Vallier v. Oilfield Const. Co., Inc., 84-999

• Decision Date: 05 February 1986
• Docket Number: No. 84-999,84-999
• Citation: 483 So.2d 212
• Parties: Jimmy VALLIER, Plaintiff-Appellant, v. OILFIELD CONSTRUCTION COMPANY, INC., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 212

483 So.2d 212

Jimmy VALLIER, Plaintiff-Appellant, v. OILFIELD CONSTRUCTION COMPANY, INC., et al., Defendants-Appellees.

No. 84-999.

Court of Appeal of Louisiana,

Third Circuit.

Feb. 5, 1986.

Pucheu, Pucheu & Pucheu, Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellant.

Young & Burson, Terrance Hoychick, Eunice, Glusman, Moore & Wilkinson, Kirk A. Bergeron, Baton Rouge, for defendants-appellees.

Before DOMENGEAUX, LABORDE and KING, JJ.

KING, Judge.

The sole issue presented by this appeal is whether or not the trial court erred in granting a summary judgment in favor of a worker's compensation insurer in a suit brought by the plaintiff against a prospective employer and its insurer under LSA-R.S. 23:1361, an anti-discrimination statute of the Louisiana Worker's Compensation Law.

On March 9, 1983, Jimmy Vallier (hereinafter referred to as plaintiff) brought suit against Oilfield Construction Company, Inc., Oilfield Enterprises, Inc., and Oilfield Marine Inc. (all three defendants hereinafter referred to as Oilfield), under LSA-R.S. 23:1361, an anti-discrimination statute of the Louisiana Worker's Compensation Law, alleging that he was denied employment with Oilfield because of a prior worker's compensation claim. On April 4, 1984 plaintiff filed a supplemental petition, adding United General Insurance Company (hereinafter referred to as United General) as a defendant to the suit, on the basis that United General had issued a worker's compensation insurance policy to Oilfield which was in effect on the date that Oilfield allegedly unlawfully failed to hire plaintiff. United General filed a Motion for Summary Judgment and attached as an exhibit to the motion a certified copy of the policy of insurance issued by it to Oilfield. The trial court granted the summary judgment and signed a judgment on August 21, 1984 dismissing with prejudice plaintiff's suit against United General. Plaintiff devolutively appeals and argues that the trial court erred in granting the summary judgment in favor of United General because (1) the terms of the policy issued by United General to Oilfield are ambiguous and do not exclude coverage for plaintiff's claim; and (2) in the alternative, that any worker's compensation insurance policy which excludes coverage of claims brought against an insured, based on LSA-R.S. 23:1361, is invalid and must be reformed to conform with LSA-R.S. 23:1162 to cover the entire liability of the employer. We affirm.

SUMMARY JUDGMENT

A summary judgment is appropriate only if the evidence shows no genuine issue as to any material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966; Mitchell v. Windham, 469 So.2d 381 (La.App. 3rd Cir.1985). This appeal does not concern the issue as to whether or not plaintiff was in fact unlawfully discriminated against by Oilfield. This appeal only involves the question of whether or not, as a matter of law and fact, the worker's compensation insurance policy issued by United General to Oilfield provides coverage for plaintiff's claim, if in fact plaintiff's claim of unlawful discrimination is valid. Consequently, this Court must only determine on this appeal whether or not United General was entitled to judgment on the issue of insurance coverage.

COVERAGE UNDER THE POLICY

Plaintiff first contends that his claim, which is based on LSA-R.S. 23:1361, is covered by the worker's compensation insurance policy issued to Oilfield by United General because the terms of the policy are ambiguous and do not exclude coverage of his claim. In support thereof, plaintiff calls our attention to the following provisions of the policy:

"INSURING AGREEMENTS

I Coverage A--Workmen's Compensation

To pay promptly when due all compensation and other benefits required of the insured by the workmen's compensation law.

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III Definitions

(a) Workmen's Compensation Law. The unqualified term 'workmen's compensation law' means the workmen's compensation law or worker's compensation law and any occupational disease law of a state designated in Item 3 of the declarations, but does not include those provisions of any such law which provide non-occupational disability benefits."

