LIBERTY MUTUAL FIRE INS. CO.
TERRY WEAVER, ET AL.
FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF
NATCHITOCHES, NO. C-88391, DIV. B HONORABLE LALA BRITTAIN
SYLVESTER, DISTRICT JUDGE
Boudreaux Law Offices of Keith S. Giardina COUNSEL FOR
PLAINTIFF/APPELLANT: Liberty Mutual Fire Ins. Co.
A. Flournoy Flournoy & Doggett, APLC COUNSEL FOR
DEFENDANTS/APPELLEES: Allmerica Financial Benefit Ins. Co.
Terry Weaver Progressive Gulf Ins. Co.
J. Angelle Erik L. Vollenweider Lobman, Carnahan, Batt,
Angelle & Nader COUNSEL FOR DEFENDANT/APPELLEE: Allmerica
Financial Benefit Ins. Co.
Curtis Mitchell Casler, Bordelon & Lawler COUNSEL FOR
DEFENDANTS/APPELLEES: Terry Weaver Progressive Gulf Ins. Co.
composed of D. Kent Savoie, David E. Chatelain, and Van H.
E. CHATELAIN, JUDGE [*]
plaintiff, Liberty Mutual Fire Insurance Company (Liberty
Mutual), appeals the trial court's judgments granting the
peremptory exceptions of res judicata of the defendants,
Allmerica Financial Benefit Insurance Company (Allmerica),
Terry Weaver (Weaver), and Progressive Gulf Insurance Company
(Progressive) (collectively "the defendants"). We
March 28, 2016, Liberty Mutual filed a petition alleging a
violation of La.R.S. 23:1102(C)(1) against the
defendants. In its petition, Liberty Mutual alleged
that it had intervened and asserted a workers'
compensation lien in a separate tort action filed by Mary
Ortega (Ortega), and that on September 19, 2015, the
defendants entered into a settlement agreement with Ortega
without obtaining Liberty Mutual's consent as required by
12, 2016, Weaver filed a peremptory exception of res judicata
alleging that in the prior suit "the action was between
the same parties on the same cause of action as this action[,
] and that Liberty Mutual's claim in the tort action had
been resolved pursuant to a judgment of dismissal rendered on
October 27, 2015." On that same day, Progressive also
filed a peremptory exception of res judicata asserting the
same reasons as Weaver. Likewise, on August 2, 2016, Allmerica
filed a peremptory exception of res judicata and a motion for
sanctions. Allmerica asserted that the current suit is
"founded on the same cause of actions, demands the same
thing, and is between the same parties and formed by them in
the same quality as" the prior suit. On August 19, 2016,
Liberty Mutual filed a memorandum in opposition to the
defendants' peremptory exceptions of res judicata to
which it attached three exhibits: (A) the trial court's
judgment in the prior suit signed on October 27, 2015; (B)
its petition of intervention in the prior suit filed on July
25, 2014; and (C) the September 17, 2015 settlement agreement
between the defendants and Ortega in the prior suit.
trial court held a hearing on the exceptions on August 25,
2016. Liberty Mutual offered its memorandum in opposition
with its attachments for the record. The defendants offered
no evidence at the hearing. On September 19, 2016, the trial
court entered two judgments in this matter, one submitted by
Liberty Mutual and one by the defendants; it is impossible to
determine which judgment the trial court signed first.
Although the two judgments differed in phraseology, the
decretal language was the same - the trial court granted the
peremptory exceptions of res judicata and denied the motion
for sanctions. Liberty Mutual timely appealed both judgments.
JUDICATA: ISSUE PRECLUSION
present case, Liberty Mutual relies upon La.R.S.
23:1102(C)(1), contending that because of the settlement
Ortega reached with the defendants without Liberty
Mutual's prior written approval, it is entitled to
"a total amount of $103, 748.71 and all additional
workers' compensation payments that may accrue or occur
subsequent to the resolution of this litigation as a matter
of law." Liberty Mutual further argues that because the
settlement at issue was entered into before its intervention