The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CA 17-1176 consolidated with CA 17-1177
ANNIQUE JOHNSON, ET AL.
VERSUS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, ET AL.
**********
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 125743 C/W 125744
HONORABLE VINCENT JOSEPH BORNE, DISTRICT JUDGE
**********
BILLY HOWARD EZELL
JUDGE
**********
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and John E. Conery,
Judges.
AFFIRMED.
Terry L. Rowe
Attorney at Law
P. O. Box 3323
Lafayette, LA 70502
(337) 232-4744
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Ins. Co.
Andrew B. Mims
David C. Laborde
Derrick G. Earles
Jeff D. Easley
Laborde Earles Law Firm, LLC
P. O. Box 80098
Lafayette, LA 70598-0098
(337) 261-2617
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Annique Johnson
Wanda Theriot
EZELL, Judge.
In this matter, Annique Johnson and Wanda Theriot appeal the decision of
the trial court below granting summary judgment in favor of State Farm Mutual
Automobile Insurance Company. For the following reasons, we hereby affirm the
decision of the trial court.
There exists no dispute concerning the basic facts involved in this appeal.
This litigation arises from an auto accident which occurred on April 5, 2014, near
Delcambre, Louisiana. Ms. Johnson and Ms. Theriot (herein after collectively
referred to as “Plaintiffs”) were passengers in a vehicle driven by their co-worker,
Emily Laseter, when Ms. Laseter failed to stop or yield to a vehicle on a superior
roadway. The Plaintiffs sustained personal injuries as a result of the accident. All
three women were employees of Le Bon Manger, Inc., and at the time of the
accident, all were acting in the course and scope of their employment. This is
undisputed. Both Plaintiffs filed claims for workers’ compensation benefits, and
both eventually settled their workers’ compensation claims.
Asserting that Ms. Laseter’s negligence was the sole cause of the accident
and their resulting injuries, the Plaintiffs filed the current tort suit against her, Le
Bon Manger, Inc., its owner, Bobby Breaux, and State Farm, both as the liability
and UM carrier for Le Bon Manger, but also as the personal UM carrier for each of
the plaintiffs via separate policies. The Plaintiffs later dismissed all defendants
except for State Farm. State Farm then filed a motion for summary judgment
asserting that the UM policies in question provided no coverage, as the sole
remedies available for the Plaintiffs were claims under workers’ compensation law.
The trial court agreed, granted the motion for summary judgment, and
subsequently dismissed the Plaintiffs’ claims. From that decision, the Plaintiffs
appeal.
On appeal, Plaintiffs assert one assignment of error, claiming only that the
trial court erred in granting State Farm’s motion for summary judgment. We
disagree.
“Appellate courts review summary judgments de novo, using the same
criteria that govern the district court’s consideration of whether summary judgment
is appropriate.” Greemon v. City of Bossier City, 10-2828, 11-39, p. 6 (La. 7/1/11),
65 So.3d 1263, 1267. A summary judgment “shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.”
La.Code Civ.P. art. 966(A)(3). “The only documents that may be filed in support
of or in opposition to the motion are pleadings, memoranda, affidavits, depositions,
answers to interrogatories, certified medical records, written stipulations, and
admissions.” La.Code Civ.P. art. 966(A)(4). “The burden of proof rests with the
mover.” La.Code Civ.P. art. 966(D)(1). If the mover will not bear the burden of
proof at trial on the matter at issue, however, his burden on the motion for
summary judgment “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.” Id. Specifically, “[t]he 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.
The sole issue in this appeal is whether employees may recover tort damages
from UM insurers for injuries sustained while in the course and scope of their
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employment, in a motor vehicle accident caused by the negligence of a co-
employee. Based on the clear jurisprudence of this court, we reaffirm that they
may not.
The Plaintiffs claim that State Farm is a “third person” who is not subject to
workers’ compensation immunity under UM statutes, citing Travelers Ins. Co. v.
