# Wright v. National Surety Corp.

> Supreme Court of Louisiana · April 28, 1952 · 221 La. 486

URL: https://www.frixlaw.com/law-library/cases/9857980

## Case

- **Full name:** WRIGHT v. NATIONAL SURETY CORP. Et Al.
- **Court:** Supreme Court of Louisiana
- **Decided:** April 28, 1952
- **Citations:** 221 La. 486; 59 So. 2d 695; 1952 La. LEXIS 1221
- **Precedential status:** Published
- **Opinion:** Concurring in part
- **Judges:** McCaleb, Blanc, Hamiter
- **Cited by:** 104 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/9857980

## How later opinions describe it (automated extraction)

- holding that the application of La.Rev.Stat. 22:658 to an insurance policy entered into before the statute did not impair the contract even though it imposed penalties for late payment of claims

## Opinion text

(concurring in part and dissenting in part).
I am in accord with the holding in the majority opinion that the plaintiff in this case is entitled to recover as for total permanent disability but not with the holding that he is entitled to recover the penalty and the attorney’s fees provided for in the Insurance Code, LSA-R.S. 22:658.
I am of the opinion that the statute referred to intended to include any type of insurance issued under some form of contract between an insurer and an" insured and not to a form of Workmen’s Compensation Insurance which results' solely from statutory enactment. The Workmen’s Compensation Law is a law that is distinct in itself and actions brought under it are not governed by the ordinary forms and rules of other actions. The obligations arising under it as well as the benefits that are secured by it are purely statutory'and I seriously doubt that an injured employee who is entitled to receive the benefits therein provided for can be classified as an insured in a policy issued under its terms and can recover, as such the penalties and the attorney’s fees imposed by LSA-R.S. 22:658. This latter statute being penal in its nature, has to be strictly construed and, considering the doubt which I have just expressed, I do not believe that its provisions should be applied in Workmen’s Compensation cases.
As pointed out in the opinion of the Court of Appeal in this case, 52 So.2d 597 , whenever the employer avails himself of the right that is given to him under the Workmen’s Compensation Law to take out insurance, the rights and obligations of three different parties are involved. This thought seems to be emphasized by the Court of Civil Appeals of Texas in the case of Inter-Ocean Casualty Co. v. Lenear, 95 S.W.2d 1355, 1358 , wherein it is stated: “In passing, it might be said that the Workmen’s Compensation Law is a tripartite arrangement, consisting of an agreement of the employer, employee, and the insurer, in consummation of which the employer makes the arrangements with and pays the premiums to the insurer without consulting the employee. When the insurance is thus procured, it is, in effect, as between the employer and the employee, a promise on the part of the employee to surrender all common-law rights of action for damages growing out of an accident in the course of his employment, and by the employer to *502 forego all such defenses which he might have in defense of such action. The insurance serves the means of protecting both the employer and employee. While such insurance may 'be considered an indemnity in the sense that the insurer promises to pay the employee on contingencies, but, in reality, it is a protective arrangement sanctioned by law for the mutual benefit of the employer and the employee. It is not an insurance as contemplated within the terms of appellant’s policy provision.”
The policy provision referred to by the court was one concerning the prorating of losses among two or more insurance companies and the appellant company was seeking to have the Workmen’s Compensation insurance included within the provisions of that clause. On this point the court further stated: “We do not believe that the provision can be given the effect of classifying the protection given an employee under the Workmen’s Compensation Law, as an insurance carried by the employee as to bring such insurance under the terms of the policy’s provision and the manifest purpose of such provision. The employee, under the Workmen’s Compensation Law, is merely the recipient of the benefits as provided in the law in consideration of surrendering rights which he may have independent of such law.”
I think that the holding in this case is pertinent to the thought I have that the employee is not an insured within the contemplation of that word as it is used in R.S. 22:658; and, it would seem to follow from this, that the form of insurance carried by the employer under the Workmen’s Compensation Law is not that type of contract contemplated under the statute to bring a violation of its provisions within its terms. I believe that its provisions apply to all forms of insurance which arise out of contract between individuals and not to Workmen’s Compensation Insurance which is governed strictly by the Workmen’s Compensation Law.
For these reasons I respectfully dissent from that part of the opinion and decree which awarded the penalties and the attorney’s fees in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857980. Public record. Not legal advice.