Advantage Personnel & La. Safety Ass'n of Timbermen v. Van Cleave
| Decision Date | 02 May 2014 |
| Docket Number | No. 2013 CA 1618.,2013 CA 1618. |
| Citation | 146 So.3d 221 |
| Parties | ADVANTAGE PERSONNEL AND LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN v. Aaron L. VAN CLEAVE. |
| Court | Court of Appeal of Louisiana — District of US |
John A. Keller, Madisonville, Louisiana, for Plaintiffs/Appellants, Advantage Personnel and Louisiana Safety Association of Timbermen.
Elliott J. Redmond, Gonzales, Louisiana, for Defendant/Appellee, Aaron L. Van Cleave.
Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
In this workers' compensation proceeding, an employer and its compensation insurer sought a judgment releasing them from future liability for benefits or, in the alternative, granting them a credit against future benefits because the injured employee allegedly settled a claim against a third person without the written approval of the employer or the insurer. The workers' compensation judge (WCJ) denied the request. We affirm.
Aaron L. Van Cleave sustained severe injuries in a head-on collision that occurred when an oncoming motorist crossed the centerline of a roadway and impacted a truck occupied by Van Cleave as a guest passenger. Van Cleave's host driver, Allen Marchand, was killed in the accident. The adverse driver, Arthur Temple, was issued multiple citations, including operating a vehicle while intoxicated, and the investigating officer concluded that Temple's actions were the cause of the accident.
The truck occupied by Van Cleave was insured by General Insurance Company of America pursuant to a policy of commercial automobile liability insurance. Van Cleave and Marchand's family agreed to equally split the General Insurance policy limits of $1,000,000.00, and General Insurance issued Van Cleave a check in the amount of $500,000.00. Van Cleave and his wife later executed a settlement agreement that included a release of General Insurance and a release of the estate of Marchand, and his company, Marchand Machinery, although the Van Cleaves reserved their rights against those two parties to the extent they were insured by a non-settling insurer.
At the time of the accident, Van Cleave was in the course and scope of his employment with Advantage Personnel, who, through its workers' compensation carrier, Louisiana Safety Association of Timbermen, began paying workers' compensation benefits to and on behalf of Van Cleave. After Van Cleave received the $500,000.00 payment from General Insurance and executed the settlement agreement, Advantage Personnel and Timbermen filed a “Disputed Claim for Compensation” (Form 1008 Claim) asserting that under Louisiana Revised Statute 23:1102 they were entitled to a credit against future benefits as a result of Van Cleave's settlement. They subsequently asserted that under Section 23:1102B, the settlement resulted in a complete forfeiture of future benefits because Van Cleave did not obtain written approval from Advantage Personnel or Timbermen before entering the settlement.
Advantage Personnel and Timbermen filed a motion for summary judgment seeking a judgment as a matter of law on the issues raised in their Form 1008 Claim. In support of the motion, they relied on a copy of the settlement agreement, a certified copy of the General Insurance automobile policy, and a copy of a petition on behalf of Van Cleave and his wife against numerous defendants in state district court (“tort suit petition”), filed after execution of the settlement agreement. The tort suit petition included Marchand Machinery as a defendant based upon allegations that an employee had disengaged the passenger-side air bag and that Marchand failed to re-engage the air bag prior to the collision.1
In opposition to the motion, the Van Cleaves argued that the payment from General Insurance consisted entirely of underinsured motorist benefits (“UM”) and did not trigger the forfeiture or credit provisions of Section 23:1102B because the policy excluded any UM coverage for the benefit of a workers' compensation insurer. They further argued that Marchand and Marchand Machinery were not “third person[s]” as that phrase is used in Section 23:1102 because the movers had not proved that Marchand or Marchand Machinery were at fault or otherwise liable for the accident and injuries sustained by Van Cleave.