Joseph, 95-200 (La. 6/30/95), 656 So.2d 1000, for this proposition. This exact
issue was before an en banc panel of this court in an incredibly similar case,
Hebert v. Clarendon Am. Ins. Co., 07-992, pp. 4-7 (La. App. 3 Cir. 6/4/08), 984
So.2d 952, 955–57, writ denied, 08-1508 (La. 11/10/08), 996 So.2d 1068
(emphasis ours) (first alteration in original) where we stated:
It has long and consistently been held that the tort immunity defense
is a general defense, and may be invoked by the tortfeasor’s
liability insurer or the injured party’s UM insurer. See Bolton v.
Tulane Univ. of La., 96–1246 (La.App. 4 Cir. 1/29/97), 692 So.2d
1113, writ denied, 97–1229 (La.9/26/97), 701 So.2d 982; Lee v.
Allstate Ins. Co., 467 So.2d 44 (La.App. 4 Cir.), writ denied, 472
So.2d 593 (La.1985); Davis v. Allstate Ins. Co., 452 So.2d 310
(La.App. 2 Cir.), writ denied, 457 So.2d 1194 (La.1984); Mayfield v.
Cas. Reciprocal Exch., 442 So.2d 894 (La.App. 3 Cir.1983), writ
denied, 445 So.2d 1230 (La.1984); Braud v. Dixie Mach. Welding &
Metal Works, Inc., 423 So.2d 1243 (La.App. 5 Cir.1982), writ denied,
430 So.2d 77 (La.1983); Fox v. Commercial Union Ins. Co., 413
So.2d 679 (La.App. 3 Cir.1982); Gray v. Margot, Inc., 408 So.2d 436
(La.App. 1 Cir.1981); and Carlisle v. State Through DOTD, 400
So.2d 284 (La.App. 3 Cir.), writ denied, 404 So.2d 1256 (La.1981).
In Carlisle, the plaintiff sustained personal injuries as a guest
passenger in a fellow employee’s vehicle involved in an accident and
sought recovery against, among others, two UM carriers. This court
concluded that the plaintiff had no cause of action against the UM
carriers because “[u]insured motorist coverage is contingent upon
there being liability by an uninsured or underinsured motorist,” and
because the plaintiff had no cause of action against the fellow
employee due to the statutory immunity provided by La.R.S. 23:1032,
he had no cause of action against the UM carriers. Id. at 287. Citing
the fourth circuit decision in Bolton, 692 So.2d 1113, this court
followed the same reasoning set forth in Carlisle in Sunda v. United
Serv. Auto. Ass’n, 00–1425 (La.App. 3 Cir. 5/23/01), 787 So.2d 553,
writ denied, 01–1835 (La.10/26/01), 799 So.2d 1142.
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Thus, it is well settled in our jurisprudence that where there is
no underlying uninsured or underinsured person from whom the
plaintiff is legally entitled to recover, due to the immunity provision
of La.R.S. 23:1032, the plaintiff’s UM insurer is not legally liable to
him. That being the case, we decline to ignore the established law and
grant Ms. Hebert the relief she requests on this basis.
Ms. Hebert also asserts that, notwithstanding the established
jurisprudence unfavorable to her, Western World is an exception to
that jurisprudence in that it is a “third person” liable to her under the
supreme court holding in Travelers, 656 So.2d 1000. This approach is
viable, she argues, because of the language in Travelers holding that
in some situations an employers’[] UM insurer is a third person
legally liable to pay an employee damages arising from a work-related
accident. We find no merit in this argument as it misapplies Travelers.
The Travelers decision involves application of La.R.S. 23:1101.
That particular statute addresses the rights of an injured employee and
the party responsible for paying workers’ compensation benefits
arising from that injury to recover their respective losses. Louisiana
Revised Statute[s] 23:1101(A) specifically provides that the payment
of workers’ compensation benefits does not affect an injured
employee’s right to recover damages from a third person causing the
injury giving rise to the benefit payments. Additionally, La.R.S.
