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July 2022

Category: July 2022

Lancer Ins. Co. v. Jet Exec. Limousine Serv.

United States District Court for the Northern District of Georgia, Atlanta Division

July 14, 2022, Decided; July 14, 2022, Filed

CIVIL ACTION FILE NO. 1:19-CV-3024-TWT

Reporter

2022 U.S. Dist. LEXIS 125649 *

LANCER INSURANCE COMPANY, Plaintiff, v. JET EXECUTIVE LIMOUSINE SERVICE, INC., et al., Defendants.

Core Terms

coverage, insured, endorsement, Policies, summary judgment, interstate, Transportation, travel, journey, intrastate, genuine issue of material fact, argues, declaration, provisions, trip, continuity, lists, interstate commerce, statutory minimum, cross motion, Undisputed, passengers, Parties, rented, material fact, motor carrier, broker, Reply, hotel, coverage obligation

Counsel:  [*1] For Jet Executive Limousine Service, Inc., Defendant: Wesley Clements Taulbee, LEAD ATTORNEY, Taulbee, Rushing, Snipes, Marsh & Hodgin, LLC, Statesboro, GA; James Townshend Budd, PRO HAC VICE, Mabry & McClelland, LLP, Atlanta, GA.

For Philadelphia Indemnity Insurance Company, Defendant: Kim M. Jackson, LEAD ATTORNEY, David Russell Smith, Bovis, Kyle, Burch & Medlin, LLC, Atlanta, GA.

For Cooper-Global Chauffeured Transportation, Inc., Defendant: Gerald B. Kline, Taylor English Duma LLP, Atlanta, GA; William Gordon Leonard, Continuum Legal Group LLP, Atlanta, GA.

For Steven Hoppenbrouwer, Defendant: James Townshend Budd, PRO HAC VICE, Mabry & McClelland, LLP, Atlanta, GA.

For Kent Plowman, Defendant: Brooks P. Neely, Zagoria Law firm, Atlanta, GA; Myrece Rebecca Johnson, Rebecca Beane, Swift, Currie, McGhee & Hiers, LLP, Atlanta, GA.

For Thomas Matthesen, Defendant: Arthur Bryan Baer, LEAD ATTORNEY, The Baer Law Firm, Atlanta, GA.

For Sahil Raina, Robin Raina, Defendants: James Franklin Cook, Jr., LEAD ATTORNEY, Drew Eckl & Farnham LLP, Atlanta, GA; Jeremy Hayes, Boling Rice, LLC, Cumming, GA.

For Wesley Hudson, Brian Dill, Defendants: Davis Kingsley Loftin, Jeffrey Norman Mykkeltvedt, LEAD [*2]  ATTORNEYS, Mykkeltvedt & Loftin, LLC, Atlanta, GA; Joe A. King, Jr., Joseph D. Aiello, LEAD ATTORNEYS, PRO HAC VICE, Morris, King & Hodge, P.C., Huntsville, AL.

For Georganna Gullia, Defendant: Barry Goodman, PRO HAC VICE, Goodman & Goodman, LLP, Atlanta, GA; Michael D. Goodman, Goodman & Goodman, Atlanta, GA; Titus Thomas Nichols, Nichols Injury Law, P.C., Marietta, GA.

For Joseph Best, Defendant: Peter A. Law, LEAD ATTORNEY, Denise Hoying, E. Michael Moran, Law & Moran, Atlanta, GA.

For Jessica Barnes, Defendant: Jeff P. Shiver, LEAD ATTORNEY, Shiver Hamilton, LLC -Atl, Atlanta, GA; Alan J. Hamilton, Darrell Wayne Hinson, Shiver Hamilton LLC, Atlanta, GA.

For John Mason, Defendant: Bradley W. Pratt, LEAD ATTORNEY, Pratt Clay, LLC, Atlanta, GA; Charles L. Clay, Jr., LEAD ATTORNEY, Pratt Clay, LLC, Atlanta, GA; Wesley Clements Taulbee, LEAD ATTORNEY, Taulbee, Rushing, Snipes, Marsh & Hodgin, LLC, Statesboro, GA.

For Kenny Strickler, Defendant: Michael K. Beard, LEAD ATTORNEY, Marsh, Rickard & Bryan, P.C., Birmingham, AL; W. Andrew Bowen, LEAD ATTORNEY, Middleton, LLC, Savannah, GA; Paul W. Painter, III, Bowen Painter, LLC, Savannah, GA.

For Tim Sheehy, Defendant: Joseph A. Fried, Nathan [*3]  A. Gaffney, LEAD ATTORNEYS, Briant G. Mildenhall, Fried Goldberg LLC, Atlanta, GA.

For Scott Armstrong, Alan Cooling, Defendants: Alexander Vida Salzillo, LEAD ATTORNEY, Waldon Adelman Castilla Hiestand & Prout, Atlanta, GA; Terry Dale Jackson, LEAD ATTORNEY, PRO HAC VICE, Terry D. Jackson, P.C., Atlanta, GA; Stephen G. Lowry, Harris Lowry Manton, LLP – S. Ga, Savannah, GA.

Judges: THOMAS W. THRASH, JR., United States District Judge.

Opinion by: THOMAS W. THRASH, JR.

Opinion


OPINION AND ORDER

This is a declaratory judgment action. It is before the Court on the Plaintiff’s Motion for Summary Judgment [Doc. 237], the Defendants Jessica Barnes and Joseph Best’s Cross Motion for Summary Judgment [Doc. 248], and the Defendant Cooper-Global Chauffeured Transportation, Inc.’s Cross Motion for Summary Judgment [Doc. 264]. For the reasons set forth below, the Plaintiff’s Motion for Summary Judgment [Doc. 237] is GRANTED in part and DENIED in part, the Defendants Jessica Barnes and Joseph Best’s Cross Motion for Summary Judgment [Doc. 248] is GRANTED in part and DENIED in part, and the Defendant Cooper-Global Chauffeured Transportation, Inc.’s Cross Motion for Summary Judgment [Doc. 264] is GRANTED in part and DENIED in part. [*4] 


I. Background

On April 5, 2018, a 2011 Freightliner Motor Coach (“the Motor Coach”) was involved in a single-vehicle accident on Interstate 20 in Columbia County, Georgia. (Pl.’s Statement of Undisputed Material Facts in Supp. of Pl.’s Mot. for Summ. J. ¶ 1.) The Motor Coach was owned by the Defendant Jet Executive Limousine Service, Inc. (“Jet”) and was carrying 18 passengers and the driver, Stephen Hoppenbrouwer. (Id. ¶¶ 1-2.) Jet insured the Motor Coach through the Defendant Philadelphia Indemnity Insurance Company. (Id. ¶ 4.) Though there are factual disputes regarding the specifics, the Defendants claim that their reservation of the Motor Coach was made through the Defendants Cooper-Global Chauffeured Transportation, Inc. (“Cooper-Global”) and Hennessy Transportation, Inc. (“Hennessy”), which then referred the reservation to Jet to accommodate the passengers’ specific request. (Defs. Barnes and Best’s Statement of Add’l Fact in Opp’n to Pl.’s Mot. for Summ. J. ¶ 2-4.)

Cooper-Global and Hennessy had five insurance policies issued by the Plaintiff, Lancer Insurance Company (“Lancer”), at the time of the accident. (Pl.’s Statement of Undisputed Material Facts in Supp. of Pl.’s Mot. [*5]  for Summ. J. ¶ 5.) Lancer issued Hennessy two commercial auto liability policies, “the Hennessy Primary Policy” and “the Hennessy Excess Policy.” (Compl., Exs. 5 & 6.) Lancer issued Cooper-Global three different policies: “the Cooper-Global Primary Policy,” “the Cooper Global Excess Policy,” and a commercial general liability policy (“the CGL Policy”). (Id., Ex. 1-3.) An endorsement to the CGL Policy names Hennessy as an additional insured. (Id., Ex. 3, at 6.) The Plaintiff filed this suit seeking declaratory relief that these five Policies do not obligate it to provide coverage for any claims resulting from the accident. (Compl. at 13.) The Parties have filed cross motions for summary judgment on these claims, which the Court evaluates below.


II. Legal Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The court should view the evidence and draw any inferences in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue [*6]  of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).


III. Discussion

The Plaintiff raises several arguments in favor of its Motion for Summary Judgment. First, the Plaintiff argues that the Hennessy Policies and the Cooper-Global Excess Policy do not impose a duty to defend upon it because the accident did not involve a vehicle covered under the Policies. (Pl.’s Br. in Supp. of Pl.’s Mot. for Summ. J., at 16-20.) Second, the Plaintiff argues that the CGL Policy’s Auto Exclusion precludes coverage of the accident. (Id. at 20-22.) Finally, the Plaintiff argues that the MCS-90B Endorsement of the Cooper-Global Excess Policy does not apply because the bus was completing an intrastate trip. (Id. at 24-25.) After the Plaintiff filed its Motion for Summary Judgment, many of the Defendants responded individually and filed their own Cross-Motions for Summary Judgment. Several Defendants presented their own arguments while adopting additional arguments of their fellow Defendants, particularly those arguments made by Jessica Barnes and Joseph Best. The result is a mosaic [*7]  of overlapping arguments presented in different manners. Rather than address each responsive brief separately, the Court will evaluate each disputed Policy in turn, noting specific arguments made by the Parties when necessary to avoid any unwarranted repetition.


A. The Cooper-Global Primary Policy

In its Complaint, the Plaintiff seeks a declaration that it has no obligation to provide coverage under the Cooper-Global Primary Policy. (Compl. at 13.) However, it is undisputed that the Plaintiff has already tendered the Policy’s limit to resolve the claims against its insureds. (Pl.’s Statement of Undisputed Material Facts in Supp. of Pl.’s Mot. for Summ. J. ¶ 55.) Further, the Plaintiff implicitly abandons its claims for such a declaration in its briefing. (Pl.’s Br. in Supp. of Pl.’s Mot. for Summ. J., at 26.) As a result, there is no genuine issue of material fact that the Plaintiff is not entitled to a declaration that it has no coverage obligation under the Cooper-Global Primary Policy.


B. The CGL Policy

The Plaintiff issued Cooper-Global the CGL Policy, which obligated the Plaintiff to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ [*8]  or ‘property damage’ to which this insurance applies.” (Compl., Ex. 4, at 12.) An endorsement to the CGL Policy lists Hennessy as an additional named insured under the CGL Policy. (Id., Ex. 4, at 6.) In support of its motion, the Plaintiff directs the Court to a “standard auto exclusion” included in the Policy which it argues bars coverage of this accident. (Pl.’s Br. in Supp. of Pl.’s Mot. for Summ. J., at 20.) This provision excludes coverage for “‘[b]odily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured.” (Compl., Ex. 4, at 15.) Further, the exclusion notes that it “applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured” if the harms resulted from the “use or entrustment to others of any” automobile “owned or operated by or rented or loaned to any insured.” (Id.) The Plaintiff argues that this exclusion applies to the allegations in the underlying lawsuits regarding the accident. (Pl.’s Br. in Supp. of Pl.’s Mot. for [*9]  Summ. J., at 20-22.) The Defendants contest this assessment because the Motor Coach was not “owned or operated or rented or loaned to any insured.” (Defs. Barnes & Best’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 22-23; Def. Cooper-Global’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 15.) In reply, the Plaintiff notes that Georgia courts read auto exclusions broadly, and because these “claims are inextricably linked to the use of an auto[,]” the exclusion must apply. (Pl.’s Reply Br. in Supp. of Pl.’s Mot. for Summ. J. [Doc. 278], at 21.)

By its plain language, the CGL Policy applies to the accident here absent a valid exclusion. The Plaintiff appears to concede as much by focusing its argument exclusively on the auto exclusion. Under Georgia law, the insurer has the burden of proving an exclusion applies. See York Ins. Co. v. Williams Seafood of Albany, Inc., 223 F.3d 1253, 1255 (11th Cir. 2000) (citing Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 471, 287 S.E.2d 257 (1981)). To satisfy its burden, it must show that the injuries alleged in the underlying lawsuits arose out of the use of an auto owned, operated, rented by, or leased to an insured. Clearly, the injuries caused by the accident arose out of the use of an “auto” as defined in the Policy.1 The question before the Court is whether that auto was owned, operated, rented by, or [*10]  leased to an insured.

To answer this question, the Court must first determine who is insured under the CGL Policy, which is covered in Section II of the Policy. Beyond Cooper-Global and Hennessy as corporations, the CGL Policy includes “your ’employees’, . . . but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.” (Compl., Ex. 4, at 21.)

Given these broad definitions, the Court must determine whether the Motor Coach’s driver, Hoppenbrouwer, is an insured here, as the Parties dispute whether he qualifies as a Cooper-Global or Hennessy employee. The Plaintiff argues that the underlying lawsuits “allege that Hoppenbrouwer operated the Motor Coach as an employee of Hennessy and Cooper-Global.” (Pl.’s Br. in Supp. of Pl.’s Mot. for Summ. J., at 21.). In response, the Defendants characterize the underlying suits as alleging “that Cooper-Global and Hennessy are vicariously liable for Jet/Hoppenbrouwer’s negligence and/or independently liable for their own negligence in selecting and entrusting Hoppenbrouwer to drive” the Motor Coach. (Defs. Barnes & Best’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 22; see also Def. [*11]  Sheehy’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 8 (arguing that Hoppenbrouwer was an independent contractor for Cooper-Global and Hennessy, rendering them liable through the CGL Policy).)

In the end, it is not necessary to sort out the exact basis for any liability of Cooper-Global and Hennessy for the actions of Hoppenbrouwer. If he was an insured employee, coverage is excluded under the auto exclusion. If there is vicarious liability under any plausible theory against the named insureds Cooper-Global and Hennessy arising out of the operation of the Motor Coach, coverage is excluded under the auto exclusion. Video Warehouse, Inc. v. S. Tr. Ins. Co., 297 Ga. App. 788, 790-91, 678 S.E.2d 484 (2009) (“The point is, for liability to attach to Video Warehouse under this particular complaint, the employee had to be acting within the scope of his employment or performing duties related to the conduct of Video Warehouse’s business. Yet, if the employee was so acting or was performing such duties, then by definition he was an ‘insured’ under the policy, and under the exclusionary clause, the policy expressly excluded from coverage bodily injury arising out of the use of an automobile owned or operated by such an insured.”). If he was not an insured, there is no coverage under [*12]  the policy to begin with. Id. at 791. Therefore, the Plaintiff is entitled to summary judgment with respect to coverage under the CGL Policy.


C. The Cooper-Global Excess Policy

The Parties dispute whether several provisions of the Cooper-Global Excess Policy trigger coverage obligations for the Plaintiff. The Court addresses each of these disputed provisions and endorsements individually.


i. The Motor Coach is Not a Covered Vehicle

In many of the responsive briefs, the Defendants argue that the Motor Coach is a covered vehicle under the Cooper-Global Excess Policy. As discussed above, the Plaintiff concedes that the Cooper-Global Primary Policy could provide coverage of the Motor Coach. (Pl.’s Br. in Supp. of Pl.’s Mot. for Summ. J., at 12-13.) The Defendants argue that the Cooper-Global Excess Policy is a “follow-form” policy as it relates to the Primary Policy, and without an explicit exclusion of coverage, the Motor Coach remains covered under the Excess Policy. (Defs. Barnes & Best’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 16-19; Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 8-14.) The Plaintiff points to a provision in the Cooper-Global Excess Policy dictating that any [*13]  conflicting or differing provisions between the two policies give way to the provisions of the Excess Policy. (Pl.’s Reply Br. in Supp. of Pl.’s Mot. for Summ. J., at 3-7.) The Defendants respond by claiming that any conflict that exists between the two Policies is too narrow to eliminate coverage of hired vehicles. (See, e.g., Defs. Barnes & Best’s Reply Br. in Supp. of Defs.’ Cross Mot. for Summ. J., at 3-5.)

Because the resolution of this dispute relies on the interaction between the two Cooper-Global Policies, a summary of the Policies is necessary. The Cooper-Global Primary Policy contains a “Schedule of Coverages and Covered Autos.” (Compl., Ex. 2, at 4.) This Schedule lists a series of coverage options alongside the “Covered Autos,” the coverage limits, and the premiums owed for each option. (Id.) Only those coverage options with a premium charge listed next to it are included in the Policy. (Id.) There are four coverage options with premiums charged: “Liability;” “Uninsured Motorists;” “Physical Damage Specified Causes of Loss Coverage;” and “Physical Damage Collision Coverage.” (Id.) The group of “Covered Autos” under each coverage are indicated by numbers which are defined [*14]  in the “Business Auto Coverage Form.” (Compl., Ex. 2, at 4, 64.) All coverages except for “Liability” have only one number—7—listed under the “Covered Autos.” The “Business Auto Coverage Form” shows that 7 stands for the vehicles “described in Item Three of the Declarations[.]” Item Three of the Declarations contains a list of ninety-two vehicles. (Id., Ex. 2, at 5-7.) Thus, all applicable coverages except for the “Liability” coverage apply only to these ninety-two vehicles. The “Liability” coverage applies to three categories of vehicles, listed as “7, 8, 9.” (Id., Ex. 2, at 4.) According to the policy, “8” indicates coverage for vehicles that the insured “lease[s], hire[s], rent[s], or borrow[s].” (Id., Ex. 2, at 64.) “9” indicates coverage for vehicles the insured “do[es] not own, lease, hire, rent, or borrow that are used in connection with [the insured’s] business.” (Id.) Thus, the “Liability” coverage under the Cooper-Global Primary Policy extends beyond the vehicles owned by Cooper-Global and includes unlisted vehicles used in connection with Cooper-Global’s business. And, as discussed above, Lancer has already tendered this Policy’s limit to resolve the claims against its insureds. [*15] 

The Defendants argue that the Cooper-Global Excess Policy is a “follow form” policy because of the following language included in the preamble of the “Commercial Excess Liability Coverage Form”:

The insurance provided under this Coverage Part will follow the same provisions, exclusions and limitations that are contained in the applicable “controlling underlying insurance”, unless otherwise directed by this insurance. To the extent such provisions differ or conflict, the provisions of this Coverage Part will apply.

(Id., Ex. 3, at 11.) The Defendants then direct the Court to the “Schedule of Covered Autos,” which identifies twenty-three vehicles as covered autos. (Id., Ex. 3, at 5.) Because the Cooper-Global Excess Policy lists these twenty-three vehicles but does not explicitly exclude coverage for vehicles included under groups “8” and “9” from the Primary Policy, the Defendants argue that this excess coverage applies to those leased and non-leased vehicles used in connection with Cooper-Global’s business. (Defs. Barnes & Best’s Br. in Opp’n to Pl.’s Mot. for Summ. J, at 17-19.) The Defendants also argue that the Policy is at least ambiguous and must be construed against the Plaintiff [*16]  and in favor of coverage. (Id. at 19-21.)

The Defendants rely heavily on the absence of an explicit exclusion of the non-owned vehicles covered under the Primary Policy. However, such an exclusion is not necessary here, as the Cooper-Global Excess Policy clearly limits coverage to the twenty-three vehicles specifically identified in the policy. The Cooper-Global Primary and Excess Policies detail the coverages provided through different formats. The Primary Policy lists several different types of coverages and then uses a numeric code to describe the “Covered Autos” to convey this information on one page. (Compl., Ex. 2, at 4.) On the other hand, the Excess Policy only details one type of coverage. (Id., Ex. 3, at 3.) Rather than numeric codes, the Excess Policy includes a “Schedule of Covered Autos for Auto Liability.” (Id., Ex. 3, at 5.) As the text above this list of vehicles states in bolded type, “THIS ENDORSEMENT CHANGES THE POLICY.” (Id.) Here, it seems clear that that the “Schedule of Covered Autos for Auto Liability” in the Excess Policy conflicts with the “Covered Autos” indicated by numeric codes in the Primary Policy. As a result, the Court finds that the collection of Covered [*17]  Autos listed in the Primary Policy as “7, 8, 9” gives way to the schedule of Covered Autos under the Excess Policy, and that the Motor Coach does not fall within the Excess Policy’s Covered Autos.

The Defendants argue that only the two lists of vehicles conflict in the two Policies, and therefore the list in the Excess Policy’s schedule should merely replace the list of ninety-two vehicles in the Primary Policy. But that argument assumes these lists represent identical categories, which is incorrect. While the Excess Policy’s schedule lists the covered autos under the Policy, the Primary Policy’s schedule of vehicles merely defines the vehicles included in “Specifically Described ‘Autos'” of the Policy’s Business Auto Coverage Form. (Id., Ex. 2, at 4-7, 64.) Because these lists define different terms within the relevant policies, the Defendants cannot argue that the specific vehicles listed in each Policy constitute the full extent of the differences between the Policies. Both Policies define the set of covered autos differently, and because the Motor Coach is not listed in the Excess Policy’s covered autos, its coverage is not triggered here.


ii. The MCS-90B Endorsements Provide No [*18]  Coverage Here

Anticipating an argument by the Defendants, the Plaintiff argues that the Cooper-Global Excess Policy’s MCS-90B Endorsement does not apply to the accident here. (Pl.’s Br. in Supp. of Pl.’s Mot. for Summ. J., at 24-25.) The MCS-90B Endorsement is a means of complying with federal insurance regulations for motor carriers:

An MCS-90 endorsement to an automotive insurance policy obligates an insurer to cover an insured’s negligence involving vehicles subject to the financial responsibility requirements of the Motor Carrier Act. The Motor Carrier Act, in turn, creates minimum levels of financial responsibility for the transportation of property by motor carrier within the United States.

Grange Indem. Ins. Co. v. Burns, 337 Ga. App. 532, 533, 788 S.E.2d 138 (2016) (citation, quotation marks, and alterations omitted). In essence, an MCS-90 endorsement2 “creates a suretyship, which obligates an insurer to pay certain judgments against the insured arising from interstate commerce activities, even though the insurance contract would have otherwise excluded coverage.” Id. at 534 (citation and quotation marks omitted). The Plaintiff argues that because the route in this case was entirely contained to Georgia, the MCS-90B endorsement does not apply here. (Pl.’s Br. in [*19]  Supp. of Pl.’s Mot. for Summ. J., at 24.) This argument is supported by the statute granting the Secretary of Transportation authority to enforce certain minimum coverage amounts for motor carriers:

The Secretary of Transportation shall prescribe regulations to require minimum levels of financial responsibility sufficient to satisfy liability amounts established by the Secretary covering public liability and property damage for the transportation of passengers for compensation by motor vehicle in the United States between a place in a State and—

(A) a place in another State;

(B) another place in the same State through a place outside of that State; or

(C) a place outside the United States.

49 U.S.C. § 31138(a)(1); see also Canal Ins. Co., 625 F.3d at 249 (holding that the character of the journey at the time of the loss determines the MCS-90 endorsement’s applicability and noting that its position is the majority view).

In response, the Defendants raise several arguments. Several Defendants claim that the endorsement “applies to all federally authorized carriers regardless of” whether the trips occurred in interstate or intrastate travel. (Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 17; see also Def. [*20]  Strickler’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 22.) Further, they argue that the endorsement should be construed and applied liberally to serve the legislative intent behind the requirements. (Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 17.) Alternatively, the Defendants Armstrong and Cooling appear to concede that the endorsement requires the trip to be interstate in nature, arguing that the trip here was merely one leg in an interstate trip for individuals traveling from outside Georgia to attend the Masters. (Defs. Armstrong & Cooling’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 4-7.) The Defendants cite Eleventh Circuit case law from a different context that describes intrastate legs of interstate journeys as falling within the meaning of “interstate commerce.” (Id. at 5-6.)

The Eleventh Circuit has acknowledged its case law on MCS-90 endorsements is sparse, and it has not opined on whether such endorsements only cover incidents that occur during interstate journeys. Nat’l Specialty Ins. Co. v. Martin-Vegue, 644 F. App’x 900, 906 (11th Cir. 2016). Here, the Court adopts the majority view that the MCS-90B endorsement’s applicability is determined by whether the vehicle is engaged in interstate travel at the time of the loss, as [*21]  this view most closely aligns with the statutory text requiring such endorsements. See 49 U.S.C. § 31138(a)(1); see also Nat’l Specialty Ins. Co., 644 F. App’x at 907 n.9 (adopting, because the parties agreed, the perspective that “the time of the accident is the relevant focal point” in determining certain characteristics that would invoke the MCS90 endorsement).

Having determined the majority view controls here, the Court must assess whether the Motor Coach’s journey between Atlanta and Augusta was an interstate or intrastate trip. In other contexts, the Eleventh Circuit has provided the general rule that “trips within a single state are made in interstate commerce when they are part of a practical continuity of movement of the goods in interstate commerce.” Abel v. S. Shuttle Servs., Inc., 631 F.3d 1210, 1215 (11th Cir. 2011) (quotation marks omitted). For example, in Abel, the Eleventh Circuit held that a shuttle company that transported individuals to and from several Florida airports without leaving the state engaged in interstate commerce. Id. at 1216. Several conditions were critical to the Panel’s analysis: (1) the shuttle passengers had mostly flown from or were about to fly to other states or countries; (2) travelers often boarded these shuttles with tickets purchased in packages that included airfare and hotel accommodations; [*22]  and (3) these packages resulted from an arrangement between the shuttle company and online travel companies. Id. at 1216-17. The Eleventh Circuit also cited case law that held “the lack of coordination with other transportation” providers could render a journey “purely intrastate.” Id. at 1216 (quotation marks omitted) (citing Packard v. Pittsburgh Transp. Co., 418 F.3d 246, 258 (3d. Cir. 2005)).

Ultimately, this Court finds that the relevant journey here constituted intrastate travel because there was no practical continuity of movement or evidence of coordination between transportation providers. First, regarding the practical continuity of movement, the undisputed facts show that the Motor Coach’s planned route was from the Atlanta hotel to the Masters Tournament in Augusta. (Pl.’s Statement of Undisputed Material Facts in Supp. of Pl.’s Mot. for Summ. J. ¶ 3.) The Defendants argue that the Motor Coach’s journey must be “viewed as part of overall, continuous interstate travel” because the Defendants’ “trips began and terminated outside Georgia[.]” (Defs. Armstrong & Coolings’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 6; see also Defs. Barnes and Best’s Response to Pl.’s Statement of Undisputed Material Facts in Supp. of Pl.’s Mot. for Summ. J. ¶ 3.) The Defendants urge [*23]  this Court to read the endorsement liberally to align its coverage with the “evident purpose” of the federal requirement. (Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 23.) However, the Court is not entitled to construe “interstate commerce” more broadly than precedent allows. The fact that the Defendants experienced the Motor Coach route as merely one leg of their trip to Augusta is not determinative of whether the Motor Coach maintained the practical continuity of their journey. Such a finding would massively expand activities that fall within interstate travel, rendering every outing taken by out-of-state tourists interstate commerce. Instead, the Court finds there is no practical continuity of movement between the Defendants’ interstate journeys to arrive in Atlanta and the Defendants’ intrastate journey from the Atlanta hotel to Augusta. In essence, the arrival at the Atlanta hotel interrupts the Defendants’ practical continuity of movement in interstate travel.

Second, and related to the practical continuity of movement, there was no coordination between the interstate and intrastate transportation providers. Evidence in the record indicates that the Motor [*24]  Coach passengers were invited to the Masters by an accounting firm, Cherry Bekaert, and were responsible for their own travel from the Atlanta airport to the hotel. (Thompson Dep., at 34:1-5.) Once the passengers were at the hotel, Cherry Bekaert arranged for bus travel to Augusta with Hennessy. (Defs. Armstrong & Cooling’s Add’l Material Facts ¶ 78.) This lack of coordination highlights this disconnect between the Defendants’ interstate and intrastate travel. Because these two legs of the journey were not coordinated and did not represent a practical continuity of movement, the Motor Coach’s journey was purely intrastate travel, and the Cooper-Global Excess Policy’s MCS-90B endorsement therefore does not apply here.


iii. The Form F Endorsements Do Not Apply to Cooper-Global

The Parties make similar arguments regarding the Form F endorsements attached to Hennessy and Cooper-Global’s Policies. As some of the Defendants describe it, a “Form F Endorsement is an intrastate version of an MCS-90B Endorsement[.]” (Defs. Armstrong & Cooling’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 12.) The Form F endorsements at issue here are largely identical to those evaluated in Ross v. Stephens, 269 Ga. 266, 269, 496 S.E.2d 705 (1998). In that case, the [*25]  Supreme Court of Georgia found that such an endorsement indicates an agreement “that the insurer would pay the statutory minimum to a party injured by [an insured’s] vehicle not specifically identified in the insurance policy.” Id. Georgia’s Public Service Commission (“PSC”) has set the statutory minimum at $100,000 per claimant and up to $500,000 per incident involving a vehicle with a seating capacity of over twelve passengers. See Ga. Comp. R. & Regs. 515-16-11-.03. The Plaintiff argues that because it already offered to tender $1.5 million under the Cooper-Global Primary Policy, the Form F endorsement imposes no additional obligation. (Pl.’s Br. in Supp. of Pl.’s Mot. for Summ. J., at 25.)

The Defendants raise a variety of arguments in response to the Plaintiff’s view of the Form F endorsement. Several Defendants argue that Georgia law requires payment of the full policy amount under Form F, not just the statutory minimum. (Defs. Armstrong & Cooling’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 14.) Further, these Defendants argue that the Plaintiff’s tender of $1.5 million under Cooper-Global’s Primary Policy does nothing to relieve Hennessy of its Form F obligations. (Id. at 16.) Other Defendants argue Hennessy [*26]  must pay the statutory minimum of $500,000 under the Form F endorsements. (Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 23-27.)

The Defendants imply that Cooper-Global’s tender of its Primary Policy limit extinguishes its Form F liability. (Id. at 26 (“Allowing Hennessy to escape payment simply because Cooper-Global had already tendered an offer would create perverse incentives on the part of the insurers of motor carriers to attempt to wait each other out.”); see also Defs. Armstrong & Cooling’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 16 (“Lancer’s tender for Cooper Global of its $1.5 million auto policy limits does nothing for Hennessy in the face of the verdicts[.]”).) This implication aligns with the Supreme Court of Georgia’s view that when the statutory minimum is paid to an injured party, Georgia’s “public policy is achieved by the assurance to the motoring public of existence of the financial compensation the PSC has deemed minimally necessary[,] . . . and the insurer has provided no more than the liability coverage it agreed to provide the motor common carrier.” Ross, 269 Ga. at 708. As determined above, the Plaintiff’s tender under the Cooper-Global Primary Policy provides [*27]  coverage as to this accident for at least $1.5 million. This amount exceeds the Form F endorsement minimum and satisfies the public policy of compensating victims to the extent determined by the PSC. Cf. Nat’l Specialty Ins. Co., 644 F. App’x at 906-07 (finding that MCS-90 endorsements do not apply where a carrier’s other insurance coverage provides compensation equal to or greater than the statutory minimum). Thus, the Plaintiff’s tender under the Cooper-Global Primary Policy extinguishes any Form F endorsement coverage under the Cooper-Global Excess Policy.

As a result of the above analyses, none of the disputed provisions or endorsements of the Cooper-Global Excess Policy are triggered by this accident. Therefore, there is no genuine issue of material fact that the Plaintiff is entitled to summary judgment on its declaratory claim that is owes no coverage under the Cooper-Global Excess Policy here.


D. The Hennessy Policies

The Hennessy Policies receive much less attention in the briefing than Cooper-Global’s Policies. For example, the Defendants Barnes and Best only address the Cooper-Global Policies, and most Defendants adopt this briefing as their own. (See Defs. Barnes & Best’s Br. in Opp’n to Pl.’s Mot. for Summary Judgment, [*28]  at 5 (noting that Lancer issued five policies to Cooper-Global and Hennessy but only the three Policies issued to Cooper-Global “unambiguously provide coverage”).) The Plaintiff cites provisions of the Hennessy Policies that define the covered vehicles and notes that the Policies do not include the Motor Coach. (Pl.’s Br. in Supp. of Pl.’s Mot. for Summ. J., at 16-18.) None of the Defendants argue to the contrary.

The only arguments implicating the Hennessy Policies are related to the Policies’ Form F endorsements. (Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 23-27; Defs. Armstrong & Cooling’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 12-16.) The Defendants argue that the tender of $1.5 million under the Cooper-Global Primary Policy does nothing to alleviate Hennessy’s Form F liability under its own Policies. (See, e.g., Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 25-26.) In response, the Plaintiff argues that Hennessy is covered under Cooper-Global’s Primary Policy. To support this contention, the Plaintiff points to the Cooper-Global Primary Policy’s definition of the insureds3 and an expert report stating that if Cooper-Global and Hennessy [*29]  merged on February 1, 2018, Cooper-Global’s insurance would cover Hennessy. (Pl.’s Reply Br. to Defs. Armstrong & Cooling’s Br. in Opp’n to Pl.’s Mot for Summ. J., at 18; Pl.’s Reply Br. to Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 15.) However, the Plaintiff points to no evidence indicating a merger between the companies occurred on February 1, 2018, beyond the pleadings. Indeed, one of the Plaintiff’s filings concedes that “there is conflicting evidence regarding whether Cooper-Global and Hennessy merged.” (Pl.’s Response to Defs. Hudson & Dill’s Statement of Add’l Fats ¶ 10.) Further, the Plaintiff does not point to a specific provision of the Cooper-Global Primary Policy’s definitions that would include Hennessy. Unlike the CGL Policy, which explicitly includes both Cooper-Global and Hennessy as named insureds, the Cooper-Global Policy does not name Hennessy. Because there appears to be a genuine dispute as to whether the two companies merged before the accident, and because there is no other evidence suggesting Hennessy is a named insured under the Cooper-Global Excess Policy, Cooper-Global’s tender of $1.5 million does not alleviate Hennessy’s Form F liability. [*30] 

The Plaintiff relies exclusively on this tender to relieve Hennessy’s Form F liability. Because none of the other Policies trigger any coverage as to Hennessy, there is insufficient coverage to meet the statutory minimum of $500,000. Thus, the Form F endorsements of the Hennessy Policies are triggered by the accident, and there is no genuine issue of material fact that the Plaintiff is not entitled to a declaration that it has no coverage obligations under the Hennessy Policies.


E. The Defendants’ Remaining Arguments Fail


i. O.C.G.A. § 33-24-14 Does Not Preclude Reliance on Exclusions

The Defendants Hudson and Dill claim that the Plaintiff “failed to prove” it delivered the Policies to Cooper-Global prior to the accident, and that under Georgia law, such a failure renders the Plaintiff unable to rely upon exclusions in those Policies. (Defs. Hudson & Dill’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 14-15.) However, the Defendants point to no evidence in the record suggesting the Policies were not delivered to Cooper-Global. Instead, the Defendants place the burden on the Plaintiff to prove such delivery was made and insist that “whether Cooper-Global [] received the policy is an issue of disputed [*31]  fact to be decided by a jury[.]” (Id. at 15.) Bare accusations that the delivery did not occur are insufficient at this stage in the proceedings to create a genuine issue of material fact. As a result, Georgia law does not prevent the Plaintiff from relying on exclusions within the Policies here.


ii. The Defendants Fail to Present Evidence of Dual Agency

The Defendants Robin and Sahil Raina argue that a dual agent for the Plaintiff and its insureds was responsible for the purchase of these Policies. (Defs. Raina & Raina’s Br. in Opp’n to Pl.’s Mot. for Summ. J., at 3-4.) The Raina Defendants point to evidence in the record that the Plaintiff paid Cooper-Global and Hennessy’s insurance broker a percentage on their policy purchases. (Rose Dep. at 41:5-8.) However, under Georgia law, insurance brokers “are generally considered the agent of the insured, not the insurer.” Eur. Bakers, Ltd. v. Holman, 177 Ga. App. 172, 173, 338 S.E.2d 702 (1985). Insurance brokers may be considered agents of the insurer under two circumstances: first, “if the plaintiff brings forth evidence that the insurer granted the agent or broker authority to bind coverage on the insurer’s behalf[;]” and second, “if an insurer holds out an independent agent as its agent and an insured justifiably [*32]  relies on such representation.” Popham v. Landmark Am. Ins. Co., 340 Ga. App. 603, 606, 798 S.E.2d 257 (2017) (quotation marks omitted). The Raina Defendants rely solely on the Plaintiff’s payment to the insurance broker in arguing there remains a genuine issue of material fact as to dual agency. Under Georgia law, this is insufficient. Without evidence in the record indicating the Plaintiff’s grant of authority to bind it or the Plaintiff’s holding out of the broker as an agent, the Raina Defendants’ argument fails.


IV. Conclusion

In summary, there is no genuine issue of material fact that the Plaintiff is entitled to a declaration that it has no coverage obligations under the Cooper-Global Excess Policy and the CGL Policy. There is also no genuine issue of material fact that the Plaintiff is not entitled to a declaration that it has no coverage obligations under the Cooper-Global Primary Policy and the Hennessy Policies. As a result, the Plaintiff’s Motion for Summary Judgment [Doc. 237] is GRANTED in part and DENIED in part, the Defendants Jessica Barnes and Joseph Best’s Cross Motion for Summary Judgment [Doc. 248] is GRANTED in part and DENIED in part, and the Defendant Cooper-Global Chauffeured Transportation, Inc.’s Cross Motion for Summary Judgment [Doc. [*33]  264] is GRANTED in part and DENIED in part. Because the Court has decided these motions without the need for oral argument, the pending motions for oral argument [Docs. 250 & 254] are DENIED as moot. The Clerk is directed to enter a final judgment in favor of the Plaintiff declaring that there is no coverage for the accident described in the Complaint with respect to the Cooper-Global Excess Policy and the CGL Policy.

SO ORDERED, this 14th day of July, 2022.

/s/ Thomas W. Thrash, Jr.

THOMAS W. THRASH, JR.

United States District Judge

1 “Auto” is broadly defined in the CGL Policy to include any “land motor vehicle . . . designed for travel on public roads. (Compl. Ex. 4, at 24.)

2 MCS-90 endorsements apply to motor carriers that transport property, while MCS-90B endorsements apply to motor carriers of passengers. Compare 49 C.F.R. § 387.7 with 49 C.F.R. § 387.31. Federal appellate courts have found that their MCS-90 precedents control their MCS-90B interpretations and vice versa. See, e.g., Canal Ins. Co. v. Coleman, 625 F.3d 244, 249 n.7 (5th Cir. 2010)

3 The Plaintiff’s briefing cites to Doc. 102 for this contention, but that docket entry is a motion to appear pro hac vice. Instead, the Court assumes that the Plaintiff intended to cite to Doc. 1-02, which is the Cooper-Global Primary Policy.

Lewis v. Wieber

Court of Appeal of Louisiana, Fourth Circuit

July 6, 2022, Decided

NO. 2021-CA-0476 CONSOLIDATED WITH: NO. 2021-CA-0477

Reporter

2022 La. App. LEXIS 1094 *; 2021-0476 (La.App. 4 Cir. 07/06/22); 2022 WL 2448246

RICO LEWIS AND KIM LEWIS VERSUS ERIN WIEBER, PROGRESSIVE DIRECT INSURANCE COMPANY, ACME TRUCK LINE, INC., AND XYZ INSURANCE COMPANY CONSOLIDATED WITH: ERIN WIEBER, WIFE OF/AND SCOTT WIEBER, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN MACKENZIE WIEBER AND AIDAN WIEBER, AND BRENNAN WIEBER VERSUS ACME TRUCK LINE, INC., RICO LEWIS, JR., HUDSON INSURANCE COMPANY, ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY

Notice: THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

Prior History:  [*1] APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2019-04835, DIVISION “M”. Honorable Paulette R. Irons, Judge.

Disposition: AFFIRMED.

Core Terms

workers’ compensation, settlement, parties, trial court, res judicata, employment status, civil suit, summary judgment, cause of action, doctrine of res judicata, subject matter, occurrence, asserts, damages, workers’ compensation benefits, injuries, summary judgment motion, time of an accident, final judgment, Truck, judgment of dismissal, mover, exclusive remedy, tort action, tort claim, passenger, insurer, pain

Case Summary

Overview

HOLDINGS: [1]-Plaintiff was precluded from asserting claims against defendant in tort when she entered into the court approved settlement because she made multiple assertions that she was in the course and scope of her employment at the time of the accident, she did not appeal the judgment of dismissal, and the Louisiana Workers’ Compensation Act was the exclusive remedy; [2]-The trial court did not err in determining that res judicata under La. Rev. Stat. Ann. § 13:4231(1) precluded plaintiff from asserting a claim in tort because the causes of action in the present tort action existed when the judgment of dismissal in the first litigation was issued and the parties were the same.

Outcome

Judgment affirmed.

LexisNexis® Headnotes

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > … > Summary Judgment > Summary Judgment Review > Standards of Review

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

HN1  Entitlement as Matter of Law, Appropriateness

The appellate court applies a de novo standard of review in examining a trial court’s ruling on summary judgment. Accordingly, the appellate court uses the same criteria that governs a trial court’s consideration of whether summary judgment is appropriate. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966(A)(3). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubts must be resolved in the opponent’s favor. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence.

Civil Procedure > … > Summary Judgment > Burdens of Proof > Absence of Essential Element

Civil Procedure > Judgments > Summary Judgment > Burdens of Proof

Civil Procedure > … > Summary Judgment > Burdens of Proof > Movant Persuasion & Proof

Civil Procedure > … > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

HN2  Burdens of Proof, Absence of Essential Element

La. Code Civ. Proc. Ann. art. 966(D)(1) governs the mover’s burden on a motion for summary judgment: The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

Workers’ Compensation & SSDI > Compensability > Arising Out of Employment

HN3  Standards of Review, Questions of Fact & Law

To recover in a workers’ compensation action, the claimant must establish personal injury by accident rising out of and in the course and scope of his employment. The determination of whether an injury occurred in the course and scope of employment is a mixed question of law and fact.

Business & Corporate Compliance > … > Workers’ Compensation & SSDI > Exclusivity > Employees & Employers

Workers’ Compensation & SSDI > Defenses > Exclusivity Provisions

HN4  Workers’ Compensation, Employees & Employers

In general, under the Louisiana Workers’ Compensation Act, an employee’s exclusive remedy against his employer is workers’ compensation benefits. La. Rev. Stat. Ann. § 23:1032(A).

Business & Corporate Compliance > … > Workers’ Compensation & SSDI > Exclusivity > Employees & Employers

Workers’ Compensation & SSDI > Remedies Under Other Laws > Common Law

Workers’ Compensation & SSDI > Defenses > Exclusivity Provisions

HN5  Workers’ Compensation, Employees & Employers

The Louisiana Supreme Court has explained Louisiana’s Workers’ Compensation Act as follows: Under the workers’ compensation law, the employee relinquishes his right to be made whole in a civil suit, while the employer cedes his available tort defenses. Generally speaking, the workers’ compensation regime represents a quid pro quo compromise of interests, whereby the employee receives an absolute right to recover limited benefits in exchange for the employer’s tort immunity.

Workers’ Compensation & SSDI > Exclusivity > Exceptions

HN6  Exclusivity, Exceptions

The Louisiana legislature intended La. Rev. Stat. Ann. § 23:1032 to exclude all non-intentional tort claims of an employee against an employer for injuries, including those that resulted from the conditions of the employer’s leased premises.

Workers’ Compensation & SSDI > Remedies Under Other Laws > Common Law

Workers’ Compensation & SSDI > Administrative Proceedings > Settlements

HN7  Remedies Under Other Laws, Common Law

As a matter of policy, to permit an employee to recover against her employer pursuant to Louisiana’s Workers’ Compensation Act by way of settlement, and then later dispute her employment status for the purpose of recovering additional damages in tort offers no incentive for employers to settle an employee’s workers’ compensation claim.

Business & Corporate Compliance > … > Workers’ Compensation & SSDI > Exclusivity > Employees & Employers

Workers’ Compensation & SSDI > Defenses > Exclusivity Provisions

HN8  Workers’ Compensation, Employees & Employers

The Louisiana Workers’ Compensation Act provides the exclusive remedy for an employee against her employer where the terms of the statute are met.

Civil Procedure > Judgments > Preclusion of Judgments > Res Judicata

HN9  Preclusion of Judgments, Res Judicata

In general, the doctrine of res judicata precludes re-litigation of claims and issues arising out of the same circumstances when there is a final judgment. The following elements must be satisfied to invoke the doctrine of res judicata and bar a second action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arise out of the transaction or occurrence that was the subject matter of the first litigation.

Civil Procedure > Judgments > Preclusion of Judgments > Res Judicata

HN10  Preclusion of Judgments, Res Judicata

Pursuant to La. Rev. Stat. Ann. § 13:4231(1), if the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. While ordinarily premised on a final judgment, the doctrine of res judicata also applies where there is a compromise or settlement of a disputed claim or matter that has been entered into between the parties. Thus, a compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised. La. Civ. Code Ann. art. 3080.

Civil Procedure > Judgments > Preclusion of Judgments > Res Judicata

HN11  Preclusion of Judgments, Res Judicata

The third requirement of res judicata is that the parties in both suits must be the same. There must be identity of parties in order to find the doctrine of res judicata will preclude a subsequent suit. This requirement does not mean that the parties must have the same physical identity, but that the parties must appear in the same capacities in both suits.

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review

HN12  Reviewability of Lower Court Decisions, Preservation for Review

The appellate court may consider an issue that is raised for the first time on appeal if its resolution is necessary to render a just, legal and proper judgment. The Official Revision Comments of La. Civ. Code Ann. art. 2164 also state that the appellate court has complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.