The Van Cleaves offered numerous exhibits, including a certified copy of the General Insurance policy that included a coverage section for “LOUISIANA UNINSURED MOTORIST COVERAGE—BODILY INJURY.” That section contains an exclusion providing that the insurance does not apply to the “direct or indirect benefit of any insurer or self-insurer under any workers' compensation, disability benefits or similar law.” The Van Cleaves also offered a copy of the $500,000.00 check from General Insurance that has a notation of “UIM BI” under a caption of “COVERAGE,” and an affidavit from Van Cleave wherein he attested that the settlement with General Insurance was under the UM coverage of the insurance policy. As to any potential liability of Marchand and Marchand Machinery, Van Cleave further swore that he had “no knowledge as to who or when and even if the passenger side air bag in the Marchand pick up [truck] was turned off prior to the collision.”
The WCJ denied the motion for summary judgment. Thereafter, the request for a forfeiture or credit proceeded to a trial. By consent of the parties and order of the court, the matter was tried based upon the exhibits submitted by the parties. In addition to the exhibits previously filed in connection with the motion for summary judgment, the parties filed a copy of the uniform motor vehicle accident report generated by the Louisiana State Police and affidavits of representatives of Advantage Personnel and Timbermen who confirmed that worker's compensation benefits were paid to Van Cleave and that neither the employer nor the workers' compensation insurer approved or had been notified of the settlement prior to its execution.
Pursuant to written reasons for judgment, the WCJ found that Advantage Personnel and Timbermen had not met their burden of proving that Van Cleave forfeited his right to future workers' compensation benefits or that the plaintiffs were entitled to a credit for the settlement, which the WCJ referred to as “the uninsured motorist settlement.” The court further found that the General Insurance policy clearly and unambiguously excluded Timbermen from receiving any type of direct or indirect benefit as a result of the UM settlement, and that the exclusion was not against public policy. The court relied upon Travelers Insurance Company v. Joseph, 95–0200 (La.6/30/95), 656 So.2d 1000, wherein the supreme court held that a UM carrier can validly exclude coverage for the benefit of a workers' compensation insurer, and found that Travelers Insurance Company had not been overruled by more recent supreme court decisions addressing the reduction in liability of a UM insurer resulting from payments to the insured by a workers' compensation insurer.2 The WCJ adopted as further reasons for judgment the arguments set forth in the pre-trial brief filed on behalf of Van Cleave. A judgment was signed in favor of Van Cleave and against Advantage Personnel and Timbermen, denying any and all requested relief on all issues and dismissing the proceeding with prejudice.
Advantage Personnel and Timbermen now appeal the judgment and assert that the WCJ erred (1) in denying the motion for summary judgment, (2) in concluding that the settlement agreement was a settlement of UM claims only, (3) in finding that Van Cleave did not forfeit his right to future benefits by entering into a settlement with a third party without the written approval of the employer and/or insurer, (4) in concluding that Travelers Insurance Company and the UM exclusionary provision in the General Insurance policy was controlling rather than Louisiana's laws on solidary obligors, and (5) in concluding that Van Cleave's receipt of $500,000.00 from General Insurance did not entitle the appellants to a credit against their obligation to pay future workers' compensation benefits to Van Cleave.
Advantage Personnel and Timbermen first contend that the WCJ erred in denying their motion for summary judgment.3
A motion for summary judgment may be granted only if “the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Pro. art. 966B(2) (). The party seeking summary judgment has the burden of proving an absence of a genuine issue of material fact. La.Code Civ. Pro. art. 966C. If the movant satisfies the initial burden, the burden shifts to the party opposing summary judgment to present factual support sufficient to show he will be able to satisfy the evidentiary burden at trial. La.Code Civ. Pro. art. 966C(2); Suire v. Lafayette City–Parish Consolidated Government, 04–1459 (La.4/12/05), 907 So.2d 37, 56.
In the motion for summary judgment, Advantage Personnel and Timbermen alternatively claim that (1) Van Cleave forfeited his right to future benefits by failing to get written approval of the settlement, or (2) movers are entitled to a credit against future benefits in the amount of $500,000.00, the full amount paid to the Van Cleaves in the settlement. Since Advantage Personnel and Timbermen bear the burden of proving their right to a credit or a forfeiture of future benefits, they were obligated to prove that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law on one of these alternative claims. See High School Athletics Association, Inc. v. State, 12–1471 (La.1/29/13), 107 So.3d 583, 599.
Advantage Personnel and Timbermen rely upon Section 23:1102B, which provides as follows:
If a compromise...
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