City of DeQuincy v. Henry

• Decision Date: 09 December 2009
• Docket Number: No. 09-636.,09-636.
• Citation: 25 So.3d 237
• Parties: CITY of DeQUINCY v. Randy James HENRY.
• Court: Court of Appeal of Louisiana — District of US

25 So.3d 237

CITY of DeQUINCY v. Randy James HENRY.

No. 09-636.

Court of Appeal of Louisiana, Third Circuit.

December 9, 2009.

Steven Broussard, Broussard & Hart, LLC, Lake Charles, LA, for Defendant/Appellee, Randy James Henry.

Christopher R. Philipp, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, City of DeQuincy.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR and BILLY HOWARD EZELL, Judges.

DECUIR, Judge.

This workers' compensation appeal was brought by an employer, the City of DeQuincy, after its injured employee, Randy James Henry, successfully mediated a resolution of his third-party tort suit against CLECO Utility Group, Inc. The City sought to terminate all workers' compensation benefits, including future medical expenses, based on the allegation that Henry failed to obtain written approval of the settlement, thereby invoking the forfeiture provision of the workers' compensation statute. The trial court denied the City's motion to terminate benefits, found the City approved the settlement between Henry and CLECO, and denied the City's request for a credit against future medical expenses. For the following reasons, we affirm.

On November 26, 2000, while investigating the scene of an automobile accident, Henry, a patrolman with the City of DeQuincy, came into contact with a live electrical transmission wire belonging to CLECO. As a result, Henry suffered severe, totally disabling injuries. The City, through the Louisiana Municipal Risk Management Agency (RMI), initiated workers' compensation benefits. Henry filed a tort suit against CLECO, and the City intervened to recover the benefits paid to and on behalf of Henry. By the time of the mediated settlement at issue before us, the amount of indemnity and medical benefits paid totaled $481,567.47. Information in the sparse record before us indicates that future medical expenses will be substantial for this forty-nine-year-old former police officer who will apparently never work again.

After nine years of litigation, two prior visits to this court (see Henry v. Barlow, 04-1657 (La.App. 3 Cir. 5/4/05), 901 So.2d 1207, and Henry v. Barlow and CLECO, 06-283 (La.App. 3 Cir. 8/9/06), 937 So.2d 895, writ denied, 06-2592 (La.1/12/07), 948 So.2d 153), and several writs to the supreme court, the parties finally agreed to settle their differences with the help of a mediator. A date and time were scheduled and the mediator was selected. The City and its attorney, as well as RMI, were made aware of the upcoming mediation but specifically declined to attend. By email, however, the City agreed to waive one-third of its lien for attorney fees "to make the case settle," and forwarded to the mediator a document showing the exact amount of its lien as of the morning of the mediation. The City asked for no other concessions. During the course of the mediation, Henry and CLECO agreed to a full satisfaction of the City's lien, minus one-third for attorney fees, exactly what the City requested. The parties also agreed that Henry would have the right to allocate the settlement funds as he saw fit; consequently, no portion of the settlement funds were allocated for future medical expenses and $235,500.00 were allocated to Henry's wife and children as loss of consortium damages. In the days following the successful mediation, the City's attorney congratulated CLECO's attorney on the settlement.

The City then asserted a claim for a credit against Henry's net proceeds in the settlement for all future disability and medical payments. When Henry disagreed with the City's claim for a credit for future medical expenses, the City made the assertion that no written approval of the settlement had been given, and if Henry proceeded without that approval, he would forfeit all future compensation benefits. Henry did not dispute the City's right to a credit for future indemnity benefits. Henry then petitioned the court to declare the settlement approved; in response, the City sought judicial approval to terminate benefits. Once this litigation was initiated, the City released CLECO from all claims in exchange for a payment of $321,045.25, the full amount of its workers' compensation lien less one-third for attorney fees.

In cases involving settlement with a third party tortfeasor, the rights of an employer and workers' compensation insurer are governed by La. R.S. 23:1102, which provides in pertinent part:

B. If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar...