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Liberty Mutual Fire Ins. Co. v. Weaver

Court of Appeals of Louisiana, Third Circuit

May 10, 2017

LIBERTY MUTUAL FIRE INS. CO.
v.
TERRY WEAVER, ET AL.

         APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. C-88391, DIV. B HONORABLE LALA BRITTAIN SYLVESTER, DISTRICT JUDGE

          Dan Boudreaux Law Offices of Keith S. Giardina COUNSEL FOR PLAINTIFF/APPELLANT: Liberty Mutual Fire Ins. Co.

          George A. Flournoy Flournoy & Doggett, APLC COUNSEL FOR DEFENDANTS/APPELLEES: Allmerica Financial Benefit Ins. Co. Terry Weaver Progressive Gulf Ins. Co.

          Sidney J. Angelle Erik L. Vollenweider Lobman, Carnahan, Batt, Angelle & Nader COUNSEL FOR DEFENDANT/APPELLEE: Allmerica Financial Benefit Ins. Co.

          S. Curtis Mitchell Casler, Bordelon & Lawler COUNSEL FOR DEFENDANTS/APPELLEES: Terry Weaver Progressive Gulf Ins. Co.

          Court composed of D. Kent Savoie, David E. Chatelain, and Van H. Kyzar, Judges.

          DAVID E. CHATELAIN, JUDGE [*]

         The 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 affirm.[1]

         PROCEDURAL HISTORY

         On March 28, 2016, Liberty Mutual filed a petition alleging a violation of La.R.S. 23:1102(C)(1) against the defendants.[2] 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 La.R.S. 23:1102(C)(1).

         On July 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.[3] 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.

         The 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.

         RES JUDICATA: ISSUE PRECLUSION

         In the 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 was ...


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