Civil Procedure > Judgments > Preclusion of Judgments > Res Judicata

Insurance Law > Liability & Performance Standards > Settlements > Policy Limits

HN13  Preclusion of Judgments, Res Judicata

The insured and the insurer not only share the same quality as parties, but in essence their identities are virtually merged into one, to the extent of the policy limits.

Civil Procedure > Judgments > Preclusion of Judgments > Res Judicata

HN14  Preclusion of Judgments, Res Judicata

In the context of res judicata, the inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. La. Rev. Stat. Ann. § 13:4231—Official Revision Comments (a) (1990).

Counsel: Michael C. Ginart, Jr., Joyce D. Young, Nicholas N.S. Cusimano, John C. Ginart, LAW OFFICES OF MICHAEL C. GINART, JR. & ASSOCIATES, Chalmette, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

S. Daniel Meeks, Laurence R. DeBuys, IV, Kristen E. Meeks, MEEKS & ASSOCIATES, LLC, Metairie, LA, COUNSEL FOR DEFENDANT/APPELLEE.

Judges: Court composed of Chief Judge Terri F. Love, Judge Edwin A. Lombard, Pro Tempore Judge Madeline Jasmine.

Opinion by: Madeline Jasmine

Opinion

[Pg 1] In this personal injury suit, plaintiff Kim Lewis (“Mrs. Lewis”) seeks appellate review of the trial court’s granting of summary judgment in favor of Defendant Acme Truck Line, Inc. (“Acme”).

On appeal, we find Mrs. Lewis’ workers’ compensation settlement was dispositive of her employment status at the time of the motor vehicle accident; thus, as an employee of Acme, Mrs. Lewis’ exclusive remedy against Acme was in workers’ compensation. Moreover, in that the doctrine of res judicata applies where there is a compromise or settlement, we find, for the reasons addressed herein, that Mrs. Lewis is barred from recovering against Acme in tort. [*2]  Accordingly, we affirm the trial court’s judgment granting summary judgment in favor of Acme.


FACTUAL BACKGROUND AND PROCEDURAL HISTORY

[Pg 2] On December 12, 2018, defendant Erin Wieber (“Ms. Wieber”) drove her vehicle into a tractor-trailer rig, driven by plaintiff Rico Lewis (“Mr. Lewis”) and in which Mr. Lewis’ wife, Mrs. Lewis, was a passenger. At the time of the incident, both Mr. and Mrs. Lewis were employed by Acme, and Acme leased the tractor-trailer owned by Mr. Lewis.

As a result of the accident, the Lewis’ claimed they suffered bodily injuries. In January 2019, the Lewises filed a workers’ compensation claim against Acme and its insurer, Continental Indemnity Company (“Continental”) for benefits for injuries they allegedly sustained in connection with the December 2018 accident. In May 2019, the Lewises filed a separate civil action, asserting negligent tort claims against Ms. Wieber and Acme.

During the pendency of the civil suit, in July 2019, a Joint Petition to Compromise Disputed Claim for Workers’ Compensation Benefits (“Petition to Compromise”) was filed in the workers’ compensation case on behalf of Mrs. Lewis1 , Acme, and its insurer Continental. In conjunction with [*3]  the Petition to Compromise, Mrs. Lewis executed a Receipt, Release and Indemnification Agreement (“Release”). Pursuant to the Petition to Compromise, Mrs. Lewis settled her workers’ compensation claim against Acme for $35,000.00 in exchange for a release of all claims against Acme. The workers’ compensation judge approved the compromise and settlement and entered a judgment of dismissal on [Pg 3] July 29, 2019, dismissing Mrs. Lewis’ claims with prejudice. Mrs. Lewis did not appeal the judgment of dismissal.

Thereafter, in November 2020, Acme filed a motion for summary judgment in the civil suit, alleging Mrs. Lewis’ tort claims should be dismissed because: (1) as an employee of Acme, Mrs. Lewis’ exclusive remedy against Acme was in workers’ compensation; and (2) the approved settlement in the workers’ compensation case (“the Settlement”) was dispositive of the issue of Mrs. Lewis’ employment status; therefore, res judicata barred Mrs. Lewis from pursuing a tort action against Acme. Mrs. Lewis filed an opposition, and in March 2021, a hearing was held on Acme’s motion for summary judgment. On April 14, 2021, the trial court granted summary judgment in favor of Acme and against Mrs. [*4]  Lewis.2 It is from this ruling, Mrs. Lewis seeks appellate review.


STANDARD OF REVIEW

HN1 We apply a de novo standard of review in examining a trial court’s ruling on summary judgment. Hare v. Paleo Data, Inc., 11-1034, p. 9 (La. App. 4 Cir. 4/4/12), 89 So.3d 380, 387. Accordingly, we use the same criteria that governs a trial court’s consideration of whether summary judgment is appropriate. Id. “[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “Factual inferences reasonably drawn from the evidence must be [Pg 4] construed in favor of the party opposing the motion and all doubts must be resolved in the opponent’s favor.” Fiveash v. Pat O’Brien’s Bar, Inc., 15-1230, p. 7 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 917 (quoting Quinn v. RISO Investments, Inc., 03-0903, p. 3 (La. App. 4 Cir. 3/3/04), 869 So.2d 922, 926). In “determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence.” Id. (quoting (quoting Quinn, 03-0903, p. 3-4, 869 So.2d at 926).

HN2 La. C.C.P. art. 966(D)(1) governs the mover’s burden on a motion for summary judgment:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him [*5]  to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Id.


DISCUSSION

Mrs. Lewis raises two assignments of error on appeal. First, she claims the trial court erred in finding that the Settlement in the workers’ compensation case is dispositive of her employment status at the time of the accident. Second, Mrs. Lewis avers that the trial court erred when it found res judicata barred her tort claim against Acme.


Effect of the Settlement

HN3 [Pg 5] “To recover in a workers’ compensation action, the claimant must establish ‘personal injury by accident rising out of and in the course and scope of his employment.'” Gibson v. Wal-Mart La., LLC, 20-0033, p. 2 (La. App. 4 Cir. 8/27/20), ___ So.3d ___, 2020 La. App. LEXIS 1278, 2020 WL 5078504, *5 (quoting Lenig v. Textron Mar. & Land Systems, 13-0579, p. 6 (La. App. 4 Cir. 8/7/13), 122 So.3d 1097, 1100). The determination of whether an injury occurred in the course and scope of employment is a mixed question of law and fact. J.C. on Behalf of N.C. v. St. Bernard Parish Sch. Bd., 21-0111, p. 12 (La. App. 4 Cir. 2/4/22), 336 So.3d 92, 100, writ denied, 22-00372 (La. 4/26/22),     So.3d    , 2022 La. LEXIS 906, 2022 WL 1222776.

In the workers’ compensation proceedings, Mrs. Lewis obtained [*6]  a settlement from Acme based on her admission that she was in the course of her employment at the time of the accident. In the instant civil suit, however, Mrs. Lewis takes the contrary position that at the time of the accident, she was not acting within the course of her employment with Acme, but merely accompanying her husband. Mrs. Lewis claims the trial court erroneously found her admissions in the workers’ compensation case dispositive of her employment status. In support of her claim, Mrs. Lewis directs this Court to Dye v. Ipik Door Co., Inc., 570 So.2d 477, 479 (La. App. 5th Cir. 1990) and Harris v. State ex rel. Dep’t of Pub. Safety & Corr., 05-2647 (La. App. 1 Cir. 11/3/06), 950 So.2d 795.

In Dye, the plaintiff received workers’ compensation benefits for injuries sustained after he was electrocuted while performing repair work on the defendant’s premises. Id., 570 So.2d at 478. The plaintiff also filed a suit for tort [Pg 6] damages relating to his injuries. Id. The trial court granted defendant’s motion for summary judgment, and on appeal, the Fifth Circuit reversed. The issue in Dye was whether the plaintiff’s acceptance of workers’ compensation benefits barred him from pursuing an action in tort.

Similarly, in Harris, the plaintiff, a respiratory therapist, began receiving workers’ compensation benefits after she was attacked in the hospital parking lot on her way to work. [*7]  Id., 05-2647, p. 3, 950 So.2d at 798. The plaintiff filed a civil suit, alleging intentional tort by the defendant inmate, who had escaped the hospital before he attacked her, and negligence on the part of other named defendants, including the Department of Public Safety and Corrections (“DPSC”). Id. Although the plaintiff received workers’ compensation benefits, she did not file suit against her employer pursuant to the Workers’ Compensation Act. DPSC moved for summary judgment, arguing that the plaintiff’s “exclusive mode of recovery” was in workers’ compensation, not tort litigation. Id.

Dye and Harris both held that acceptance of benefits does not constitute the recipient’s admission or confession of employment status at the time the recipient sustained injuries. Mrs. Lewis contends that Dye and Harris are applicable because the plaintiffs received workers’ compensation benefits and were also permitted to seek an action in tort for damages against the defendant who paid the benefits.

In granting Acme’s motion for summary judgment, the trial court disagreed with the assertion that Dye and Harris are analogous to the present matter. The [Pg 7] trial court noted that the issue in Dye and Harris involved the acceptance of workers’ compensation benefits, [*8]  not, as presented here, the full and final settlement of a workers’ compensation claim. We agree.

