Roberson v. Fontenot Petroleum Co., Inc.

• Decision Date: 02 September 1975
• Docket Number: No. 10411,10411
• Citation: 322 So.2d 287
• Parties: William C. ROBERSON v. FONTENOT PETROLEUM CO., INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 287

322 So.2d 287

William C. ROBERSON v. FONTENOT PETROLEUM CO., INC., et al.

No. 10411.

Court of Appeal of Louisiana, First Circuit.

Sept. 2, 1975.

Rehearing Denied Nov. 24, 1975.

Writ Refused Jan. 14, 1976.

Arthur Howell Andrews and Charles W. Franklin, Baton Rouge, for appellant.

John H. Brooks, New Orleans, for appellee.

Before SARTAIN, COVINGTON and BARNETTE, JJ.

COVINGTON, Judge:

The facts of record disclose that the plaintiff, William C. Roberson, a former employee of Fontenot Petroleum Company, Inc., sustained total and permanent injury to his back during the course and scope of his employment on September 3, 1969. The employee, a service station attendant, fell across a steel grating and injured his back while attempting to wash down an accumulation of gasoline which had allegedly been spilled due to the negligence of an employee of Earl Gibbon Transport, Inc., while that employee was trying to fill underground storage tanks at Fontenot's Service Station.

Bituminous Casualty Corporation, the workmen's compensation insurer for Fontenot, began paying compensation benefits to the employee as provided by law. While receiving these benefits, the employee filed a tort action on March 18, 1970, against Earl Gibbon Transport, Inc., the tortfeasor, and Transport Insurance Company, its insurer, under the provisions of LSA-R.S. 23:1101, with proper notice being given to Bituminous. The latter intervened in the tort action under the provisions of LSA-R.S. 23:1102, and asserted its claim for reimbursement from the tortfeasor that is allowed by LSA-R.S. 23:1103.

The suit came on for trial by jury on March 28, 1972, but shortly after the jury had been selected the employee and the defendant, Earl Gibbon Transport, Inc., and Transport Insurance Company agreed to compromise. After some out-of-court negotiations, the parties went to the judge's chambers and dictated to the court reporter a stipulation of compromise on March 29, 1972. The stipulation provided that Roberson's tort claim against Earl Gibbon Transport, Inc., was compromised for the principal sum of $62,500.00 plus costs, reserving unto Bituminous its right against the defendants for reimbursement of workmen's compensation benefits it had paid or might have to pay in the future to said Roberson. The stipulation further provided that the intervention of Bituminous was continued without date, and that the claim of Bituminous against the defendants would be disposed of at some time in the future by those parties. The stipulation recited that counsel for all parties, including Bituminous, were present while it was being dictated and consented to the compromise.

Yet, subsequent to the compromise agreement, Bituminous did on November 30, 1972, terminate compensation payments to the employee. On April 11, 1973, Roberson filed suit to reinstate his workmen's compensation benefits and the matter was tried on February 28, 1975, resulting in a judgment in his favor. The judgment was read and signed on April 3, 1975, and the defendants have perfected a suspensive appeal.

Appellants base their refusal to make further payments on LSA-R.S. 23:1103, which provides that if damages are recovered in a suit by the employee against the third person, the judgment shall apportion the damages so that the employer's reimbursement take precedence over the claim of the employee. The specific part of the statute upon which the appellants rely reads as follows:

'. . . (I)f the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment.'

There is no merit in appellants' contention. The Supreme Court of our state, in Crabtree v. Bethlehem Steel Corporation, 284 So.2d 545, 555 (La.1973), and this court in Compton v. North River Insurance Co., 281 So.2d 848, 852 (La.App., 1st Cir. 1973), writ denied, 284 So.2d 336, have decided that money received by way of compromise does not represent damages recovered by judgment; therefore an employer cannot receive credit against compensation liability for sums received by an employee through a compromise of a tort claim against a third person.

In the Crabtree case the court stated its basis for decision as follows:

'. . . sums received by way of compromise are not paid to satisfy 'a legal liability to pay damages', La.R.S. 23:1101, so as to be under the statutory scheme subject to apportionment between the employer and the employee.'

To the same effect is the Compton case, wherein the court said:

'Inasmuch as the $11,000 payment was a compromise settlement and did not represent damages recovered by judgment, the employer and its workmen's compensation insurer, which had not intervened, are not entitled to any credit, the first paragraph of R.S. 23:1103 being by its very terms inapplicable. To hold otherwise, in our opinion, amounts to judicial amendment of the statute and a judicial recognition of an inherent right to a credit in favor of the employer or its workmen's compensation insurer or both. Had the Legislature desired to establish such a more extensive right to a credit beyond the terms of R.S. 23:1103, the Legislature would undoubtedly have used more pervasive language in the statute.'

Further, in the Compton case the court found it to be crucial that the money received by the employee was not recovered by judgment, 'but instead (was) received in compromise settlement of the pending tort suit.' In the Crabtree case it is pointed out that LSA-R.S. 23:1101, which forms the basis for LSA-R.S. 23:1102 and 1103, refers to 'a legal liability to pay damages' existing in the third person. However, the money paid...