Wehmeyer v. A T & T Corp

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

BRANDON WEHMEYER CASE NO. 6:21-CV-01163

VERSUS JUDGE ROBERT R. SUMMERHAYS

AT & T CORP ET AL MAGISTRATE JUDGE DAVID J. AYO

MEMORANDUM RULING

Presently before the Court is the Motion for Summary Judgment [ECF No. 51] filed by

defendant Standard Wireless Group, LLC (“Standard Wireless”). Piaintiff Brandon Wehmeyer

opposes the Motion. A hearing on the matter was held on July 26, 2023.

BACKGROUND

Wehmeyer was employed as a cell phone tower maintenance technician/rigger and alleges

that he was injured while performing maintenance work on a cell tower in Ville Plate, Louisiana,

on October 17, 2019.' Wehmeyer alleges that he was “struck repeatedly by the load line cable due

to a rigging failure caused by the negligence of one or more defendants,” including Standard

Wireless.? Wehmeyer alleges that he suffered physical injuries from the rigging failure, including

broken bones in his hip and pelvis, extensive facial fractures, a closed head injury, cuts and skin

abrasions, and injuries to his neck and back.? On October 13, 2020, Wehmeyer commenced this

case in 13th Judicial District Court, Evangeline Parish, Louisiana.4 Zurich American Insurance

Company of Illinois (“Zurich”) filed a Petition for Intervention on October 15, 2020.5 In the

Petition for Intervention, Zurich alleges that it issued a workers’ compensation insurance policy to

1 ECF No. 1-1 at 8 (Petition) at JJ 1, 3-4.

2 Ed.

3 Id. at

4 Id.

> ECF Doc. 1-1 at 19 (Petition for Intervention).

Standard Wireless and that Wehmeyer was employed by Standard Wireless on the date of the

_ subject accident.® Zurich claims that it paid indemnity and medical benefits to and on behalf □□

Wehmeyer arising from the subject accident and pursuant to the Louisiana Workers’

Compensation Act.’

Wehmeyer filed a workers’ compensation claim-—-the Disputed Claim for Compensation

Form (“Form 1008”}—on May 5, 2020, with the Louisiana Office of Workers Compensation. In

the present case, Wehmeyer alleges that he was performing contract work at the time of his injuries

and was not employed by Standard Wireless.* In his Form 1008, however, he identified Standard

Wireless as his employer.? Wehmeyer’s Form 1008 mirrors the allegations in the present case. It

states that he was injured on October 17, 2019!°—the same date alleged in the present case—and

alleges the same facts underpinning the claims in the present case: “[w]hile in the course and scope

of his employment with the Employer, the Injured Employee suffered injuries to his face, left hip,

and left wrist after he was crushed between a wire and a tower.”!' Standard Wireless contends that

Wehmeyer’s workers’ compensation claim is based on the same accident and injuries at issue here.

The case was subsequently removed to this court pursuant to 28 U.S.C. § 1441 based on

diversity jurisdiction under 28 U.S.C. § 1332 on April 30, 2021. Wehmeyer settled the workers’

compensation claim on February 11, 2022, and the parties executed a written settlement

agreement.!* The release in the settlement agreement states that:

[Brandon Wehmeyer] forever releases and discharges Standard Wireless Group and

Zurich American Insurance Company... from any and all past, present, and future

claims... and any and all causes and rights of action whatsoever which he may or

might have under... tort laws, and any and all other laws whatsoever, in any way

6 id. at 94.

7 5.

§ See Exhibit A (Affidavit of Brandon Wehmeyer) attached to ECF No. 29.

? ECF Doc. 51 at 1 (Exhibit B, Disputed Claim for Compensation Form Filed with the Office of Workers’

Compensation on Behalf of Brandon Wehmeyer).

10 Fe.

_ | ECF No. 51, Exhibit C, Notarized Settlement Release, dated February 11, 2022. .

resulting from the injuries claimed by Brandon Wehmeyer and any and all other

accidents, incidents or injuries sustained by Brandon Wehmeyer in the past arising

out of or occurring in the course of his employment with Standard Wireless

Group.'8

The release in the settlement agreement further states that Wehmeyer “declares and acknowledges

that he fully understands all of his possible rights and remedies and that this instrument constitutes

a full, final and complete release of Standard Wireless Group and Zurich American Insurance

Company from any and all claims arising out of the aforesaid accident and injuries, and that he has

executed this release freely and without duress, economic or otherwise.” In light of the settlement

and release, Judge Anthony Palermo of the Louisiana Office of Workers’ Compensation entered

an order dismissing the workers’ compensation case on March 8, 2022.) Judge Palermo ordered

that the matter “be dismissed, with full prejudice to the rights of Brandon Wehmeyer.”!® Standard

Wireless filed the present Motion for Summary Judgment, arguing that all claims against Standard

Wireless in the instant action are barred by the settlement and res judicata.