"CONDITIONS

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8. Statutory Provisions--Coverage A. The company shall be directly and primarily liable to any person entitled to the benefits of the workmen's compensation law under this policy. The obligations of the company may be enforced by such person, or for his benefit by any agency authorized by law, whether against the company alone or jointly with the insured. Bankruptcy or insolvency of the insured or of the insured's estate, or any default of the insured, shall not relieve the company of any of its obligation under coverage A.

As between the employee and the company, notice or knowledge of the injury on the part of the insured shall be notice or knowledge, as the case may be, on the part of the company; the jurisdiction of the insured, for the purposes of the workmen's compensation law, shall be jurisdiction of the company and the company shall in all things be bound by and subject to the findings, judgments, awards, decrees, orders or decisions rendered against the insured in the form and manner provided by such law and within the terms, limitations and provisions of this policy not inconsistent with such law.

All of the provisions of the workmen's compensation law shall be and remain a part of this policy as fully and completely as if written herein, so far as they apply to compensation and other benefits provided by this policy and to special taxes, payments into security or other special funds, and assessments required of or levied against compensation insurance carriers under such law.

The insured shall reimburse the company for any payments required of the company under the workmen's compensation law, in excess of the benefits regularly provided by such law, solely because of injury to (a) any employee by reason of the serious and wilful misconduct of the insured, or (b) any employee employed by the insured in violation of law with the knowledge or acquiescence of the insured or any executive officer thereof."

United General contends that the policy is not ambiguous and clearly excludes coverage for plaintiff's claim, and refers us to the following provision of an endorsement to the policy as support thereof:

"BROAD FORM ALL STATES ENDORSEMENT

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7. The insurance afforded by this endorsement does not cover fines or penalties imposed on the insured for failure to comply with the requirements of any workmen's compensation law." (Emphasis added.)

LSA-R.S. 23:1361, which provides the basis for plaintiff's claim, states in relevant part that:

"A. No person, firm or corporation shall refuse to employ any applicant for employment because of such applicant having asserted a claim for worker's compensation benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Section shall require a person to employ an applicant who does not meet the qualifications of the position sought.

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C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year's earnings, together with a reasonable attorney's fee." (Emphasis added.)

Any ambiguity in an insurance contract will be construed against the insurer and in favor of the insured. Percy v. Safeguard Ins. Co., 460 So.2d 724 (La.App. 3rd Cir.1984), writ granted, 463 So.2d 596 (La.1985), case dismissed, 464 So.2d 1366 (La.1985). Nevertheless, an insurance contract is to be given a fair, reasonable and sensible construction compatible with the apparent object and plain intention of the parties as expressed in words of the agreement. Carlyon v. Aetna Cas. & Sur. Co., 413 So.2d 1355 (La.App. 3rd Cir.1982). The insuring agreement must be read together with applicable exclusions. Southwest La. Grain v. Howard A. Duncan, Inc., 438 So.2d 215 (La.App. 3rd Cir.1983), writs den., 441 So.2d 1224 (La.1983) and 442 So.2d 447 (La.1983). If more than one interpretation of an exclusion is reasonable, the one affording coverage to the insured will be adopted. Lucito v. Louisiana Hospital Service, Inc., 392 So.2d 700 (La.App. 3rd Cir.1980).

Plaintiff argues that under Wiley v. Missouri Pacific R. Co., 430 So.2d 1016 (La.App. 3rd Cir.1982), writ den., 431 So.2d 1055 (La.1983), the liability placed upon a prospective employer who discriminatorily fails to hire a person based on that person's worker's compensation claim history is not a penalty, and that the exclusion relied upon by defendant is therefore inapplicable. In Wiley, this court stated:

"The principal purpose of R.S. 23:1361 is remedial, rather than penal. Remedial and penal statutes are distinguishable in terms of the nature of the evil sought to be remedied by the legislation; it is penal if it undertakes to redress to the public and remedial if it undertakes to remedy a wrong to the individual. 3 Sutherland, Statutory Construction, Sec. 60.03, at 33 (4th ed. Sands, 1974); State v. Boniface, 369 So.2d 115 (La.1979). R.S. 23:1361 was designed to protect individuals from discrimination by virtue of their assertion of legal right.

Inasmuch as R.S. 23:1361 is a remedial statute, it is to be liberally construed to suppress the evil and to advance the remedy. Starks v. Orleans Motors, Inc., 372 F.Supp. 928 (E.D.La.1974). What is a liberal construction is ordinarily one which makes the statutory rule or principle apply in...