# Vidrine v. Michigan Millers Mutual Insurance Co. > Supreme Court of Louisiana · October 4, 1972 · 263 La. 300 URL: https://www.frixlaw.com/law-library/cases/9689851 ## Case - **Full name:** Theodule VIDRINE, Plaintiff, Ashy Construction Company, Intervenor-Appellant-Respondent, v. MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, Defendant-Appellee-Relator - **Court:** Supreme Court of Louisiana - **Decided:** October 4, 1972 - **Citations:** 263 La. 300; 268 So. 2d 233; 1972 La. LEXIS 5403 - **Precedential status:** Published - **Opinion:** On rehearing by McCALEB - **Judges:** Hamlin, Barham, McCaleb, Tate, Dixon - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9689851 ## Opinion text ON REHEARING McCALEB, Chief Justice. Theodule Vidrine was injured while in the course and scope of his employment with the Ashy Construction Company. He was a passenger in a company truck driven by a co-employee, Joseph Cormier, when it collided with an automobile which was being driven by Dorothy Hardy (a.jminor) and insured by Michigan, Millers Mutual. Insurance Company. Vidrine brought a tort action against the. minor’s father and Michigan. Ashy inter-, vened claiming reimbursement from the,. defendants for the amounts. it had paid Vidrine on account of workmen’s compensation benefits due to him. Vidrine ultimately withdrew his suit, and the litigation has continued only as between Ashy (for the compensation payments) and the defendants. In the lower courts it was determined that the accident occurred as the result of the concurrent negligence of both Miss Hardy and Ashy’s employee, Cormier,’ and that Vidrine was not negligent. *332 The sole question for our determination bn the initial hearing in this Court, and now, is whether the negligence of Cormier, attributable to his employer (Ashy), prevents the latter from recovering against the third-party joint tortfeasor (Hardy) and his insurer, the compensation payments made by it to its non-negligent employee Vidrinc. Stated another way, the issue is whether an employer may recover such compensation benefits from a third-party tortfeasor, under the provisions of R.S. 23:1101-1103, if he himself is guilty of negligence which contributed to the accident causing the non-ncgligent employee’s injury. On the original hearing we held that he could not. We now reverse and hold that the negligence of the employer does not bar his right to recover such compensation payments from a third-party joint tortfeasor. Our conclusion is based on the clear and unequivocal language of R.S. 23:1101 and 1103 which read as follows: § 1101. “When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury. “Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.” (Emphasis added) § 1103. “In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured em *334 ployce ox- his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment. “No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him. As amended Acts 1958, No. 109, § 1.” (Emphasis added.) These provisions clearly permit recovery by any employer of the compensation payments made or due by him, and evidence an intent that in on case shall the employee be permitted dual recovery for his injuries, that is, recovery both from the tortfeasor in full and, in addition, from his employer in compensation. Indeed, in the original statute, if an employee availed himself of his right to compensation, only the employer had the right to bring action against the tortfeasor both for the payments made by him, and for any additional amounts due to the employee. An amendment in 1920 permitted either to bring the- action, and allowed the other to join to urge his claim. As shown in Chauvin v. Louisiana Power & Light Co., 177 La. 193 , 148 So. 23 , “The only material difference between the old law and the new is that under the old law the right to collect the damage had to be exercised through the employer, the subrogee of the claim, whereas, under the law as amended, the right may be exercised by the injured employee personally.” (Emphasis added.) In neither of the above quoted sections is there any suggestion that the right to recover compensation actually paid or due is limited to those employers who are blameless, or innocent of any action which might have caused the injury. Furthermore, nothing in the sections creates a classification of employers into those who are at fault and those who are not. Any attempt by this Court to create such a classification would amount to judicial statutory amendment. As we