STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 16-427
TOMMIE HEBERT, ET UX
VERSUS
J. ORAN RICHARD, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C2008-1200 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and Billy Howard Ezell, Judges.
AFFIRMED AS AMENDED. James Cleverly Klick Joseph E. (Jed) Cain Mikalia M. Kott Danielle T. Hufft Herman, Herman & Katz, L.L.C. 820 O’Keefe Avenue New Orleans, LA 70113 (504) 581-4892 COUNSEL FOR PLAINTIFFS/APPELLANTS: Tommie Hebert Melissa Anne Hebert
Joseph R. Joy, III Joseph Joy & Associates P. O. Box 4929 Lafayette, LA 70502 (337) 232-8123 COUNSEL FOR PLAINTIFFS/APPELLEES: Melissa Anne Hebert Tommie Hebert
Kenneth Hugh Laborde Brendan P. Doherty Gieger, Laborde & Laperouse 701 Poydras, Ste 4800 New Orleans, LA 70139-4800 (504) 561-0400 COUNSEL FOR DEFENDANTS/APPELLEES: J. Oran Richard Industrial Helicopters, Inc. Allianz Global Risks US Insurance Company Game Management, Inc. Michael David Richard
Charles R. Sonnier P. O. Drawer 700 Abbeville, LA 70511-0700 (337) 893-5973 COUNSEL FOR DEFENDANTS/APPELLEES: Game Management, Inc. Allianz Global Risks US Insurance Company Michael David Richard Industrial Helicopters, Inc. J. Oran Richard EZELL, Judge.
Melissa and Tommie Hebert appeal the trial court’s judgment allowing his
employer and its insurer an offset/credit for all the workers’ compensation benefits
paid to him. The Heberts also argue that the trial court erred in failing to award
them costs associated with their previous appeal to this court.
FACTS
As we noted in the two previous appeals of this case to this court, Tommie
Hebert was seriously injured when he fell to the ground from a helicopter owned
by his employer, Industrial Helicopters, Inc. Hebert v. Richard, 10-1417 (La.App.
3 Cir. 7/6/11), 72 So.3d 892; Hebert v. Richard, 15-8 (La.App. 3 Cir. 6/17/15), 166
So.3d 1265, writs denied, 15-1390, 15-1591 (La. 10/2/15), 178 So.3d 991. At the
time of the accident, Mr. Hebert was “employed by Industrial for nearly thirty
years, primarily as a commercial fuel truck driver.” Hebert, 166 So.3d at 1268.
Industrial was primarily in the business of aerial herbicide application. However,
it also supplied helicopters for fish and game surveys and captures. Id.
J. Oran Richard, the owner and president of Industrial, also owned Game
Management, Inc. Game Management “leased large tracts of land for hunting,
fishing, farming, and ranching in Louisiana and Texas . . . . [and] also performed
wildlife surveys in Mexico, during which it aerially tracked and captured deer.” Id.
at 1269. Mr. Hebert primarily drove a truck for Industrial but was asked by Mr.
Richard’s son, an employee of Industrial, to serve as a deer netter in Mexico the
weekend he fell from the helicopter.
This court held initially that Game Management was not a borrowed
employer, that Industrial was liable for workers’ compensation benefits, and that
Industrial was entitled to tort immunity if Mr. Hebert was in the course and scope of his employment. Hebert, 72 So.3d 892. The case was then remanded to the
trial court for a trial on the merits. A jury trial was held on May 27, 2014, in which
the jury found that Mr. Hebert was in the course and scope of his employment with
Industrial at the time of the accident. The jury awarded $1,500,000.00 in special
damages and $500,000.00 in general damages to Mr. Hebert. Mr. Hebert was
assigned 56% fault for the accident, and Industrial was assigned 44% percent of
the fault. Therefore, Industrial’s share of the total damages amounted to
$880,000.00.
