Richey v. Vanliner Ins. Co.
This text of 696 So. 2d 190 (Richey v. Vanliner Ins. Co.) 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.
Opinion
Michael F. RICHEY, Plaintiff-Appellant,
v.
VANLINER INSURANCE COMPANY, Defendant-Appellee.
Court of Appeal of Louisiana, Third Circuit.
*191 Christopher R. Philipp, Lafayette, for Michael F. Richey.
John Hatch Hughes, Lafayette, for Vanliner Ins. Co.
Before DOUCET, C.J., DECUIR, J., and BABINEAUX[*], J. Pro Tem.
DECUIR, Judge.
In this workers' compensation case, Michael Richey appeals a judgment of the hearing officer denying continued SEB benefits. Defendant, Vanliner Insurance Company also appeals alleging several errors, the most serious being that the hearing officer erred in failing to forfeit Richey's benefits based on fraud under La.R.S. 23:1208.
PROCEDURAL HISTORY
The parties first went to trial in May, 1994. Judgment was rendered in favor of Richey awarding temporary, total disability benefits from September 6, 1993, the date of the injury, through October 21, 1993, and supplemental earnings benefits from October 21, 1993 at the rate of $1371.70 per month.
On January 20, 1995, Richey filed a disputed claim form 1008 with the Office of Workers' Compensation alleging that Vanliner had discontinued his supplemental earnings benefits and had failed to pay the judgment timely. Shortly thereafter, Vanliner filed a motion to modify the judgment previously rendered. The cases were consolidated and the judgment from the hearing on those consolidated issues forms the basis of this appeal.
FACTS
The hearing officer's written reasons for judgment succinctly present the facts of this case and more importantly clearly delineate her factual findings. Accordingly, we will adopt the following portion of the hearing officer's reasons as our own:
Richey, a Connecticut resident, is a truckdriver for McCollister's Moving & Storage, and was employed in that capacity on September 6, 1993 when he sustained the injury complained of. The details of the accident were not contested in the original proceeding. In the original proceeding, Richey essentially testified that on September 6, 1993, he was stopped on Interestate [sic] 10 when he thought his truck was rear ended, and when he got out of the vehicle to check, he was run over by another vehicle.
At the second trial the defendants presented additional evidence as to how the accident occurred. The testimony from the various witnesses is not entirely consistent but the court finds that Richey was traveling westbound on Interstate 10. The Labor Day traffic was moving slowly due to an accident. John Lowrence [sic] was driving a pickup truck with a boat on a trailer and was attempting to travel on the highway shoulder. As Lowrance approached the Richey vehicle, the Richey vehicle edged onto the shoulder, partially blocking Lowrance's path. Richey exited his vehicle and exchanged heated words with John's wife, Regina Lowrance, who was sitting in the front passenger seat. Richey threatened to shoot her and her husband. Richey then approached the driver's side and hit either the driver's window or door. John Lowrance drove his vehicle around the Richey vehicle. Richey jumped on the Lowrance vehicle, and beat on it with a lawn chair pulled from the cab *192 of the pickup. He then fell off and was run over. His leg was broken.
Richey was off of work until February or March of 1994. When he returned to work, he had a co-driver, Theresa Banker, to whom he paid 50% of his earnings. Richey testified that Theresa Banker was hired by him because he was unable to handle all of his driver duties after his injury. Theresa Banker corroborated this testimony. However, the evidence clearly establishes that Theresa Banker had applied to drive with Richey before the accident and, in fact, the two had been codrivers previously for other employers. Banker was in the truck with Richey at the time of the accident, and there is some evidence that she may have even been driving the Richey vehicle at the time of the accident.
The issues presented by the events leading up to the injury, and the role played by Theresa Banker were not fully presented in the original trial. This court's original judgment awarded past due and continuing benefits. Notice of judgment was issued on October 5, 1994. A check for payment of the past due benefits was received by Richey's counsel on November 17, 1994. Supplemental earnings benefits were not paid for November, December and January until February 23, 1995. Checks issued on February 23, March 1, and March 8 of 1995 were mailed to Richey's parents' address in Florida, where he had convalesced after his injury, but were apparently not received by Richey. The check issued for April, 1995 benefits was mailed to his Connecticut address and was received. This was the last payment of benefits until September, 1995. In September, Richey underwent a procedure to remove a rod from his leg, and benefits were reinstituted and were being paid at the time of trial.
FRAUD
By its first assignment, Vanliner contends that the hearing officer erred in failing to order forfeiture of benefits under La.R.S. 23:1208. We agree.
La.R.S. 23:1208(A) provides in pertinent part:
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
La.R.S. 23:1208(E) provides that:
E. Any employee violating this Section shall, upon determination by hearing officer, forfeit any right to compensation benefits under this Chapter.
The supreme court in Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95); 660 So.2d 7, noted that in order to forfeit benefits, La.R.S. 23:1208 requires that 1) there is a false statement, 2) it is willfully made, and 3) it is made for the purpose of obtaining or defeating any benefit or payment.
In the present case, the hearing officer found that Richey lied when he testified that his co-driver was hired because of his injuries. He lied further by falsifying his driver's logs, as did his co-driver. Both of these instances meet the first requirement of a false statement under Resweber. The court found further that the payments to Richey's co-driver were inflated and that the purpose was to ensure payment or supplemental earnings benefits. The hearing officer, thereby, found the requirements that the statements be willfully made and for the purposes of obtaining benefits.
The hearing officer's reasons indicate the only reason forfeiture was not ordered is that defendants failed to plead fraud under La.R.S. 23:1208. Vanliner points out, and the record reflects, that the issue was raised during the hearing. When, during cross examination, it became apparent that Richey had lied, Vanliner moved to assert its rights under the fraud provisions of La.R.S. 23:1208. Vanliner, thereafter, filed a brief in support of this issue which appears in the record. Vanliner contends this was sufficient to put the issue before the court. We agree.
Vanliner raised the issue as soon as evidence of Richey's fraud became evident. Prior to Richey's testimony, Vanliner had no basis to plead fraud. Moreover, the fraud in question is a fraud upon the court as well as *193 the defendant. As such, we will not support claimant's fraud by technical application of rules related to pleadings.
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Cite This Page — Counsel Stack
696 So. 2d 190, 97 La.App. 3 Cir. 121, 1997 La. App. LEXIS 1529, 1997 WL 292706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richey-v-vanliner-ins-co-lactapp-1997.