said in Board of Commissioners of Port of New Orleans v. City of New Orleans, 223 La. 199 , 65 So.2d 313 , “ * * * the compensation statute specifically grants to the employer * * * the right to bring suit against the third person tort-feasor to recover any amount zvhich he has paid or has become obligated to pay as compensation to the dependent. The employer, in other words, is unqualifiedly authorised to assert, to the extent of obtaining indemnification for the compensation for which he is obligated to pay, the cause of action that arose originally in favor of the employee from the third person’s actionable negligence.” This language as italicized was quoted with approval in Thomas v. Matthews Lumber Company of Mansfield, 253 La. 1 , 215 So.2d 832 . *336 As .heretofore shown in the dissenting opinion of Justice Barham handed down on the original hearing, “Our state courts and the federal courts have apparently believed that City of Shreveport v. Southwestern Gas & Electric Co., 145 La. 680 , 82 So. 785 , was authority in Louisiana for the view that concurrent negligence imputed to the employer was not a bar to recovery from a third party. Day v. National-U. S. Radiator Corporation, 117 So.2d 104 (La.App. 1st Cir. 1960), reversed on other grounds, 241 La. 288, 128 So.2d 660 ; Andrus v. Great American Insurance Company, 161 So.2d 113 (La.App. 3rd Cir. 1964), writs refused. See also International Paper Co. v. Arkansas & Louisiana Missouri Ry. Co., 35 So.2d 769 (La.App. 2nd Cir. 1948); United Gas Corp. v. Guillory, supra [ 206 F.2d 49 (La. 5th Cir. 1953)], and General Electric Co. v. Cuban American Nickel Co., supra [ 396 F.2d 89 (La. 5th Cir. 1968)].” The- legislature has never amended the statute to-effect an overruling of this jurisprudence. As we read the original majority opinion, that holding is not based on the language of the statute or on our jurisprudence, but, instead, on concepts of equity and/or socioeconomic reasons. 1 If the views expressed are valid, a change in the 3aw,is essential so as to have it comport therewith.,. But this is not a matter for the Court; it addresses itself solely to the legislative department of our government. From time to time the courts of,this State have referred in various ways to the right conferred by the statute. Some of the earlier cases call it a “right of subrogation” but in Board of Commissioners of Port of New' Orleans v. City of New Orleans, supra, this Court held that it is'nOt, properly speaking, a subrogation. At other time's in the opinions it has been called a “right of indemnification” or “reimbursement.” Some State and Federal appellate opinion's have referred to it as “a kihd of subrogation” or “in the nature of a legal subrogation .” 2 But it matters not by what name the right is called — whether it be a subro *338 gation,' in the nature of a subrogation, ’or' a right of reimbursement, Or whatever— the ■ right is an absolute one' and ' is not limited by the statute. For the reasons assigned, the opinion of the Court of Appeal for the Third Circuit is reinstated and made the judgment of this Court. . For example, it was suggested that under the circumstances of this particular ,,-.case the right of the negligent employer to be reimbursed for compensation payments might be considered as a “wind- . . fall,” But this gives no consideration to the fact that there are numerous other Cases in which a non-negligent employer is- prohibited from seeking reimbursement for compensation payments from a tort feasor because of the negligence of themployee who was paid the compensation. The facts of these varying circumstances '• ' -are matters- that should be and presumably have been weighed by the legislatu^-e and, until such time as a change is effected by that body, regardless of our views of equity and justice, we are obliged to apply the unequivocal and unambigur bus language of the statute as now writ-fete ' . See American Universal Ins. Co. v. Chauvin, 329 F.2d 174 (5 Cir., 1964); Day v. National-U. S. Radiator Corp., 117 So.2d 104 (La.App., 1959); United Gas Corp. v. Guillory, 206 F.2d 49 (5 Cir., 1953); Todd-Johnson Dry Docks v. City of New Orleans, 55 So.2d 650 (La App., 1951) International Paper Co. v. Ark. & *338 La. M. R. Co., 35 So.2d 769 (La.App., and Lowe v. Morgan’s La. & T. R. & S. S. Co., 150 La. 29 , 90 So. 429 (1921). The author of this opinion is committed .to the view that this is a legal'subrogation. . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9689851. Public record. Not legal advice.