Cahill v. Schultz
| Decision Date | 10 February 1988 |
| Docket Number | No. CA-8358,CA-8358 |
| Citation | 521 So.2d 442 |
| Parties | Kevin J. CAHILL v. Elizabeth SCHULTZ, Stolt-Nielsen, Inc., Hanover Insurance Company and State Farm Insurance Company. 521 So.2d 442 |
| Court | Court of Appeal of Louisiana — District of US |
John R. Wellman, Law Offices of John R. Wellman, New Orleans, for plaintiff-appellee.
Nahum Laventhal, Roger J. Larue, Jr., Metairie, for defendant-appellant.
Before SCHOTT, GARRISON and CIACCIO, JJ.
Kevin J. Cahill was injured on the job in August, 1982 and filed suit against his employer for worker's compensation benefits. After a trial Cahill obtained a judgment in October, 1983 against the employer for compensation and medical expenses. In January, 1985 Cahill filed suit against Elizabeth Schultz, and others for damages arising out of an automobile accident which occurred in January, 1984. Cahill's employer intervened in the tort suit in November, 1985 seeking to recover benefits paid to Cahill pursuant to the October, 1983 judgment. On March 23, 1987 the trial court dismissed the intervention on exceptions of no right or cause of action and intervenor has appealed from this judgment.
Intervenor's first specification of error is directed to the trial judge's consideration of various medical reports at the hearing on the exceptions. Intervenor's position is correct. The law is too well established to require citation that in consideration of an exception of no cause of action the court must confine itself to the four corners of the petition and documents attached thereto and made part thereof. Therefore, the trial judge clearly erred in considering the medical reports, and the judgment cannot be affirmed for the reasons he assigned. However, upon our review of the petition we are satisfied that the trial court reached the correct result.
Intervenor made the following allegations: Cahill filed a previous worker's compensation case claiming he was injured on the job in August, 1982; this case was tried in September, 1983 and Cahill obtained a judgment requiring intervenor to pay him compensation and medical benefits. The petition continues:
III.
At the time of the trial, Cahill alleged that he needed immediate surgery and for this reason the court rendered the judgment.
IV.
Upon information and belief, Cahill was involved in an accident several months later, out of which the captioned suit arises, which necessitated the need for his surgery and which has prolonged his disability.
V.
For these reasons, Metropolitan Erection Company, Inc. is entitled to intervene to seek recovery of any compensation and medical benefits, which it has paid, because of the intervening accident, which has prolonged the disability and exacerbated and aggravated the injuries sustained by the petitioner in his work related accident of August 1, 1982.
From these allegations we know that intervenor is paying compensation benefits pursuant to a final judgment based on the evidence produced in that case and the judgment included expenses of a surgical procedure to be performed in the future. But such a judgment seems to be erroneous because there is no liability for medical expenses until they are incurred. Deshotels v. Fidelity and Cas. Co. of New York, 324 So.2d 895 (La.App.Cir.1975), writ denied 328 So.2d 376 (La.1976). On the other hand, since intervenor acquiesced in the judgment it has no legal right to be reimbursed by the worker now that the judgment has become final.
As far as intervenor's claim for recovery of benefits "which it has paid, because of the intervening accident, which has prolonged the disability and exacerbated and aggravated the injuries", intervenor has no legal basis for such recovery. Whatever benefits intervenor has paid were based on Cahill's condition in September, 1983. Aggravation of that condition caused by the subsequent accident provided Cahill with a claim against the tort feasor independent of intervenor's liability. Cahill is not entitled to recover from the tort feasor damages for his pre-auto-accident condition; if he obtains a judgment for something other than aggravation, it is the tort feasor who has a basis to complain, not intervenor. In fact, the tort feasor settled the case with Cahill a short time after the intervention was filed. If the tort feasor decided to give Cahill more than he was entitled to in the form, for example, of damages for which Cahill was already being compensated by intervenor, this provides no legal basis to intervenor to recover some of that money, because this was a voluntary payment by the tort feasor to Cahill, a matter in which intervenor has no interest.
This position is consistent with Emp. Mut. Lib. Ins. Co. of Wis. v. Dixon, 425 So.2d 885 (La.App. 4th Cir.1983). There a worker's compensation insurer sought reimbursement for past and future monies it was required to pay against a tort feasor against whom plaintiff claimed damages for aggravation of his compensation-related injuries in a second accident. This court affirmed the trial court's dismissal of the insurer's claim on a summary judgment. The cases are indistinguishable except for their procedural posture in the trial court. The case stands squarely for the proposition that intervenor has no legal right to the proceeds of the settlement between Cahill and the tort feasor.
Intervenor's reliance on R.S. 23:1101(B) is misplaced. This section of the compensation act provides the employer with the right to recover against a third party tort feasor where the injury resulting from a single accident was compensable because it occurred in the course of employment but it was caused by a third party tortfeasor, as in the case of a truck driver who is hurt in an accident. This section does not authorize an intervention by an employer paying compensation pursuant to a final judgment to claim proceeds due to the employee by a tort feasor who caused aggravation of the worker's injuries.
Accordingly, the judgment appealed from is affirmed.
AFFIRMED.
I find that the petition of intervention states a cause of action and that intervenors have a right of action. I would, therefore, reverse the district court judgment, overrule the exceptions, and remand the matter for consideration of the merits of intervenor's petition.
First I note, as has been stated numerous times before, there is no exception of "no right or cause of action." Although the objections of "no cause of action" and "no right of action" are both raised by peremptory exception, La.C.C.P. Art. 927, they are distinct. They require different modes of consideration and separate analysis.
Treating the "exception" before the court as separately raising both objections, I agree with the majority holding that the trial judge erred in considering the medical reports. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La.C.C.P. Art. 931. And although evidence is admissible in connection with an objection of no right of action, in this case I find the medical reports irrelevant to consideration of intervenor's right of action.
The statutory basis of the intervention is La.R.S. 23:1101, which provides,
Sec. 1101. Employee and employer suits against third persons; effect on right to compensation
A. When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as "third person") other than those persons against whom the said employee's rights and remedies are limited in R.S. 23:1032, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under...
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