95-1638 La.App. 4 Cir. 9/18/96, Rapp v. City of New Orleans

• Decision Date: 18 September 1996
• Citation: 681 So.2d 433
• Parties: 95-1638 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 433

681 So.2d 433

95-1638 La.App. 4 Cir. 9/18/96

Frederick RAPP, et al, v. CITY OF NEW ORLEANS.

No. 95-CA-1638.

Court of Appeal of Louisiana Fourth Circuit.

Sept. 18, 1996.

Rehearing Denied Nov. 6, 1996.

Order Clarifying Decision on Denial of Rehearing Nov. 12, 1996.

Writ Denied Jan. 24, 1997.

Neil J. Kohlman, Assistant City Attorney, Milton Osborne, Jr., Deputy City Attorney, Avis Marie Russell, City Attorney, New Orleans, and Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., James A. Babst, Dona J. Dew, Scott C. Barney, New Orleans, for Defendant-Appellant.

Robein, Urann & Lurye, Magdalen Blessey Bickford, Louis L. Robein, Jr., Metairie, for Plaintiffs-Appellees.

Before BYRNES, ARMSTRONG and WALTZER, JJ.

[95-1638 La.App. 4 Cir. 1] BYRNES, Judge.

The City of New Orleans appeals an adverse ruling on motion for summary judgment involving twenty separate worker's compensation claims asserted against it by twenty retired employees of the New Orleans Fire Department. The plaintiffs answered the appeal asking for an increase in attorney's fees and penalties awarded by the hearing officer as compensation for the extra burden placed on the plaintiffs by virtue of defending this appeal, which plaintiffs contend is without merit. ¹

I. STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180; Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). A summary judgment shall be granted if the pleadings, depositions, [95-1638 La.App. 4 Cir. 2] answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion. Carr v. City of New Orleans, 622 So.2d 819, 822 (La.App. 4 Cir.), writ denied, 629 So.2d 404 (La.1993) and Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 680 (La.App. 4 Cir.1993). To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that it excludes any real doubt as to the existence of material fact. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). The papers supporting the position for the party moving for the summary judgment are to be closely scrutinized while the opposing papers are to be indulgently treated, in determining whether mover has satisfied his burden. Vermilion, supra.

Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits, exhibits, and depositions, reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc. 396 So.2d 1268 (La.1981). No summary judgment will be granted even if the trial court has grave doubts regarding a party's ability to establish disputed facts. Aydell v. Charles Carter & Co., Inc., 388 So.2d 404 (La.App. 1 Cir.), writ denied 391 So.2d 460 (La.1980). The fact that a party is unlikely to prevail at a trial on the merits is an insufficient basis for rendering a summary judgment against that party. Chapeuis v. Cassimano, 568 So.2d 606 (La.App. 4 Cir.), writ denied 571 So.2d [95-1638 La.App. 4 Cir. 3] 629 (La.1990). This is true no matter how small the chances of the party opposing the motion to ultimately prevail appear to be. Dearie v. Ford Motor Co., 583 So.2d 28 (La.App. 5 Cir.), writ denied 588 So.2d 1117 (La.1991). It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Morris v. Louisiana Coca-Cola Bottling Co., Ltd., 354 So.2d 659 (La.App. 1 Cir.1977). The weighing of conflicting evidence on a material fact has no place in summary judgment procedure. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3 Cir.), writ denied 302 So.2d 308 (La.1974). Testimony should neither be received nor considered, even with the consent of counsel, to decide a motion for summary judgment. Urban Management Corp. v. Burns, 427 So.2d 1310 (La.App. 2 Cir.1983); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1 Cir.1976), writ denied 343 So.2d 1072 (La.1977). Making evaluations of credibility has no place in determining a summary judgment. Dixie Buick, Inc. v. Lockett, 263 So.2d 56 (La.App. 4th Cir.1972). A motion for a summary judgment is not to be used as a substitute for trial on the merits. Oller v. Sharp Elec., Inc., 451 So.2d 1235, 1237 (La.App. 4th Cir.), writ denied 457 So.2d 1194, appeal after remand 514 So.2d 176, writ denied 519 So.2d 117.