In the appeal following the jury trial, this court found that statements made
by Industrial in multiple filings into the record and in its brief constituted a judicial
confession that Mr. Hebert was not in the course and scope of his employment with
Industrial at the time of the accident. Hebert, 166 So.3d 1265. We also affirmed
the jury’s award of $1,500,000.00 in special damages to the Heberts. This court
then remanded “the case to the trial court to determine whether either Industrial or
its insurer may be entitled to an offset for workers’ compensation benefits already
paid.” Id. at 1282.
On remand, the Heberts filed a motion to fix costs asking that all court costs
be assessed against the defendants. The issues of offset and costs were heard by
the trial court on November 9, 2015. The trial court determined that Industrial was
entitled to an offset in the amount of $503,839.49, representing the entire amount
of workers’ compensation benefits it paid to or on behalf of Mr. Hebert. Since Mr.
Hebert was found 56% at fault, the trial court determined that each party would
bear their own costs of litigation. The Heberts then filed the present appeal
challenging both rulings.
2 OFFSET
The Heberts claim that the trial court erred in allowing Industrial to claim an
entire offset/credit without consideration of the supreme court’s ruling in Gagnard
v. Baldrige, 612 So.2d 732 (La.1993). The supreme court held that an employer
who is assessed both workers’ compensation benefits and tort damages gets a
credit or offset for wages and medical expenses to the extent that disability benefits
and medical expenses have been paid. However, the amount of the credit should
not exceed the amount of wages and medical expenses owed or awarded under tort
liability. This is based on the “premise that Louisiana law does not allow for
double recovery of the same element of damages.” Albert v. Farm Bureau Ins. Co.,
05-2496, p. 4 (La. 10/17/06), 940 So.2d 620, 622.
In the present case, it has been determined that Mr. Hebert was not in the
course and scope of his employment, so Industrial is not responsible for workers’
compensation benefits. Industrial is only liable to Mr. Hebert for tort damages.
Therefore, Industrial is entitled to reimbursement of the workers’ compensation
benefits it paid to Mr. Hebert. Hebert v. Jeffrey, 95-1851 (La. 4/8/96), 671 So.2d
904. Industrial is only responsible to Mr. Hebert for the extent of its tort liability,
44%. By finding it liable for 44% of the total damages of $2,000,000.00, or
$880,000.00, the trial court correctly assessed Industrial for its share of the medical
expenses and lost wages that the jury found Mr. Hebert is entitled to. Therefore,
the trial court was correct in giving Industrial and its insurer a credit for the full
amount paid in indemnity benefits as it was not responsible for workers’
compensation benefits since Mr. Hebert was not in the course and scope of his
employment.
3 COURT COSTS
In their final assignment of error, the Heberts call attention to the fact that
this court did not assess court costs in its second appeal to this court. Hebert, 166
So.3d 1265. The trial court held that each party should be responsible for their
own costs since Mr. Hebert was found 56% at fault for the accident. Even though
the Heberts requested that the trial court assess costs of the second appeal to
Industrial and Allianz, the trial court failed to do so. The Heberts note that in the
second appeal this court reversed the previous trial court judgment, which was in
favor of the defendants and awarded damages to the Heberts.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 16-427
TOMMIE HEBERT, ET UX
VERSUS
J. ORAN RICHARD, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C2008-1200 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and Billy Howard Ezell, Judges.
AFFIRMED AS AMENDED. James Cleverly Klick Joseph E. (Jed) Cain Mikalia M. Kott Danielle T. Hufft Herman, Herman & Katz, L.L.C. 820 O’Keefe Avenue New Orleans, LA 70113 (504) 581-4892 COUNSEL FOR PLAINTIFFS/APPELLANTS: Tommie Hebert Melissa Anne Hebert
Joseph R. Joy, III Joseph Joy & Associates P. O. Box 4929 Lafayette, LA 70502 (337) 232-8123 COUNSEL FOR PLAINTIFFS/APPELLEES: Melissa Anne Hebert Tommie Hebert
Kenneth Hugh Laborde Brendan P. Doherty Gieger, Laborde & Laperouse 701 Poydras, Ste 4800 New Orleans, LA 70139-4800 (504) 561-0400 COUNSEL FOR DEFENDANTS/APPELLEES: J. Oran Richard Industrial Helicopters, Inc. Allianz Global Risks US Insurance Company Game Management, Inc. Michael David Richard
Charles R. Sonnier P. O. Drawer 700 Abbeville, LA 70511-0700 (337) 893-5973 COUNSEL FOR DEFENDANTS/APPELLEES: Game Management, Inc. Allianz Global Risks US Insurance Company Michael David Richard Industrial Helicopters, Inc. J. Oran Richard EZELL, Judge.
