Miller v. Continental Cas. Co.

• Decision Date: 05 November 1962
• Docket Number: No. 655,655
• Citation: 146 So.2d 842
• Parties: Silva L. MILLER, Plaintiff and Appellant, v. CONTINENTAL CASUALTY COMPANY et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 842

146 So.2d 842

Silva L. MILLER, Plaintiff and Appellant, v. CONTINENTAL CASUALTY COMPANY et al., Defendants and Appellees.

No. 655.

Court of Appeal of Louisiana, Third Circuit.

Nov. 5, 1962.

Rehearing Denied Dec. 10, 1962.

Gravel, Sheffield & Fuhrer, by Leonard Fuhrer, Alexandria, for plaintiff-appellant.

Lunn, Irion, Switzer, Trichel & Johnson, by Val Irion, Shreveport, Gold, Hall & Skye, by George B. Hall, Alexandria, for defendants-appellees.

Before TATE, SAVOY and HOOD, Judges.

HOOD, Judge.

This is a suit for a declaratory judgment instituted by Silva L. Miller against Trunkline Gas Company (Trunkline) and its workmen's compensation insurer, Indemnity Insurance Company of North America (Indemnity). As originally instituted the plaintiff also named Panama, Inc., and its insurer, Continental Casualty Company, as part defendants, but the suit has been dismissed as to these two last named defendants. Plaintiff seeks a judgment decreeing that he is entitled to be paid 'additional medical benefits' by Trunkline and Indemnity, in accordance with the terms of a workmen's compensation insurance policy which had been issued by Indemnity to Trunkline and which was in effect on January 25, 1961, when plaintiff sustained injuries as the result of a work connected accident.

Both of the defendants filed exceptions of no right and no cause of action, and defendant Indemnity also filed an answer and a motion for a summary judgment demanding that the suit be dismissed as to it. The exceptions and the motion for a summary judgent were referred to the merits, and in due course the case was tried. Judgment was then rendered by the trial court in favor of defendants, sustaining the exceptions of no cause of action filed by both of said defendants, and dismissing the suit. Plaintiff has appealed from that judgment.

There is no dispute as to the facts. On and prior to January 25, 1961, Trunkline was engaged in the business of transporting gas by pipeline and of constructing and maintaining pipelines. It had entered into a contract with Panama, Inc., to construct some additional pipelines for it in this state, and Panama, in turn, engaged Dunn Brothers, Inc., to haul, unload, and string the pipe used in this project. Panama, therefore was the general contractor and Dunn was a sub-contractor. Plaintiff was employed by Dunn. On January 25, 1961, plaintiff sustained very serious injuries in an accident which occurred during the course and scope of his employment, and as a result of those injuries there is no question but that he is totally and permanently disabled.

Dunn (or its insurer), immediately after the accident and without demand, began paying plaintiff compensation benefits at the maximum rate of $35.00 per seek, and it has continued to make those payments regularly up to the present time. Dunn also paid the medical expenses incurred by plaintiff as they became due, until it had paid the total sum of $2,500.00, which is all that it was required to pay under the provisions of the workmen's compensation law. The maximum amount due by Dunn, or its insurer, as medical benefits had been paid by October, 1961, and no further medical expenses have been paid by Dunn since that time, although plaintiff after that date has incurred additional madical expenses in connection with the treatment of his injuries. Dunn, plaintiff's immediate employer, therefore, has not defaulted in any of its obligations to plaintiff, and it has paid the maximum amount due by it under the provisions of the workmen's compensation law as medical benefits.

Sometime prior to the date of this accident, Trunkline entered into an insurance contract with Indemnity, under the terms of which the latter agreed to insure Trunkline against liability under the Louisiana Workmen's Compensation Law. That insurance policy was in effect at the time the above mentioned accident occurred. That policy, however, contains a rider, endorsement or provision, commonly known as an 'Additional Medical Coverage Endorsement,' the pertinent portions of which read as follows:

'1. In addition to any medical benefits provided in the applicable workmen's compensation law, the company will also pay the reasonable cost of any additional medical, surgical, nursing or hospital services, medical or surgical apparatus or appliances, including prosthetic devices, and medicines which in the opinion of the company are reasonably necessary for the treatment of bodily injury sustained by any person who is Entitled, on account of such injury, to the compensation and other benefits Required of the insured under such law and afforded by the policy under Coverage A, or who in entitled to such benefits under other terms of the policy.

'2. The company's liability under this endorsement shall be limited to $100,000.00 on account of each person for whom benefits are payable under Paragraph 1 above. * * *' (Emphasis added).

Plaintiff contends that although he has already received from his immediate employer, or its insurer, the maximum medical benefits allowed in the workmen's compensation law, nevertheless, under the above quoted provision of the policy, he is entitled to recover from defendants in this suit the reasonable cost of all additional medical expenses which he has incurred or will incur for the treatment of his injuries, up to the limits set out in that endorsement. In this proceeding, of course, plaintiff is not demanding a money judgment, but he does seek a decree declaring, in effect, that the defendants here are obligated under the contract of insurance entered into between themselves to pay him these additional medical benefits. Defendants resist plaintiff's demand on the ground that under the circumstances presented here he was not included as an insured under the above quoted endorsement, and accordingly that plaintiff is not entitled to the relief which he seeks.

The principal issue presented here, therefore, is whether under these circumstances plaintiff is an insured under the 'Additional Medical Coverage Endorsement' of the policy issued by Indemnity. If he is, then he is entitled to the relief which he seeks from the insurer. The resolution of that question involves an interpretation of the provisions of that endorsement, and counsel agree that this question is Res nova in the state.

It is well settled, and defendants concede, that the principal contractor and the sub-contractor are Liable, in solido, to an injured employee of the latter for all of the compensation benefits which may become due such employee under the provisions of the Louisiana Workmen's Compensation Act, and that the solidary nature of this liability need not be established in a lawsuit before it attaches, regardless of the rights of the parties liable Inter se, and regardless of whether liability under the compensation law has been established judicially. Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895; Casualty Reciprocal Exch. v. Richey Drill. & W. Serv., La.App. 3 Cir., 137 So.2d 127.

The parties also agree that additional medical coverage endorsements, such as the one with which we are...