Kennedy v. Durden

116 So. 3d 12, 2013 WL 1442220, 2013 La. App. LEXIS 693
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 47,904-CA
StatusPublished
Cited by2 cases

This text of 116 So. 3d 12 (Kennedy v. Durden) 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.

Bluebook
Kennedy v. Durden, 116 So. 3d 12, 2013 WL 1442220, 2013 La. App. LEXIS 693 (La. Ct. App. 2013).

Opinions

PITMAN, J.

_JjC. Bean Transport, Inc. Creditors Trust appeals a judgment from the First Judicial District Court, of Louisiana, Caddo Parish, dismissing its petition to intervene seeking reimbursement and subrogation for workers’ compensation payments previously made to Plaintiffs, Claude B. Kennedy and his wife, Robbie J. Kennedy. For the following reasons, we affirm the trial court’s dismissal.

FACTS

On January 31, 2005, Plaintiff, Claude B. Kennedy (“Claude”), was driving an 18-wheeler owned by his employer, C. Bean Transport, Inc. (“Bean Transport”),1 on Bert Kouns Industrial Loop in Shreveport, Louisiana, when he was rear-ended by Defendant, Mickey Joe Durden (“Durden”). Durden was uninsured. Claude was performing work duties for Bean Transport, an Arkansas company authorized to do business in Louisiana, at the time of the collision. Bean Transport owned the truck and the automobile liability insurance policy covering the truck Claude was driving. Bean Transport paid a portion of Claude’s workers’ compensation benefits as a result of the accident, but currently has a workers’ compensation judgment against it for failure to fulfill the rest of its obligation.

Plaintiffs filed suit to recover from Dur-den; Phoenix Insurance Co. (“Phoenix”), Plaintiffs’ personal automobile insurance carrier; and Bean Transport’s automobile liability insurance carrier, Cherokee Insurance |2Company (“Cherokee”). On February 15, 2008, Bean Transport filed a petition to intervene in the proceeding seeking to recover from Cherokee, as its uninsured/underinsured (UM) motorist coverage carrier, which is statutorily required in Louisiana, any and all workers’ compensation benefits it paid to Claude. Judge Scott J. Crichton granted Plaintiffs’ motion for summary judgment against Intervenor and granted Cherokee’s motion for partial summary judgment, dismissing Bean Transport’s petition to intervene. The district court reasoned that, because of the exclusions agreed upon in the Cherokee automobile liability insurance policy, the policy does not apply to any obligation for which Bean Transport might be liable under workers’ compensation law and Bean Transport does not have a legal basis to maintain claims in the lawsuit. Judge Crichton signed a judgment to that effect on July 10, 2009.

The Cherokee insurance policy at issue contains the following exclusion:

⅝ ⅜ ⅜ ⅜
C. Exclusions:
This insurance does NOT apply to any of the following:
⅜ * ⅝ * ⅝ i'fi
3. Workers’ Compensation:
[14]*14Any obligation for which the “insured” or the “insured’s insurer” may be held liable under any workers’ compensation, disability benefits or unemployment compensation or any similar law.

Bean Transport appealed the judgment to this court, but that appeal was dismissed. The third defendant named in the petition to intervene, |3Purden, did not file a motion for summary judgment; and, without express language making the judgment final against all defendants, Bean Transport’s claim against Durden was not dismissed. The judgment was not final and, thus, could not be reviewed on appeal.

On joint motion of Cherokee and Plaintiffs, Judge Crichton entered an amended judgment dismissing Bean Transport’s intervention against all Defendants based on the Cherokee insurance policy exclusion and expressly stating that it was a final, appealable judgment. Bean Transport now appeals, alleging that the judgment was amended ex parte and that the court erred in determining that the Cherokee insurance policy exclusion applied to its statutorily imposed UM obligation.

Assignment of Error # 1 (verbatim): The trial court erred in amending its July 10, 2009 judgment ex parte and without a hearing or notice to all parties.

Bean Transport contends that the trial court committed error in failing to give notice or allow a hearing before amending its July 10, 2009 judgment. La. C.C.P. art. 1915 allows a court to revise or amend an order or decision at any time prior to rendition of the judgment adjudicating all of the claims and the rights and liabilities of all the parties. In McDonald v. Cason, 01-0932 (La.App. 3d Cir.12/12/01), 801 So.2d 1255, writ denied, 02-0135 (La.3/22/02), 811 So.2d 938, the court interpreted La. C.C.P. art. 1915 as not requiring an evidentiary hearing before amending a judgment. Bean Transport asserts that, since the first ruling did not apply to Durden, as determined by this court, Durden and other parties should have [4been given an opportunity to be heard before a final judgment was submitted.

This case was remanded because the appealed judgment granted summary judgment against only two of the three defendants. On remand, the trial court, in its discretion, amended the judgment to include the third defendant, making the judgment final and appealable. La. C.C.P. art. 1915(A)(1) specifically states that a final judgment may be rendered and signed by the court to dismiss the suit as to intervenors. There are no statutory notice requirements and the court acted in its discretion to dismiss the intervention of Bean Transport against all parties. Accordingly, this assignment is without merit.

Assignment of Error # 2 (verbatim): The trial court committed error when it found that Cherokee Insurance Company’s automobile liability policy issued to C. Bean Transport, Inc. included a contractual exclusion that applied to its statutorily imposed uninsured motorist obligation.

The Cherokee policy contains a workers’ compensation exclusion, previously quoted herein. Bean Transport’s intervention seeks to recover from Cherokee as its UM carrier the sum of the workers’ compensation payments it made to Claude. Bean Transport argues that the district court erred in finding that the exclusions contained in the automobile liability policy issued by Cherokee also apply to UM coverage. Bean Transport further argues that, since La. R.S. 23:1101 allows an employer who pays workers’ compensation benefits to an employee to bring suit to recover from a third party who is obligated to pay the injured employee for damages, [15]*15it has the right to recover from Cherokee as a third-party UM carrier. Travelers Ins. Co. v. Joseph, 95-0200 (La.6/30/95), 656 So.2d 1000. [ ¡¡Further, Bean Transport asserts that Cherokee’s third-party status as its UM provider is separate from the contractual relationship that exists between it and Cherokee under the automobile liability policy and that the exclusion in the liability policy should not apply to the UM coverage.

Louisiana law requires all automobile liability insurance policies to provide UM coverage for any accident which occurs in Louisiana. La. R.S. 22:1295(1)(a)(iii). The insured under an automobile liability policy can specifically reject or alter the UM coverage within the limits of the statute. The rejection or alteration to the statutory limits must be on a standard form and must be signed by the insured. La. R.S. 22:1295(1)(a)(ii). The Cherokee policy does not contain any language addressing UM coverage and there is no rejection or alteration signed by Bean Transport.

Bean Transport’s analysis of the right of an employer to recover from a third-party UM insurer is correct. Travelers Ins. Co. v. Joseph, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
116 So. 3d 12, 2013 WL 1442220, 2013 La. App. LEXIS 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-durden-lactapp-2013.