Fontenot v. Hanover Ins. Co.
| Decision Date | 23 June 1980 |
| Docket Number | No. 66425,66425 |
| Citation | 385 So.2d 238 |
| Parties | Marjorie FONTENOT v. HANOVER INSURANCE COMPANY. |
| Court | Louisiana Supreme Court |
Christopher B. Fruge, Fruge & Vidrine, Ville Platte, for plaintiff-applicant.
Keith M. Borne, Allen, Gooch & Bourgeois, Lafayette, for defendant-respondent.
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The issue presented by this case is whether an employer or his insurer is entitled to reimbursement for medical expenses paid under the workers' compensation statute out of his employee's judgment against a third party tortfeasor for damages for her pain and suffering. We conclude that the court of appeal erred in requiring such a reimbursement and reverse its judgment. The underlying policy of the workers' compensation statute provisions for apportionment of damages between employer and employee in suits against third persons merely prevents an employee's double recovery for his injuries; it does not require an employee to reimburse out of his award for pain and suffering medical expenses which he failed to recover from a third party tortfeasor.
Plaintiff, Marjorie Fontenot, received an injury to her right hand during her employment when she tripped on an elevated portion of a sidewalk maintained by the Evangeline Parish Police Jury. She sued the jury's liability insurer, Hanover Insurance Company, in tort. Fireman's Fund Insurance Company, workers' compensation insurer for Mrs. Fontenot's employer, intervened seeking reimbursement of compensation and medical expenses paid as a result of the accident.
The trial court awarded Mrs. Fontenot judgment against Hanover, the police jury's insurer, as follows: $30,000.00 for pain and suffering, $4,000.00 for loss of future earnings, and $5,638.17 for loss of wages. The intervenor-workers' compensation insurer was awarded judgment against Hanover of $6,733.18 as reimbursement for payment of Mrs. Fontenot's compensation benefits and medical expenses. All parties appealed. The court of appeal refused to alter the judgment awarded Mrs. Fontenot against Hanover, but it amended the trial court judgment to provide that the intervenor-compensation insurer shall be reimbursed in preference and priority from the judgment for all benefits and medical expenses paid to Mrs. Fontenot or in her behalf prior to the time the judgment is actually satisfied. 378 So.2d 461 (La.App. 3d Cir. 1979).
We granted Mrs. Fontenot's application for writs to determine whether the court of appeal correctly required reimbursement of the compensation insurer for medical expenses from plaintiff's award, which did not include recovery for that item. We also granted the writ to review the adequacy of the trial court award for loss of future earnings which was affirmed by the appeals court. After examining the record and hearing the arguments, we have decided that the court of appeal correctly disposed of the latter issue for the reasons assigned in its opinion. 1
The workers' compensation statute seeks to facilitate employee and employer suits against third persons by providing essentially: (1) the payment of compensation does not affect an employee's claim against a third person, La.R.S. 23:1101; (2) an employer may sue third persons to recover amounts paid as compensation, id.; (3) the employer or employee is obliged to give notice to the other of filing of such a suit, La.R.S. 23:1102; (4) in such a suit the claim of the employer for compensation actually paid shall be preferred. La.R.S. 23:1103.
The underlying policy of the apportionment scheme in providing that an employer's claim for reimbursement of compensation actually paid shall take precedence is merely that the employee should not be compensated doubly for the same element of his damages. Roberson v. Fontenot Petroleum Co., Inc., 322 So.2d 287 (La.App. 1st Cir. 1975) writ refused 325 So.2d 277 (La.1976). It does not appear that the legislature intended for the employer to be reimbursed from the employee's award for items which the employee has not recovered from the third person. See, e. g., Simmons v. Travelers Ins. Co., 295 So.2d 550 (La.App. 3d Cir. 1974) writ denied 299 So.2d 795, 796 (La.1974); Carlisle v. Employer's Mutual of Wausau, 220 So.2d 152 (La.App. 4th Cir. 1969); Collins v. Toye Bros. Yellow Cab Co., 183 So.2d 396 (La.App. 4th Cir. 1966); Malone & Johnson, Louisiana Civil Law Treatise, Workers' Compensation, §§ 369, 183 (1980).
Applying this statutory construction in the present case, we conclude that the court of appeal erroneously awarded reimbursement to the employer's compensation insurer for medical expenses to be paid out of Mrs. Fontenot's damage award for pain and suffering. Since Mrs. Fontenot was not awarded any amount for medical expenses, the compensation insurer was not entitled to enforce his right to preferential payment of this particular claim by deducting it from her recovery. Instead, the compensation insurer was entitled to judgment directly against the third person for any medical expenses not included in the award to plaintiff-employee.
Fireman's Fund is due to be paid in preference for weekly compensation benefits already paid from the award of damages made to Mrs. Fontenot. Under La. 23:1103 the excess in damages awarded over the amount paid to Fireman's Fund in preference is awarded to the plaintiff. When that amount is paid to her, the liability of Fireman's Fund for compensation ceases for an equal portion of compensation...
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