The present case is factually distinguishable from Dye and Harris. Unlike Mrs. Lewis, the plaintiffs in Dye and Harris did not file formal workers’ compensation claims against their employers in workers’ compensation court. The plaintiffs did not file pleadings, under oath, representing that he or she was in the course and scope of his or her employment at the time of their injuries. Moreover, they did not obtain a final judgment of dismissal approving a settlement of their workers’ compensation claims based on the plaintiffs’ status as employees of the defendants and being injured in the course of their employment.

Mrs. Lewis further asserts that determination of her employment status calls for a legal conclusion that the court must decide based on the facts of the case; therefore, any opinion Mrs. Lewis or Acme has relating to her employment status at the time of the accident is irrelevant. Because the parties settled the workers’ compensation claim, and the trial court found the Settlement dispositive of her employment status, Mrs. Lewis avers that no court has conducted a proper analysis to determine [*9]  whether she was in the course and scope of her employment at the time of the accident.3 According to Mrs. Lewis, had the trial court conducted the proper analysis, it would have found that she was not acting in the course and [Pg 8] scope of her employment at the time of the accident; and therefore, it would have also found summary judgment inappropriate.

Acme maintains, however, that the trial court did, in fact, conduct the proper legal analysis in that the trial court reviewed the evidence submitted on summary judgment and determined the issue of Mrs. Lewis’ employment status was res judicata. Acme asserts that the Petition for Compromise, the Release, and Mrs. Lewis’ Answers to Interrogatories establish that Mrs. Lewis “unequivocally” stated she was in the course and scope of her employment.

The Petition for Compromise stated that “[o]n December 12, 2018, while working within the course and scope of her employment with Acme Truck Line, Inc., [Mrs. Lewis] was a passenger in Rico Lewis’ vehicle.” In connection with the Petition for Compromise, Mrs. Lewis executed an affidavit certifying that all the facts alleged in the Petition to Compromise were true and correct to the best of her [*10]  knowledge, information, and belief. Similarly, the Release, which she also personally executed, states that “[Mrs. Lewis] acknowledges that she was working within the course and scope of her employment with Acme Truck Line, Inc. when the subject accident occurred….” In her Answers to Interrogatories, Mrs. Lewis indicated again that she was acting in the course and scope of her employment. Moreover, she detailed the duties she performed in connection with her employment. Mrs. Lewis stated, “[o]n December 12, 2018, [she] wrote up the paper work, helped secure the load, fueled the truck, and communicated with terminal 37. . . .” [Pg 9] Mrs. Lewis suggests that the multiple admissions she made as to her employment status are inconsequential. We disagree. Such a position not only ignores the multiple assertions made in the workers’ compensation proceedings upon which the Settlement was based, but it also ignores the express language of Louisiana’s Workers’ Compensation Act.

HN4 In general, under the Louisiana Workers’ Compensation Act, an employee’s exclusive remedy against his employer is workers’ compensation benefits. See La. R.S. 23:1032(A). Subsection (A)(1)(a) states:

Except for intentional acts provided for in Subsection [*11]  B, the rights and remedies herein granted to an employee… for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages…

La. R.S. 23:1032(A)(1)(emphasis added). The statute was amended in 1989, and added subsection (A)(1)(b), which provides that “[t]his exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.” HN5 La. R.S. 23:1032(A)(1)(b) The Louisiana Supreme Court explained Louisiana’s Workers’ Compensation Act as follows:

Under the workers’ compensation law, the employee relinquishes his right to be made whole in a civil suit, while the employer cedes his available tort defenses. Deshotel v. Guichard Operating Co., Inc., 03-3511 (La. 12/17/04), 916 So.2d 72, 77. Generally speaking, the workers’ compensation regime represents a quid pro quo compromise of interests, whereby “the employee receive[s] an absolute right to recover limited benefits in exchange for the employer’s tort immunity.” See Harris v. State, Dept. of Public Safety & Corrections, 05-2647 (La. App. 1 Cir. 11/3/06), 950 So.2d 795, 799, writ denied, 06-2817 (La. 3/9/07), 949 So. 2d 440.

[Pg 10] Benoit v. Turner Indus. Grp., L.L.C., 11-1130, p. 7 (La. 1/24/12), 85 So.3d 629, 634.

In this civil suit, Mrs. Lewis alleges that Acme was negligent and at fault for: (1) failing to provide a safe working environment; (2) failing to [*12]  adequately supervise and maintain its property; (3) failing to provide adequate policies and procedures for the safety of those on its property; (4) failing to follow the policies and procedures in place to provide for the safety of those on its property; and (5) any and all other acts of negligence that may be proven at trial. HN6 However, Louisiana courts have consistently held that the legislature intended La. R.S. 23:1032 “to exclude all non-intentional tort claims of an employee against an employer for injuries, including those that resulted from the conditions of the employer’s leased premises.” Sam v. Villavaso, unpub., (La. App. 4 Cir. /06), 943 So. 2d 1279, 2006 WL 6913029 *3 (emphasis added); See also Bates v. King, 04-1591 (La. App. 3 Cir. 4/6/05), 899 So.2d 202; Dufrene v. Ins. Co. of State of Pa., 01-47 (La. App. Cir. 5 Cir. 5/30/01), 790 So.2d 660; Martin v. Stone Container Corp., 31,544 (La. App. 2 Cir. 2/24/99), 729 So.2d 726; and Douglas v. Hillhaven Rest Home, Inc., 97-0596 (La. App. 1 Cir. 4/8/98), 709 So.2d 1079.

HN7 We further note that as a matter of policy, to permit an employee to recover against her employer pursuant to the workers’ compensation act by way of settlement, and then later dispute her employment status for the purpose of recovering additional damages in tort offers no incentive for employers to settle an [Pg 11] employee’s workers’ compensation claim. Additionally, such a scenario frustrates the legal efficacy of the law of compromise and settlement.

Mrs. Lewis avers that Acme relies on the Settlement to shield itself in this civil suit because whether she was in [*13]  the course and scope of her employment is a fact issue. She notes that Acme cannot produce any payroll records for the days prior to and including the date of the accident. She further claimed that she did not have a license to drive a tractor trailer, like the one involved in this accident. She alleges that she was simply a passenger on the date of the accident and did not help Mr. Lewis in any material way. Furthermore, Mr. Lewis was the only one paid for the trip.

Nevertheless, this case is distinguishable from the cases Mrs. Lewis cites. In Dye and Harris, there was no settlement or order approving settlement like in this case. Mrs. Lewis, while represented by counsel in the workers’ compensation proceedings, made multiple assertions that she was in the course and scope of her employment at the time of the accident. She acknowledged that she understood the Release she signed, and that by signing the Release she was waiving all claims she had or may have against Acme. Consequently, the workers’ compensation judge entered an order of approval and judgment of dismissal based on Mrs. Lewis’ statements as to her employment status and her acknowledgment that she understood the contents of the [*14]  Settlement and the legal effects of settling her workers’ compensation claim. The order of approval also included a reservation by Acme of its immunity defense pursuant to La. R.S. 23:1032, in the event Mrs. [Pg 12] Lewis sought remedies in tort. The July 29, 2019 judgment of dismissal, dismissed Mrs. Lewis’ claims with prejudice.

Mrs. Lewis did not appeal the judgment of dismissal, and therefore, it became a final, valid judgment. HN8 The Louisiana Workers’ Compensation Act provides the exclusive remedy for an employee against her employer where the terms of the statute are met. Pursuant to La. R.S. 23:1032, Mrs. Lewis’ remedy was limited to workers’ compensation. Thus, Mrs. Lewis was precluded from asserting claims against Acme in tort when she entered into the court approved settlement.

We find the trial court was correct to find Mrs. Lewis’ employment status was established pursuant to the Settlement in the workers’ compensation case.


The Doctrine of Res Judicata

Mrs. Lewis next contends that the trial court erred in finding that the doctrine of res judicata barred her tort claims against Acme. Specifically, Ms. Lewis argues that the doctrine of res judicata does not apply to her tort action because: (1) the parties [*15]  do not appear in the same capacities in both actions; and (2) the “thing demanded” is not the same.

HN9 “In general, the doctrine of res judicata precludes re-litigation of claims and issues arising out of the same circumstances when there is a final judgment.” R&N Ursuline Family Ltd. P’ship v. Pas a Vendre, LLC, 17-0646, p. 4 (La. App. 4 Cir 5/19/18), 294 So.3d 1, 3. The following elements must be satisfied to invoke the doctrine of res judicata and bar a second action:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit [Pg 13] existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arise out of the transaction or occurrence that was the subject matter of the first litigation.

Schiff v. Pollard, 16-0801, p. 9-10 (La. App. 4 Cir. 6/28/17), 222 So.3d 867, 875.

HN10 Pursuant to La. R.S. 13:4231(1), “[i]f the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.” This Court explained that “while ordinarily premised on a final judgment, the doctrine of res judicata also applies where there is a compromise or settlement of a disputed claim or matter that has been [*16]  entered into between the parties.” Joseph v. Huntington Ingalls Inc., 18-02061, p. 3 (La. 1/29/20), ___ So.3d ___, 2020 La. LEXIS 211, 2020 WL 499939, *3 (citing Ortego v. State, Dept. of Transp. and Development, 96-1322, p. 7 (La. 2/25/97), 689 So.2d 1358, 1363). Thus, “a compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.” La. C.C. art. 3080.