Melissa and Tommie Hebert appeal the trial court’s judgment allowing his
employer and its insurer an offset/credit for all the workers’ compensation benefits
paid to him. The Heberts also argue that the trial court erred in failing to award
them costs associated with their previous appeal to this court.
FACTS
As we noted in the two previous appeals of this case to this court, Tommie
Hebert was seriously injured when he fell to the ground from a helicopter owned
by his employer, Industrial Helicopters, Inc. Hebert v. Richard, 10-1417 (La.App.
3 Cir. 7/6/11), 72 So.3d 892; Hebert v. Richard, 15-8 (La.App. 3 Cir. 6/17/15), 166
So.3d 1265, writs denied, 15-1390, 15-1591 (La. 10/2/15), 178 So.3d 991. At the
time of the accident, Mr. Hebert was “employed by Industrial for nearly thirty
years, primarily as a commercial fuel truck driver.” Hebert, 166 So.3d at 1268.
Industrial was primarily in the business of aerial herbicide application. However,
it also supplied helicopters for fish and game surveys and captures. Id.
J. Oran Richard, the owner and president of Industrial, also owned Game
Management, Inc. Game Management “leased large tracts of land for hunting,
fishing, farming, and ranching in Louisiana and Texas . . . . [and] also performed
wildlife surveys in Mexico, during which it aerially tracked and captured deer.” Id.
at 1269. Mr. Hebert primarily drove a truck for Industrial but was asked by Mr.
Richard’s son, an employee of Industrial, to serve as a deer netter in Mexico the
weekend he fell from the helicopter.
This court held initially that Game Management was not a borrowed
employer, that Industrial was liable for workers’ compensation benefits, and that
Industrial was entitled to tort immunity if Mr. Hebert was in the course and scope of his employment. Hebert, 72 So.3d 892. The case was then remanded to the
trial court for a trial on the merits. A jury trial was held on May 27, 2014, in which
the jury found that Mr. Hebert was in the course and scope of his employment with
Industrial at the time of the accident. The jury awarded $1,500,000.00 in special
damages and $500,000.00 in general damages to Mr. Hebert. Mr. Hebert was
assigned 56% fault for the accident, and Industrial was assigned 44% percent of
the fault. Therefore, Industrial’s share of the total damages amounted to
$880,000.00.
In the appeal following the jury trial, this court found that statements made
by Industrial in multiple filings into the record and in its brief constituted a judicial
confession that Mr. Hebert was not in the course and scope of his employment with
Industrial at the time of the accident. Hebert, 166 So.3d 1265. We also affirmed
the jury’s award of $1,500,000.00 in special damages to the Heberts. This court
then remanded “the case to the trial court to determine whether either Industrial or
its insurer may be entitled to an offset for workers’ compensation benefits already
paid.” Id. at 1282.
On remand, the Heberts filed a motion to fix costs asking that all court costs
be assessed against the defendants. The issues of offset and costs were heard by
the trial court on November 9, 2015. The trial court determined that Industrial was
entitled to an offset in the amount of $503,839.49, representing the entire amount
of workers’ compensation benefits it paid to or on behalf of Mr. Hebert. Since Mr.
Hebert was found 56% at fault, the trial court determined that each party would
bear their own costs of litigation. The Heberts then filed the present appeal
challenging both rulings.
