p. 468, provides that in case an employee is injured under circumstances creating liability on the part of some person other than the employer to pay damages, the injured employee may claim compensation from his employer, and the payment of such compensation by the employer shall not affect the injured employee’s right of action against such third person for damages nor be regarded as establishing the measure of damages for such injury, and that any employer having paid compensation under the act may bring suit against such third person to recover any amount which he has paid as compensation.

But the above act in specific terms gives no right of action to the insurer which has paid the compensation for the employer to recover the amount so paid from the third person causing the injury. But Act No. 85 of 1926, which amends the above-cited act, does in specific terms subrogate the insurer who has paid compensation to all the rights and actions to which the employer is entitled. Section 23 of the latter act (page 124) reads as follows: “The insurer is hereby subrogated to all the rights and actions which the employer is entitled to under this Act.”

Being legally subrogated to the rights and actions of the employer, the insurer can bring its suit under the statute as legal subrogee or under article 2315 of the Civil Code. London Guaranty & Accident Insurance Company v. V. S. & P. Railway Company, 153 La. 287, 95 So. 771.

Clearly, therefore, it is unnecessary for the insurer to obtain a conventional subrogation from either the employer or employee, nor is it necessary for the insurer in bringing his suit to specifically state in its complaint whether it sues as legal subrogee or whether it claims under article 2315 of the Code. All that is necessary is for it to set out facts sufficient to show that it is entitled to recover under the law and this plaintiff has done.

But counsel contend that plaintiff has not brought itself within the terms of section 7, Act No. 247 of 1920, p. 468, with reference to notice to the injured employee of bringing the suit. The present suit was filed on June -28, 1928. Later, and before answer was filed, counsel for plaintiff wrote the attorneys for Lamar- Gordy, the injured employee, that they had filed suit and named the court in which it was filed, and asked to be advised if Gordy desired to intervene as party plaintiff. Whereupon counsel for Gordy wrote the attorneys for plaintiff that their client did not desire to intervene in the suit. This was a sufficient compliance with the statute as to notice.