Of especial significance to reviewing the summary judgment in this case is the following principal enunciated in Dearie v. Ford Motor Co., supra, 583 So.2d at 30:

The mere fact that a party has filed a motion for summary judgment along with an affidavit does not compel judgment in favor of the mover and the record as a whole must evidence that all critical elements of the opposing party's case has been set to rest, no matter how small the opposing party's chances to ultimately prevail [95-1638 La.App. 4 Cir. 4] may appear, notwithstanding that the opposing party failed to file a counteraffidavit. [Emphasis added.]

The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case showing that there are no genuine issues of material fact. Manders v. Singleton, 558 So.2d 772, 775 (La.App. 5 Cir.1990). Where the moving party fails to show that there are no genuine issues of material fact, the adverse party may rest on mere allegations or denials contained in his pleadings. Downtown Parking Service, Inc. v. Hyman, 93-1803, (La.App. 4 Cir. 3/15/94); 635 So.2d 282, 284, writ denied 94-1519 (La.9/23/94), 642 So.2d 1298.

Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact. Despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested facts present no legal issues. Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.App. 4 Cir.), writ denied 572 So.2d 68 (La.1991).

BURDEN OF PROOF

The major issue of this appeal is the award by the trial court of Supplemental Earnings Benefits based on findings that plaintiffs were disabled as a result of work related accidents, and unable to earn 90% of their pre-injury wages for that period. If the City bore the burden of rebutting the plaintiffs' claims that they were disabled from obtaining work at 90% or more of their pre-injury compensation, the City must lose because it failed to introduce any countervailing affidavits, depositions, etc. The City may only prevail if that burden was on the plaintiffs and they fail to carry it, even in the absence of a contrary showing by the City.

[95-1638 La.App. 4 Cir. 5] Our reading of the reasons for judgment of the hearing officer is that he found that once the plaintiffs established that they could not return to their firefighting jobs because of job related injuries, the burden then shifted to the City to prove that they were unable to earn 90% of their pre-injury wages for that period. In his additional reasons for judgment the hearing officer reasoned that:

In Bridges, the Fourth Circuit upheld the lower court's granting of a summary judgment dismissing the employee's case on the basis of uncontradicted doctor reports which stated that the employee has no work-related disability. Likewise, it seems reasonable that if an employee presents uncontradicted doctor reports stating that he has a work-related disability, he can also be entitled to summary judgment in his favor.

This is an oversimplification. While a showing that there is no work related disability is enough to deny benefits, the converse is not true. An uncontradicted showing by a worker that he is prevented by a work-related disability from performing his previous employment without more does nothing in and of itself to prove that the worker is unable to perform other work for which his compensation could be 90% or more of what he previously earned. It is not enough just to prove the inability to continue in the pre-injury job.

The hearing officer relied on Hebert v. Grey Wolf Drilling Co., Inc., 611 So.2d 674, 677 (La.App. 3 Cir.1992). But even Hebert does not say that it is sufficient to show merely that one can no longer perform one's pre-injury employment. Hebert held that the burden shifts to the employer on a mere showing by the employee that he is not working or is earning less than he was able to earn prior to the job related injury. This, too, is insufficient to shift the burden to the employer. To the extent that Hebert and other cases like it conflict with the law of this circuit as expressed in Herty v. City of New Orleans, 94-1960, p. 5 [95-1638 La.App. 4 Cir. 6] La.App. 4 Cir. 4/13/95); 654 So.2d 785, 788 and Smith v. Hamp Enterprises, Inc., 95-2343, p. 4 (La.App. 4 Cir. 4/17/96); 673 So.2d 267; \and as expressed by the Louisiana Supreme Court in Smith v. Louisiana Dept. of Corrections, 93-1305, (La.2/28/94); 633 So.2d 129, 132, we shall not follow them. To do otherwise would provide a claimant with a strong incentive to remain unnecessarily unemployed. Id.

The burden of proof in such situations was described by this Court in Herty, 654 So.2d at 788:

Keeping in mind that the worker's compensation law is to be liberally construed in favor of coverage, claimant has the initial burden of showing that the work-related accident results in an inability to earn at least 90 percent of his former wages. [Emphasis added.] Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94),...