I.

SUMMARY JUDGMENT STANDARD

“A party may move for summary judgment, identifying each claim or defense—or the part

of each claim or defense-on which summary judgment is sought.”!’ “The court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”!® “A genuine issue of material fact exists

when the evidence is such that a reasonable jury could return a verdict for the non-moving party.”

As summarized by the Fifth Circuit:

3 Id., at pp. 2-3.

14 Ta.

5 ECF No. 51-7.

16 Td.

17 Fed, R. Civ. P. 56(a).

18 Ta.

Quality Infusion Care, Inc. v. Health Care Service Corp., 628 F.3d 725, 728 (Sth Cir. 2010).

When seeking summary judgment, the movant bears the initial responsibility of

demonstrating the absence of an issue of material fact with respect to those issues

on which the movant bears the burden of proof at trial. However, where the

nonmovant bears the burden of proof at trial, the movant may merely point to an

absence of evidence, thus shifting to the non-movant the burden of demonstrating

by competent summary judgment proof that there is an issue of material fact

warranting trial.2°

When reviewing evidence in connection with a motion for summary judgment, “the court must

disregard all evidence favorable to the moving party that the jury is not required to believe, and

should give credence to the evidence favoring the nonmoving party as well as that evidence

supporting the moving party that is uncontradicted and wunimpeached.”*! “Credibility

determinations are not part of the summary judgment analysis.”*? Rule 56 “mandates the entry of

summary judgment... against a party who fails to make a showing sufficient to establish the

_ existence of an element essential to that party’s case, and on which that party will bear the burden

of proof.”

OF

LAW AND ANALYSIS

LSA-R.S. 23:1032 provides that, with the exception of intentional acts, workers’

compensation is the exclusive remedy available to an “employee or his dependent” for work-

related injuries and illnesses.* Accordingly, separate tort actions against employers grounded on

20 Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations omitted).

21 Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 373 (5th Cir.2001); see also Feist v. Louisiana, Dept. of Justice,

Office of the Atty. Gen., 730 F.3d 450, 452 (Sth Cir. 2013) (court must view all facts and evidence in the light most

favorable to the non-moving party).

22 Quorum Health Resources, L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 458 (Sth Cir. 2002).

71 Patrick v. Ridge, 394 F.3d 311, 315 (Sth Cir. 2004) (alterations in original) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

24 Specifically, the statute states:

[T]he rights and remedies herein granted to an employee or his dependent on account of an injury, or

compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be

exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or

exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing

or created in the future, expressly establishing same as available to such employee, his personal

representatives, dependents, or relations, as against his employer, or any principal or any officer, director,

work-related injuries are generally barred unless the injuries arose from intentional acts.?° In the

present case, Wehmeyer asserts tort claims against his employer, Standard Wireless, that are

grounded on work-related injuries he suffered in the scope and course of his employment as a cell

phone tower maintenance technician/rigger. These claims appear to fall squarely within LSA-R.S.

23;1032’s exclusivity provision. Indeed, Wehmeyer availed himself of this exclusive remedy by

filing a workers’ compensation claim and entering into a settlement agreement releasing Standard

Wireless. Under Louisiana law, Wehmeyer’s claims in the present case would be barred under

LSA-R.S. 23:1032 regardless of the parties’ release or the res judicata effect of Judge Palermo’s

order. But the parties have not raised or briefed the effect of LSA-R.S. 23:1032 on Wehmeyer’s

attempt to assert independent tort claims against Standard Wireless.”° Accordingly, the Court turns

to Standard Wireless’ argument that the settlement agreement and release bars Wehmeyer’s

claims.

stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or

disease [emphasis supplied].

23 See Blevins v. Time Saver Stores, Inc. (La.App. 5 Cir. 10/26/99),

26 Wehmeyer filed an affidavit in opposition to the present Motion for Summary Judgment. In that affidavit, Wehmeyer

states that he was never employed by Standard Wireless but was instead “self-employed.” ECF No. 60-2 at [f 1-6.

Wehmeyer is estopped from denying his employment relationship with Standard Wireless. Louisiana has adopted the

doctrine of judicial estoppel, which is “an equitable doctrine designed to protect the integrity of the judicial process

by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Miller v.

Conagra, Inc., 991 S0.2d 445, 452 (La. 9/8/08) (citing New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001)). There

are three requirements for the doctrine to apply: “(1) the party against whom judicial estoppel is sought has asserted a

legal position that is plainly inconsistent with a prior position; (2) a court accepted the prior position; and (3) the party

did not act inadvertently.” Gonsoutin v. Broussard, 353 So. 3d 1044, 1047 (La. App. 3 Cir. 12/14/22).

