United States District Court, E.D. Louisiana
ORDER & REASONS
the Court is Defendant Arena Football One's Motion
seeking Summary Judgment. (R. Doc. 87). The Court has
reviewed the motions and applicable law, and issues the
following order and reasons.
case arises out of injuries allegedly sustained by Plaintiff
Lorenzo Breland while he was employed as a professional arena
football player. Jurisdiction of this Court is invoked under
diversity. (R. Doc. 44 at 1). Plaintiff alleges
misrepresentation, fraud, negligence, and breach of contract
against Defendants, Arena Football One, L.L.C.
(“AFO”), which owns Arena Football League One,
LLC (“AFLO”), and Louisiana Arena Football,
L.L.C. (“LAF”), which owns the New Orleans Voodoo
franchise. Plaintiff has also filed claims against AFO's
insurers, including National Casualty Company
(“National”) and Federal Insurance Company
(“Federal”),  averring that they provided a
commercial general liability policy to AFO, AFLO, and LAF.
(R. Doc. 53 at 3).
alleges he initially sustained a concussion while playing for
the Tulsa Talons in 2011, which is part of the AFO league.
(R. Doc. 44 at 12). After the team doctor diagnosed
Plaintiff, he alleges the team encouraged him to return and
he started the following game. Id. Subsequently, he
played for the New Orleans Voodoo. Plaintiff alleges that he
sustained a severe blow to the head during a game on April
11, 2014, which caused a second concussion. Id.
Plaintiff claims that, after the 2014 concussion, he received
inadequate medical attention and care and was pressured to
return to playing football before he was fully rehabilitated.
Id. He avers that, after complaining to the coach
about his continued health problems, he was sent to a speech
pathologist. Id. Plaintiff alleges that this head
injury caused him to remain bedridden for six weeks, and that
he was ultimately suspended from the league and cut from the
LAF team. Id. at 12-13. Plaintiff avers the 2014
concussion ended his career, and Defendants did not pay for
his ongoing medical care or rehabilitation to allow him to
return to play in a healthy manner. Id. at 13.
Plaintiff states that he continues to suffer long-term
problems, including dizziness, memory loss, headaches, weight
loss, neck aches and fatigue, and that he faces an increased
risk for future disorders as a result of the injuries.
Id. at 13, 16.
seeks damages, past and future medical expenses related to
the concussions, and medical monitoring to facilitate the
diagnosis and treatment of future disorders caused by the
injuries. Id. at 17. Plaintiff asserts that AFO knew
of the potential risks associated with head trauma but
intentionally concealed them. Id. at 13-14; 18.
Further, AFO fostered an environment of brutality and
violence and ignored the wellbeing of its players for the
sake of profit. Id. at 14. Plaintiff further alleges
that Defendants breached their duties by failing to take
appropriate steps to prevent or mitigate the potential for
injury, avoiding such steps due to the expense and impact on
league profitability. (R. Doc. 29 at 22). Plaintiff claims
that Defendants falsely represented to him that he would
receive excellent medical care, which they failed to provide.
Id. at 13. Plaintiff alleges that the league
players' collective bargaining agreement created an
obligation that the Defendants pay all medical expenses
resulting from any injury sustained while playing in a game,
but that Defendants have acted in bad faith and refused to
pay any expenses incurred as a result of Plaintiff's 2014
concussion. Id. at 26.
Plaintiff seeks (1) Declaratory Relief under 28 USC
§2201 stating that Defendants knew or should have known
about the long-term effects of trauma to the head that
Plaintiff endured while playing for AFO, had a duty to advise
Plaintiff of that risk but instead willfully and
intentionally concealed the risk, and recklessly endangered
Plaintiff; (2) an injunction for Court-supervised and
Defendant-funded medical monitoring for long-term
neurological affects as a result of Plaintiffs' minor
traumatic brain injuries (“MTBI”), which was a
result of Defendants' tortious conduct; (3) compensatory
damages for past, current, and future medical care; (4)
compensatory damages for pain and suffering; (5) punitive
damages; (6) any other relief; (7) attorneys' fees; (8)
and injunction and/or equitable relief against National,
holding that the insurance policy provided coverage for
Plaintiffs' injuries and claims and holding National in
bad faith under La. R.S. §§22:1892 and 22:1973. (R.
Doc. 44 at 14-28). Specifically to 8, Plaintiff seeks all
forms of insurance penalties, bad faith damages, general
damages, and attorneys' fees permitted under the
aforementioned statutes if National declines coverage. (R.
Doc. 53 at 3).
original Complaint had stated that he was an employee of AFO
and the New Orleans Voodoo, and that he was employed by AFO
from 2010 to 2014. (R. Doc. 1 at 11-12). Plaintiff added
Defendant LAF to the suit after discovering that LAF owned
the New Orleans Voodoo during the time period relevant to
Plaintiff's injuries. (R. Doc. 16 at 1). Plaintiff
submitted that he had mistakenly claimed in the Complaint
that he was employed by AFO, when in fact he was never
employed by AFO. (R. Doc. 16-1 at 2). However, Defendants
maintain, and Plaintiff now concedes, that Plaintiff was an
employee of AFO at all relevant times. (R. Doc. 87-1 at 2
n.4; R. Doc. 94 at 3).
Arena Football One, LLC (“AFO”) brought the
present motion for summary judgment, maintaining that the
instant suit is precluded because at the time of his alleged
injuries, Plaintiff was an employee of AFO and therefore can
only seek recovery through the Louisiana Worker's
Compensation Act (“LWCA”). (R. Doc. 87-1 at 1).
Plaintiff responded, alleging that certain claims under
intentional tort remain: AFO failed to pay Plaintiff's
medical expenses, failed to provide medical treatment, and
failed to have a proper concussion protocol. (R. Doc. 94).
Because AFO acted with specific intent to cause him injury
and damages and because intentional torts are excluded from
the LWCA, Plaintiff argues his suit is properly before this
court. Id. at 3.
LAW AND ANALYSIS
Summary Judgment Standard
judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c));
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the
evidence in the record but refrains from making credibility
determinations or weighing the evidence.” Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co.,
530 F.3d 395, 398 (5th Cir. 2008).
Federal Rule of Civil Procedure 56(c), the moving party bears
the initial burden of “informing the district court of
the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 322. When the moving party has met its Rule 56(c)
burden, “[t]he non-movant cannot avoid summary judgment
. . . by merely making ‘conclusory allegations' or
‘unsubstantiated assertions.'” Calbillo
v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th
Cir. 2002) (quoting Little, 37 F.3d at 1075).
“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 253 (1986). All reasonable
inferences are drawn in favor of the nonmoving party, but a