Locicero v. New Orleans Paint & Drywall Service

86 So. 3d 647, 11 La.App. 5 Cir. 587, 2012 WL 206277, 2012 La. App. LEXIS 37
CourtLouisiana Court of Appeal
DecidedJanuary 24, 2012
DocketNo. 11-CA-587
StatusPublished

This text of 86 So. 3d 647 (Locicero v. New Orleans Paint & Drywall Service) 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
Locicero v. New Orleans Paint & Drywall Service, 86 So. 3d 647, 11 La.App. 5 Cir. 587, 2012 WL 206277, 2012 La. App. LEXIS 37 (La. Ct. App. 2012).

Opinion

JUDE G. GRAVOIS, Judge.

[^Plaintiff has appealed a trial court’s judgment which dismissed his workers’ compensation claim against his employer’s alleged workers’ compensation insurer, finding that his employer was not covered by a policy of workers’ compensation insurance at the time of plaintiffs work-related accident. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 12, 2005, plaintiff, Louis Lo-cicero,1 was injured in a work-related accident while employed by Herrin, Ltd., d/b/a New Orleans Paint and Drywall Services (“N.O. Paint”). After being notified of the accident, Louisiana Workers Compensation Corporation (“LWCC”), the alleged workers’ | scompensation insurance carrier of N.O. Paint, denied coverage for plaintiffs accident. Through a letter from its counsel, LWCC advised N.O. Paint that its application for workers’ compensation insurance was filled out on October 11, 2005 and had a proposed effective date of October 12, 2005. The application was mailed by the agent to LWCC and was postmarked October 12, 2005. It was received by LWCC on October 13, 2005. The agent did not have authority to bind the policy. Further, in accordance with its agreement with the agent, LWCC bound coverage effective at 12:01 a.m. on October 13, 2005, the day after the postmark on the application. LWCC concluded that since the policy is an “occurrence” policy and the policy became effective after the date of the accident, the policy provided no coverage for plaintiffs accident.

On November 16, 2005, plaintiff filed a disputed claim for compensation. LWCC answered the claim and asserted that there was no coverage on the date of the accident. The parties each filed motions for summary judgment on the issue of coverage, which were denied by the trial court. The matter thereafter proceeded to trial solely on the issue of coverage. At trial, the parties submitted eleven joint [649]*649exhibits which had previously been submitted with the motions for summary judgment. LWCC also submitted one additional exhibit, an affidavit of Gregg Felger, an employee of the United States Postal Service. At the conclusion of arguments, the trial court took the matter under advisement. In due course, the trial court rendered a judgment finding that the envelope containing N.O. Paint’s workers’ compensation insurance application was postmarked October 12, 2005, and accordingly, LWCC’s policy was effective on October 13, 2005. Therefore, N.O. Paint was not covered by a policy of workers’ compensation insurance issued by LWCC on October 12, 2005, the date of the accident. Plaintiffs | ¿workers’ compensation claim against LWCC was accordingly dismissed with prejudice. This timely appeal followed.

ASSIGNMENT OF ERROR

The sole issue to be decided on appeal is whether the trial judge erred in ruling that N.O. Paint was not covered by a policy of workers’ compensation insurance issued by LWCC at the time of the accident. Plaintiff argues that the trial court erred in relying on a Baton Rouge postmark that did not “adequately represent when the [United States Postal Service] assumed custody” of the application. Plaintiff contends that the trial court relied on “an incorrect postmark and resulted in an inequitable outcome.”

The documents admitted into evidence include the deposition of Mr. Danny Her-rin, the owner of N.O. Paint, who testified that he did not have workers’ compensation insurance coverage at the time Hurricane Katrina hit the New Orleans area on August 29, 2005. He decided to obtain workers’ compensation insurance in October 2005 while his company was in the process of doing a drywall and painting job at Kellett Lumber Company. On the advice of a friend, he contacted Lodrigues & Associates (“Lodrigues”), an agent of LWCC. On October 11, 2005, he went into Lodrigues’ office and met with Debora Hibbs to fill out and sign the application for workers’ compensation insurance. Mr. Herrin testified that Ms. Hibbs told him that she had to get the application postmarked that day and that he would have coverage the next day, October 12, 2005. Assuming coverage would be in effect, Mr. Herrin explained that on the next day, October 12, 2005, he allowed plaintiff to climb on scaffolding to paint. At some point on October 12, 2005, plaintiff fell off of the scaffolding and was seriously injured. Mr. Herrin testified that after the accident, he contacted Ms. Hibbs who told him |fithat she went to the post office and the application was postmarked on the day the application was made, thereby providing him with workers’ compensation insurance coverage for this accident.

Ms. Hibbs deposition was also admitted into evidence. She testified that she is an agent for LWCC. Pursuant to Lodrigues’ agreement with LWCC, coverage on a policy becomes effective the day after the policy application is postmarked. She recalled meeting with Mr. Herrin late in the afternoon on October 11, 2005 and telling him that she would do her best to get the application to the post office that day. Ms. Hibbs explained that after the application was completed, she put it on a desk in the office and at the end of the day someone in the office mailed it. She explained that her job duties did not include going to the post office and she did not know who delivered the application to the post office. She wrote October 12, 2005 as the proposed date of coverage for the policy, which presupposed that the application would be postmarked October 11, 2005. Ms. Hibbs explained that the applications were usually mailed at the Harahan Post [650]*650Office which was near her office. She testified that the envelope for this application was postmarked October 12, 2005 in Baton Rouge, Louisiana. She assumed that the application was mailed at the Har-ahan Post Office, but was taken to Baton Rouge to get postmarked due to disruptions in the postal service after Hurricane Katrina. Ms. Hibbs testified that had Mr. Herrin told her that he would have employees working the next day, she would have informed him that getting the application to the post office does not confirm coverage.

The deposition of Sally Nesmith was also admitted into evidence. Ms. Nesmith testified that she was the director of operations for LWCC. She explained that pursuant to LWCC’s “pricing authority” agreement with its agent in this case, in 2005 when a paper application was completed, coverage was effective the day Rafter the postmark on the application, assuming that the application was compete and was approved and accepted. Ms. Nes-mith explained that this procedure was put into place to avoid people sustaining an injury, going to the agent and filling out an application, and then expecting to have coverage on the day the application is filled out. Ms. Nesmith testified that the agent in this case did not have binding authority. She explained that the envelope in this case was stamped by LWCC as having been received on October 13, 2005, and that the effective date of the policy was October 13, 2005, the day after the envelope was postmarked. Ms. Nesmith testified that she did not know of any incidences in which LWCC made an exception to the postmark rule.

A copy of the envelope in which the application was mailed was admitted into evidence. This envelope bears a postmark date of October 12, 2005 at Baton Rouge.

Plaintiff argues that based on the testimony of Ms. Hibbs, N.O. Paint’s application was mailed at the Harahan Post Office on October 11, 2005 before 5:00 p.m. so that it would be postmarked that day.

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86 So. 3d 647, 11 La.App. 5 Cir. 587, 2012 WL 206277, 2012 La. App. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/locicero-v-new-orleans-paint-drywall-service-lactapp-2012.