Here, Wehmeyer asserted a position in his workers’ compensation case—that his injuries occurred in the course and

scope of his employment with Standard Wireless—that is inconsistent with the position he is now taking in the present

case—that he was essentially an independent contractor. The workers’ compensation judge relied on that prior

representation in adopting Wehmeyer’s workers’ compensation settlement. And the evidence in the summary

judgment record does not show that Wehmeyer acted inadvertently. Specifically, Wehmeyer’s workers’ compensation

claim form states that his injuries occurred “[w]hile in the course and scope of his employment with [Standard

Wireless] ...” ECF No. 51-5. The settlement agreement—which Wehmeyer signed and notarized—stated that “he has

a claim against Standard Wireless Group and Zurich American Insurance Company for benefits under the Louisiana

workers’ compensation laws as a result of injuries that he allegedly sustained in the course and scope of his

employment with Standard Wireless Group, LLC.” ECF No. 51-6 (emphasis added). Finally, Wehmeyer accepted the

benefits of his workers compensation settlement. Even more troubling, he seeks to retain these benefits, yet escape

the restrictions of the release and continue with the present action seeking relief for the same work-related injuries.

Under the Louisiana Civil Code, “[a] compromise is a contract whereby the parties, through

concessions made by one or more of them, settle a dispute or an uncertainty concerning an

obligation or other legal relationship.””” Moreover, “[a] compromise shall be made in writing or

recited in open court, in which case the recitation shall be susceptible of being transcribed from

the record of the proceedings.” *® This “writing requirement aims at avoiding litigation over what

the terms of a settlement are.””° “The meaning and intent of the parties to a written instrument,

including a compromise, is ordinarily determined from the four corners of the instrument, and

extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms of the

instrument.”3° Here, the settlement agreement and release were memorialized in a written

document, signed and notarized by Wehmeyer.*! The release clearly identifies “Standard Wireless

Group and Zurich American Insurance Company” as the released parties, and defines the scope of

the release as “any and all causes and rights of action whatsoever which [Wehmeyer] may or

might have under... tort laws, and any and all other laws whatsoever... arising out of or occurring

in the course of his employment with Standard Wireless Group.” *? The language of this release is

not ambiguous and covers the claims at issue here.

Despite the unambiguous language of the release, Wehmeyer argues that he did not intend

to release the tort claims against Standard Wireless when he executed the workers’ compensation

settlement agreement and relies on a line of Louisiana cases creating an exception to the “four

comers” rule. In Brown v. Drillers, Inc.,33 the Louisiana Supreme Court discussed this exception:

The meaning and intent of the parties to a written instrument, including a

compromise, is ordinarily determined from the four corners of the instrument, and

27 La. Civ. Code Art. 3071.

8 La. Civ. Code Art. 3072.

Tucker v. Atterburg, 409 So.2d 320, 322 (La. App. 4 Cir. 1981).

3° Chalmette Retail Ctr., L.L.C. v. Lafayette Ins. Co., 21 So. 3d 485, 492 (La. App. 4 Cir, 10/16/09), writ denied, 31

So. 3d 392 (La. 4/9/10), and writ denied, 31 So. 3d 393 (La. 4/9/10).

31 ECF No. 51-6.

22 at pp. 2-3.

33 630 So.2d 741 (La. 1994).

extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms

of the instrument. Louisiana courts, however, have crafted a special exception to

the extrinsic evidence rule for compromise agreements based on an in pari materia

reading of LSA-C.C. Art. 3073's provision that a compromise extends only to those

differences the parties' clearly comprehended and LSA-C.C. Art. 3079's provision

that an error as to the subject matter in dispute is a ground to rescind a compromise.

Moak, supra stands for the proposition that when a dispute arises as to the scope of

a compromise agreement, extrinsic evidence can be considered to determine exactly

what differences the parties intended to settle. Following Moak, a long line of

jurisprudence holds that a general release will not necessarily bar recovery for those

aspects of a claim not intended by the parties to be covered by the release. Under

that jurisprudential rule, the parties to a release instrument are permitted to raise a

factual issue as to whether unequivocal language in the instrument was intended to

be unequivocal.

