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Scarberry v. Entergy Corp.

Court of Appeals of Louisiana, Fourth Circuit

May 6, 2015


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APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2009-07545, DIVISION " F" . Honorable Christopher J. Bruno, Judge.

Jennifer J. Greene, Joseph E. Cain, Russ M. Herman, Herbert A. Cade, James C. Klick, HERMAN HERMAN KATZ & COTLAR, L.L.P., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.


Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Roland L. Belsome


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[2014-1256 La.App. 4 Cir. 1] Edwin A. Lombard, J.

 Appellant and intervenor, Oklahoma Gas and Electric Company (" OGE" ), seeks review of the August 25, 2014 judgment of the district court denying its claim for reimbursement. Finding that the district court did not err, we affirm.


The facts of this case were previously set forth in Scarberry v. Entergy Corp., 13-0214 (La.App. 4 Cir. 2/19/14), 136 So.3d 194. Those facts relevant to the instant matter are that Mr. Scarberry, a former electrical lineman for OGE, was injured in Louisiana while assisting Entergy Gulf States Louisiana, L.L.C. and Entergy Services, Inc. (referred to herein collectively as " Entergy" ) in its efforts to restore electrical power following Hurricane Gustav. Entergy and OGE are members of the Southeastern Electrical Exchange (" SEE" ), which is a nonprofit trade association composed of numerous utility companies that provide electricity to approximately twenty eastern, southeastern and Midwestern American states. Members of SEE entered into a Mutual Assistance Agreement (" Agreement" ), which governs the relationship between Requesting Companies and Responding Companies, including Entergy and OGE, respectively. Scarberry, 13-0214, pp. 40-41, 136 So.3d at 219.

[2014-1256 La.App. 4 Cir. 2] In July 2009, Mr. Scarberry sued Entergy seeking damages as a result of his injuries. Thereafter, OGE filed a petition for intervention requesting reimbursement for the workers' compensation benefits paid to Mr. Scarberry. On August 1, 2011, OGE executed a " Receipt" acknowledging that it received $156,470.38 from Entergy as reimbursement for workers' compensation benefits paid to Mr. Scarberry through June 28, 2011. This reimbursement was made pursuant to the terms of the Agreement and OGE reserved its rights to subrogation within the Receipt.

Following a jury trial and verdict in Mr. Scarberry's favor, both Entergy and Mr. Scarberry appealed the district court's judgment of December 5, 2013. A portion of the district court's judgment, which stated that there be a judgment " in favor of workers' compensation intervenor, Oklahoma Gas & Electric Company [OGE], in an amount to be determined in accordance with the applicable law," was not appealed by either party.[1] Our determination of the prior appeal is not at issue in the instant matter.

After the filing of the respective appeals of Entergy and Scarberry, OGE moved the district court to quantify its intervention. It specifically requested that the district court determine the amount of monetary recovery that it is entitled to receive out of the judgment rendered in Mr. Scarberry's favor and paid by Entergy. OGE further sought a judgment recognizing its entitlement to a credit toward any " potential future exposure" to Mr. Scarberry under Oklahoma's Workers' Compensation Act. In its August 25, 2014 judgment, the district court dismissed OGE's claims for reimbursement and its intervention. The court reasoned that Mr. [2014-1256 La.App. 4 Cir. 3] Scarberry was a third-party beneficiary to the Agreement executed by OGE and Entergy; thus, Entergy's reimbursement to OGE was for Mr. Scarberry's benefit. The district court later denied OGE's motion

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for new trial and converted its suspensive appeal to a devolutive appeal.

OGE filed this timely appeal. The crux of this appeal is whether the district court legally erred in allegedly denying OGE's statutory right to recover reimbursement of workers' compensation benefits that it paid its employee, Mr. Scarberry. Related to this argument, OGE raises four (4) assignments of error:

1. Mr. Scarberry's failure to plead the affirmative defense of extinguishment barred him from challenging OGE's intervention on that basis post-trial and post-judgment;
2. Mr. Scarberry's failure to appeal the first judgment--which validated OGE's intervention-- prevents him from raising an affirmative defense after the appeal was decided by this Court;
3. The parties to the Agreement intended to alter the rights between a Responding Company and its own employee, and, in any event, Mr. Scarberry did not otherwise establish ...

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