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Penton v. Castellano

Court of Appeal of Louisiana, Second Circuit

June 24, 2015

KAMITHIA D. PENTON, Plaintiff-Appellee
MICHAEL A. CASTELLANO, ET AL., Defendant-Appellant

Page 740

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 554,384. Honorable Michael Pitman, Judge.

DALE G. COX, JR., Counsel for Appellant, Caddo Parish School Board.

WEEMS, SCHIMPF, GILSOUL, HAINES, LANDRY & SHEMWELL, By: Brian D. Landry, Counsel for Appellee.



Page 741

[49,843 La.App. 2 Cir. 1] GARRETT, J.

In this tort suit brought by an assistant principal allegedly injured by a student, the Caddo Parish School Board (CPSB) appeals from a trial court judgment granting an exception of res judicata brought by the plaintiff, Kamithia D. Penton, which dismissed its intervention seeking reimbursement of worker's compensation benefits.

Page 742

We reverse the trial court judgment and remand for further proceedings.


The underlying facts of the tort case in which the intervention was filed were discussed in detail in Penton v. Castellano, 48,433 (La.App.2d Cir. 10/23/13), 127 So.3d 944, writs denied, 2013-2687 (La. 2/7/14), 131 So.3d 867, and 2013-2725 (La. 2/7/14), 131 So.3d 869 ( Penton I ). Briefly, a young student had an extensive disciplinary record at both private and public schools. After being suspended from Summer Grove Elementary School, a public school, the child was admitted to Brentwood Hospital, where he was diagnosed as being bipolar. After returning to the public school, his disruptive and physically violent behavior continued. Ms. Penton, the assistant principal and disciplinarian at Summer Grove, urged the principal, Pamela Bloomer, to remove the child -- who was in second grade -- from the school due to the danger he posed to the other students and staff. The principal refused due to the lack of an alternative school for a child his age. Shortly thereafter, Ms. Penton was tripped and injured by the child on November 3, 2010, while escorting him to the school office after another violent outburst. Approximately one week later, the child was expelled from Summer Grove and transferred to another school.

[49,843 La.App. 2 Cir. 2] On October 12, 2011, Ms. Penton filed suit seeking damages for her personal injuries. Named as defendants were the child's divorced parents; Ms. Bloomer; and the CPSB, in its capacity as Ms. Bloomer's employer. The petition asserted that Ms. Bloomer intentionally refused to fulfill her duties by allowing the child to return to Summer Grove when there was a " substantial certainty" he would injure someone and that the CPSB was responsible for her intentional acts. In an amended petition, State Farm Fire & Casualty Company was added as a defendant as the insurer of each parent.

In response to the suit, the CPSB and Ms. Bloomer filed an answer and peremptory exception of no cause of action on October 27, 2011, in which they asserted that Ms. Penton's exclusive remedy against the CPSB was worker's compensation and, alternatively, pled the comparative fault of Ms. Penton and the child. In February 2012, they filed an answer to the amended petition, as well as exceptions of confusion and no right of action. In relevant part, these pleadings stated:

The Caddo Parish School Board has paid and continues to pay Kamithia D. Penton her full salary and all her medical bills as part of [its] obligation under the workers compensation laws.


The Caddo Parish School Board is entitled to be reimbursed for those benefits it pays to Kamithia D. Penton pursuant to La. R.S. 23:1101 et. seq. against any third party who may be liable to Kamithia D. Penton in her third party action.


If it is determined that the Caddo Parish School Board has liability to Pamela [sic] D. Penton then the school board would be both creditor and debtor to the extent of [its] payments to Kamithia D. Penton and hence the obligation is extinguished through the legal doctrine of confusion.

[49,843 La.App. 2 Cir. 3] 27.

Because the Caddo Parish School Board is legally subrogated to all rights that Kamithia D. [Penton] has for medical expense and disability damages Kamithia D. Penton has no right of action for these amounts.

Page 743

In February 2013, the CPSB and Ms. Bloomer filed a motion for summary judgment. They asserted that Ms. Penton could not establish an intentional tort and that her sole remedy against the CPSB was in worker's compensation, and that she had, in fact, already made a worker's compensation claim and received full benefits. They also alleged that La. R.S. 17:416 (which establishes the procedures for the discipline, suspension and expulsion of students) did not impose a duty upon Ms. Bloomer to expel the child. Although the trial court denied the motion, their writ to this court was granted and made peremptory. Penton v. Castellano, 48,428 (La.App.2d Cir. 5/23/13) ( Penton II ). We stated:

The applicants, the Caddo Parish School Board and Pamela S. Bloomer, seek review of the trial court's denial of their motion for summary judgment. We conclude that the applicants are entitled to summary judgment because the plaintiff cannot establish that her injuries resulted from an intentional act by the applicants. Therefore, this writ is granted and made peremptory. The judgment of the trial court is hereby reversed and judgment is entered in the applicants' favor, dismissing them from the suit.

In the meantime, the child's mother was dismissed from the suit by summary judgment; the dismissal was affirmed on appeal.[1] The child's father, who was the domiciliary parent, and his insurer were also initially dismissed from the suit by the trial court pursuant to a motion for summary judgment and an exception of no right of action; however, this court reversed that decision on appeal. The matter was remanded for further [49,843 La.App. 2 Cir. 4] proceedings. The Louisiana Supreme Court denied writs on February 7, 2014. See Penton I, supra.

On March 19, 2014, the trial court set the matter between the remaining parties (the plaintiff, the child's father and his insurer) for jury trial on July 21, 2014. The scheduling order directed that all amended pleadings be filed within 30 days of the date of the order and all dispositive motions 90 days before trial. Thereafter, on March 27, 2014, the father and his insurer filed an amended answer asserting the payment of worker's compensation benefits to the plaintiff as an affirmative defense and requesting an offset for any sums she received in payment for medical bills, mileage and/or lost wages.

On May 6, 2014, the CPSB, in its capacity as Ms. Penton's employer, filed a petition of intervention alleging that it had paid $81,661.62 in medical expenses as a result of the injuries sustained by the plaintiff in the accident at issue which occurred in the course and scope of her employment.[2] It sought to recover, by preference and priority, the sums it had paid or might in the future have to pay to and on behalf of Ms. Penton and to receive a credit against future payments should her recovery be sufficient. The trial court signed an order allowing the intervention.

In response to the petition of intervention, Ms. Penton filed an exception of res judicata, contending that the intervention sought to present a claim which was subject to a compulsory pleading and which the CPSB was obligated to bring prior to its previous dismissal from the suit. Attached [49,843 La.App. 2 Cir. 5] to the exception as exhibits were copies of the plaintiff's original petition, the original answer and peremptory exception of no cause of action filed by the

Page 744

CPSB and Ms. Bloomer in October 2011, the writ grant in favor of the CPSB and Ms. Bloomer, and the CPSB's petition of intervention. Ms. Penton cited the answer in support of her contention that no reconventional demand or cross claim to recover worker's compensation benefits had ...

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