Louisiana courts, however, have tempered that jurisprudential rule, recognizing that

absent some substantiating evidence of mistaken intent, no reason exists to look

beyond the four corners of the instrument to ascertain intent. Utilizing a case-by-

case, factual analysis, Louisiana courts have limited the rule's application to cases

in which substantiating evidence is presented establishing either (1) that the

releasor was mistaken as to what he or she was signing, even though fraud was not

present; or (2) that the releasor did not fully understand the nature of the rights

being released or that the releasor did not intend to release certain aspects of his or

her claim. When the factual circumstances surrounding the execution of the release

instrument do not fall within either of the above categories, Louisiana courts,

applying LSA-C.C, Art. 2046's general rule of construction, have not hesitated to

confine their analysis to the four corners of the instrument. When, as in that

instance, a contract can be construed from the four corners of the instrument

without looking to extrinsic evidence, the question of contractual interpretation is

answered as a matter of law and thus summary judgment is appropriate.*4

Wehmeyer contends that he did not intend to release his tort claims against Standard Wireless

when he signed the workers’ compensation settlement and agreement despite the language of the

agreement releasing “any and all causes and rights of action whatsoever” against Standard

Wireless. The only evidence in the record in this regard is Wehmeyer’s affidavit stating that he did

not intend to release these claims.*> Specifically, Wehmeyer states that he filed two separate

actions against Standard Wireless—the workers’ compensation action and the present tort suit—

¥ at 748-749 (internal citations omitted) (emphasis added).

ECF No. 60-2.

and that “[i]t was his understanding that this settlement only resolved his workers’ compensation

claim, and not his negligence/tort claims for which he is being represented” by counsel in the

present case.°° He further states that he was represented by separate counsel in the workers’

compensation case, but that “he was never advised ... that the workers compensation settlement

... would result in the release of any claims he might have against Standard Wireless” in the present

case.°’ On the other hand, Wehmeyer does not state that counsel provided advice or other

information that led him to believe that the settlement did not include the claims in the present

case. Nor does he state any facts providing “substantiating evidence” of his intent or that he was

mistaken about the scope of the workers’ compensation settlement and release.

Wehmeyer’s affidavit testifying as to his state of mind is self-serving and unsupported.

“TA]n affidavit based on personal knowledge and containing factual assertions suffices to create a

fact issue even if the affidavit is arguably self-serving.”>® However, a party’s self-serving and

unsupported affidavit testifying as to that party’s state of mind will generally not defeat summary

judgment where the evidence in the record is to the contrary.?” Here, Wehmeyer offers no facts to

support his conclusory statement that he did not understand the scope of the settlement agreement

and release. Moreover, the summary judgment record contradicts Wehmeyer’s affidavit. The

language of the release—which Wehmeyer signed or notarized-—-makes no distinction between

Wehmeyer’s workers’ compensation claims against Standard Wireless and the claims against

Standard Wireless asserted in the present case.*? The broad language of the release encompasses

6 Id at LI.

1 Id 11.

38 Pittman Const. Co, v. National Fire Ins. Co. of Hartford, 453 Fed. Appx. 443 (5th Cir. Oct. 24, 2011).

3 See In re Hinsley, 201 F.3d 638, 643 (5th Cir. 2000) (‘A party's self-serving and unsupported statement that she

lacked the requisite intent is not sufficient to defeat summary judgment where the evidence otherwise supports a

finding of fraud.”).

40 Nor could it make this distinction under LSA-R.S. 23:1032, which bars Wehmeyer from asserting work-related tort

claims against his employer outside the workers compensation system. To the extent that Wehmeyer asserts the

defense of mistake, he is really claiming a mistake of law—that he can assert (and receive) worker compensation and

the claims asserted against Standard Wireless in the present case. Wehmeyer acknowledged “that

he fully understands all of his possible rights and remedies and that this instrument constitutes a □

full, final and complete release of Standard Wireless Group and Zurich American Insurance

Company from any and all claims arising out of the aforesaid accident and injuries, and that he has

executed this release freely and without duress, economic or otherwise.”*! Critically, Wehmeyer

was represented by counsel in connection with the workers’ compensation settlement.*? In sum,

the summary judgment record does not create a genuine issue of material fact as to the exceptions

set forth in Brown v. Drillers, Inc.. Accordingly, the Court grants Standard Wireless’ Motion for

Summary Judgment.

IV.

CONCLUSION

For the reasons stated herein, the Motion for Summary Judgment [ECF No. 51] is

GRANTED and all claims asserted by Wehmeyer against Standard Wireless are DISMISSED.

THUS DONE in Chambers on this 21st day of August, 2023.

ooo

<i

AV * (>

ROBERT R. SUMMERHA

UNITED STATES DISTRICT JUD

still pursue tort claims against his employer despite the exclusivity provisions of LSA-R.S. 23:1032. A mistake of law

is not grounds to avoid the terms of a contract.

41 id

ECF No. 60-2 at □□