It is undisputed that the workers’ compensation order of approval and judgment of dismissal is a valid and final judgment. Therefore, we determine whether the remaining elements to invoke the doctrine of res judicata are met in this case.


Identity of Parties

HN11 The third requirement of res judicata is that the parties in both suits must be the same. There must be “identity of parties” in order to find the doctrine of res judicata will preclude a subsequent suit. Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d 1049, 1054. “This requirement does not mean that the [Pg 14] parties must have the same physical identity, but that the parties must appear in the same capacities in both suits.” Id.

In Burguieres, the testator’s children brought an action to annul a probated testament against the testator’s sister in her capacity as the executrix of her brother’s succession. Id., 02-1385, p. 11, 843 So.2d at 1055. The testator’s children later sued the testator’s sister and her husband for breach of fiduciary duties that occurred prior to the testator’s death and allegedly tortious acts committed as executrix. Id. The Louisiana Supreme [*17]  Court held that because the second suit involved the sister’s actions before the testator died, the second suit did not implicate her in her capacity as executrix of her brother’s succession. Id. “Because of this difference in capacities, there is a lack of identity of the parties between the two suits.” Id., 02-1385, p. 12, 843 So.2d at 1056.

Mrs. Lewis claims that res judicata does not apply because she did not sue Acme in the same capacity in the instant lawsuit as in the workers’ compensation case.4 Mrs. Lewis argues that she sued Acme as her employer in the workers’ compensation case. By contrast, she contends that she sued Acme, in this civil suit, for its failure to have adequate policies and procedures in place to provide for the safety of those on its property and its failure to adequately supervise and maintain its property. As previously mentioned, however, courts have routinely held that the legislature intended La. R.S. 23:1032 to limit the injured employee’s [Pg 15] remedy to workers’ compensation for all non-intentional tort claims against an employer, “including those that resulted from the conditions of the employer’s leased premises.” Sam, unpub., 943 So. 2d 1279, 2006 WL 6913029 *3.

A review of the Petition to Compromise and the Petition for [*18]  Damages demonstrate that Mrs. Lewis sued Acme in both actions in its individual capacity as a trucking company for its allegedly tortious actions and/or inactions committed on December 12, 2018.

Additionally, Mrs. Lewis asserts that the parties in the workers’ compensation case are different from those in the present civil suit. She states that in the workers’ compensation case she sued Acme’s workers’ compensation carrier, Continental; whereas, in her civil suit she sued Acme’s liability carrier, Hudson Insurance Company (“Hudson”). Mrs. Lewis claims there is no identity of parties because Hudson was not a party to the workers’ compensation suit.

This same argument was rejected by the appellate court in Roland v. Owens, 00-1846 (La. App. 5 Cir. 4/24/01), 786 So.2d 167. In Roland, the Fifth Circuit concluded that the insurer’s involvement stemmed from its relationship as the insurer of the defendant. Id., 00-1846, p. 5, 786 So.2d at 170. HN13[] The court in Roland held that “the insured and the insurer not only share the same quality as parties, but in essence their identities are virtually merged into one, to the extent of the policy limits.” Id. (quoting Arthur v. Zapata Haynie Corp., 95-956 (La. App. 3rd Cir. 1/22/97), 690 So.2d 86, 90). In this case, Acme and Hudson, as Acme’s liability carrier, “share the same quality as parties” for the purpose of res judicata. Therefore, we find [*19]  no merit to Mrs. Lewis’ argument that res judicata does not apply because Hudson was not a party to the workers’ compensation suit.

[Pg 16] The Second Action Asserts a Cause of Action Arising out of the Transaction or Occurrence which was the Subject Matter of the First Action

Finally, Mrs. Lewis claims res judicata does not apply because the damages sought in the workers’ compensation case are not the same as in the tort action. According to Mrs. Lewis, her workers’ compensation claim sought damages for medical expenses and loss of earnings, whereas in the tort action, she sought damages for past, present, and future physical and mental pain and suffering. Because workers’ compensation law does not allow plaintiffs to demand the same relief, Mrs. Lewis avers that the quality of her demands cannot be considered the same. In support, Mrs. Lewis relies on Dornak v. Lafayette Gen. Hosp., 399 So.2d 168 (La. 1981). Acme correctly notes that Mrs. Lewis’ reliance on Dornak is misplaced in that the proposition for which Mrs. Lewis cites Dornak is based on an earlier and outdated version of La. R.S. 13:4231. Therefore, Dornak has no bearing on the instant matter.

Prior to La. R.S. 13:4231‘s revision in 1990, a “second action would be barred by the defense of res judicata only when the plaintiff [sought] [*20]  the same relief based on the same cause or grounds.” See La. R.S. 13:4231—Official Revision Comments (a)(1990). This interpretation of res judicata was determined to be “too narrow to fully implement the purpose of res judicata which is to foster judicial efficiency and also to protect the defendant from multiple lawsuits.” Id.

La. R.S. 13:4231 was amended to eliminate the requirement that the relief demanded be the same. Burguieres, 02-1385, p. 7, 843 So.2d at 1053. Specifically, La. R.S. 13:4231 was amended to include “all causes of action…arising out of the transaction or occurrence that is the subject matter of the litigation.” See La. R.S. 13:4231. HN14[] The inquiry is “whether the second action [Pg 17] asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.” La. R.S. 13:4231—Official Revision Comments (a)(1990). The official comments further state:

For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.

Id.

In the Petition for Compromise that Mrs. Lewis filed in the workers’ compensation suit, Mrs. Lewis stated:

On December 12, [*21]  2018, while working within the course and scope of her employment with Acme Truck Line, Inc., Claimant was a passenger in Rico Lewis’ vehicle. As they were attempting to make a U-turn, their vehicle was struck by another vehicle. As a result of this collision, Claimant alleges she suffered injuries including headaches, neck pain, back pain, knee pain, and left shoulder pain.

Subsequently, Mrs. Lewis filed a civil suit, alleging she sustained injuries arising out of the same occurrence on December 12, 2018. In her Petition for Damages, Mrs. Lewis detailed the following:

On or about December 12, 2018, Petitioner RICO LEWIS, was driving an 18-wheeler tractor-trailer for ACME TRUCK LINE, INC. when he was turning onto private property. At the time, KIM LEWIS, was a passenger in the 18-wheeler tractor trailer. At or around the same time, Defendant ERIN WIEBER was driving northbound on Paris Road when suddenly and without warning she struck the 18-wheeler tractor-trailer containing RICO LEWIS and KIM LEWIS at a high rate of speed.

The December 12, 2018 accident is the subject matter of both Mrs. Lewis’ workers’ compensation suit and the subject matter of the present action in tort. Therefore, [*22]  the requirement that the cause of action asserted in Mrs. Lewis’ civil suit arise out of the same occurrence as the subject matter of her workers’ compensation suit has been met.

[Pg 18] The record reflects that the requirements of res judicata are satisfied in this case considering: the July 29, 2019 judgment is a valid and final judgment; the parties are the same; the causes of action asserted in the present tort action existed on July 29, 2019, when the workers’ compensation judge issued the judgment of dismissal in the first litigation filed by Mrs. Lewis; and the causes of action asserted in this litigation arose out of the same transaction or occurrence that was the subject of the workers’ compensation suit. Thus, we find the trial court did not err when it determined that res judicata precludes Mrs. Lewis from asserting a claim in tort.


DECREE

For the above reasons, we find the trial court properly granted Acme’s motion for summary judgment. Accordingly, we affirm the trial court’s granting of summary judgment as reflected in the April 14, 2021 judgment, as amended on April 21, 2022.5

AFFIRMED


End of Document

1 Although Mrs. Lewis states that the Petition to Compromise was entered into between Acme and both her and her husband, the record reflects that the compromise was entered into between Mrs. Lewis and Acme.

2 This Court ordered the trial court to amend its judgment because it lacked the necessary decretal language indicating the name of the party against whom the relief was awarded in addition to the relief that was awarded. The trial court signed an amended judgment on April 21, 2022, and filed proof of compliance with this Court on or about May 18, 2022.

3 To the extent Mrs. Lewis argues the workers’ compensation court erred in confirming the compromise and settlement of her workers’ compensation claim without conducting an independent analysis on the issue of her employment status, we find the issue is not properly before us. The workers’ compensation court entered a Judgment of Dismissal on July 29, 2019. Mrs. Lewis did not appeal the judgment and therefore, the judgment is final.

4 Acme argues that Mrs. Lewis never specifically argued in the trial court that res judicata does not apply because she sued Acme in different capacities; thus, Acme asserts that Mrs. Lewis is precluded from challenging the application of res judicata on appeal. HN12[] This Court has held, that “the appellate court may consider an issue that is raised for the first time on appeal if its resolution is necessary to render a just, legal and proper judgment.” Keeping Our Legacy Alive, Inc. v. Cent. St. Matthew United Church of Christ, 17-1060, p. 13 (La. App. 4 Cir. 10/31/18); 318 So.3d 130, 138 (internal quotation omitted). The Official Revision Comments of La. C.C. art. 2164 also state that “the appellate court has complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” Id., 17-1060, p. 14, 318 So.3d at 138-39 (internal quotation omitted).

5 Supra, footnote 2.

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