2 OFFSET
The Heberts claim that the trial court erred in allowing Industrial to claim an
entire offset/credit without consideration of the supreme court’s ruling in Gagnard
v. Baldrige, 612 So.2d 732 (La.1993). The supreme court held that an employer
who is assessed both workers’ compensation benefits and tort damages gets a
credit or offset for wages and medical expenses to the extent that disability benefits
and medical expenses have been paid. However, the amount of the credit should
not exceed the amount of wages and medical expenses owed or awarded under tort
liability. This is based on the “premise that Louisiana law does not allow for
double recovery of the same element of damages.” Albert v. Farm Bureau Ins. Co.,
05-2496, p. 4 (La. 10/17/06), 940 So.2d 620, 622.
In the present case, it has been determined that Mr. Hebert was not in the
course and scope of his employment, so Industrial is not responsible for workers’
compensation benefits. Industrial is only liable to Mr. Hebert for tort damages.
Therefore, Industrial is entitled to reimbursement of the workers’ compensation
benefits it paid to Mr. Hebert. Hebert v. Jeffrey, 95-1851 (La. 4/8/96), 671 So.2d
904. Industrial is only responsible to Mr. Hebert for the extent of its tort liability,
44%. By finding it liable for 44% of the total damages of $2,000,000.00, or
$880,000.00, the trial court correctly assessed Industrial for its share of the medical
expenses and lost wages that the jury found Mr. Hebert is entitled to. Therefore,
the trial court was correct in giving Industrial and its insurer a credit for the full
amount paid in indemnity benefits as it was not responsible for workers’
compensation benefits since Mr. Hebert was not in the course and scope of his
employment.
3 COURT COSTS
In their final assignment of error, the Heberts call attention to the fact that
this court did not assess court costs in its second appeal to this court. Hebert, 166
So.3d 1265. The trial court held that each party should be responsible for their
own costs since Mr. Hebert was found 56% at fault for the accident. Even though
the Heberts requested that the trial court assess costs of the second appeal to
Industrial and Allianz, the trial court failed to do so. The Heberts note that in the
second appeal this court reversed the previous trial court judgment, which was in
favor of the defendants and awarded damages to the Heberts. The Heberts ask this
court to tax the costs of the second appeal against Industrial and Allianz.
The trial court may assess costs as it considers equitable. La.Code Civ.P. art.
1920. A trial court has broad discretion in its assessment of costs which can only
be reversed on appeal by showing an abuse of discretion. Trahan v. Plessala, 14-
795 (La.App. 3 Cir. 2/5/15), 158 So.3d 209. Pursuant to La.Code Civ.P. art. 2164,
appellate courts are obliged to review this ruling and may tax costs of the lower or
appellate court as it considers equitable. Lege v. State Farm Mut. Auto. Ins. Co.,
386 So.2d 123 (La.App. 3 Cir.), writ denied, 392 So.2d 684 (La.1980).
Furthermore, when a prevailing party is assessed with costs of litigation, it is
generally due to the fact that the party in some way pointlessly incurred additional
costs or engaged in conduct which justified assessment of costs against it. Haas v.
Romero, 07-974 (La.App. 3 Cir. 2/20/08), 977 So.2d 196.
The Heberts were clearly successful in their second appeal to this court. On
remand, the Heberts requested that the trial court assess the costs of the second
appeal against the defendants when it made an assessment of court costs. As the
prevailing party in the second appeal, we find the trial court abused its discretion in
4 assessing these costs to the Heberts. We amend that portion of the trial court
judgment and render judgment assessing costs of the second appeal, Hebert, 166
So.3d 1265, against the defendants.
For the reasons expressed in this opinion, we amend the trial court judgment
to provide that the costs of the appeal in Hebert, 166 So.3d 1265, are assessed to
Industrial Helicopters, Inc. and its insurer, Allianz Global (US) Risk Insurance Co.
The decision of the trial court is otherwise affirmed. Costs of this appeal are
assessed 50% to the Heberts and 50% to the defendants.
AFFIRMED AS AMENDED.