23:1101(B) provides that one who has paid workers’ compensation
benefits, or has become obligated to pay such benefits, to an injured
employee may bring suit against a third person who caused the injury
to recover for the benefits paid or to be paid. See also, Landry v.
Martin Mills, Inc., 98–1395 (La.App. 3 Cir. 3/3/99), 737 So.2d 58,
writ denied, 99–957 (La.6/4/99), 744 So.2d 625.
A “third person” for the purpose of this statute is defined in
La.R.S. 23:1101(A) as a person who has “a legal liability to pay
damages” to the injured worker. Specifically excluded from that
definition is “those persons against whom the said employee’s rights
and remedies are limited in R.S. 23:1032.” Id. In Travelers Ins. Co.,
656 So.2d 1000, the supreme court was called upon to determine if the
workers’ compensation carrier could recover from the employer’s UM
carrier workers’ compensation benefits paid to a covered employee
injured in an automobile accident. The employee had been injured by
an uninsured/underinsured motorist who was not a fellow employee.
The supreme court concluded that, absent an express exclusion in the
UM policy issued to the employer, the UM carrier was a “third
person” under the definition of La.R.S. 23:1101, and the workers’
compensation carrier could recover the benefits paid to the injured
employee from the UM carrier.
The significant distinction between the facts of our present case
and the facts in Travelers is that the uninsured motorist in Travelers
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was a third person, while in our present case Mr. Begnaud is a co-
employee. The uninsured motorist in our present case has an
immunity that the uninsured motorist in Travelers did not have. This
distinction is clear from the following language in Johnson v.
Fireman’s Fund Ins. Co., 425 So.2d 224 (La.1982), a decision
addressed in the Travelers opinion:
Because the employer is entitled to proceed against
a “third person” for reimbursement for compensation
paid, it is important to ascertain who is a “third person”
for these purposes. The worker compensation statute
provides that when an employee’s work-related injury
creates a legal liability to pay damages in some person,
other than those listed in La.R.S. 23:1032, that person is
a “third person.” La.R.S. 23:1101. The parties excluded
from the category of third persons by reference to La.R.S.
23:1032 are those persons against whom compensation is
the employee’s exclusive remedy, such as the claimant’s
employer, co-employees, principal, principal’s employer,
partner, or employee of such employer, director of
stockholders of employer or principal. See La.R.S.
23:1032. Accordingly, a “third person” is anyone who is
legally liable to pay an employee damages because of his
injury who is not included within the list of
classifications provided by La.R.S. 32:1032. Such a
“third person” is amenable to suit by the employer’s
worker compensation insurer by virtue of the insurer’s
statutory subrogation to all rights and actions to which
the employer is entitled. La.R.S. 23:1162.
Johnson, 425 So.2d at 227[.]
As was the case in Travelers, in Johnson neither the uninsured
motorist carrier for the employer nor for the injured employee came
within the classifications of La.R.S. 23:1032. Thus, they did not
qualify as “third persons” because they were not legally liable to pay
the employee damages because of his work-related automobile
accident.
As noted above, Hebert, 984 So.2d 952, was issued by an en banc panel of
this court and is the controlling law of this circuit. In the light of the well-settled
law discussed above, because the Plaintiffs could not recover tort damages against
Ms. Laseter as a co-employee due to the statutory immunity provided by La.R.S.
23:1032, they may not recover against State Farm as their UM carrier. State Farm
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is clearly entitled to judgment as a matter of law in this matter. The summary
judgment was properly granted by the trial court below, and Plaintiffs’ suits to
recover tort damages from State Farm was properly dismissed with prejudice.
For the above reasons, we hereby affirm the decision of the trial court.
Costs of this appeal are hereby assessed against Plaintiffs.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2-16.3.
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