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Inc. v. New Hampshire Insurance Co.

Court of Appeals of Louisiana, First Circuit

November 1, 2017

BIG 4 TRUCKING, INC. AND NATIONWIDE AGRIBUSINESS INSURANCE COMPANY
v.
NEW HAMPSHIRE INSURANCE COMPANY

         Appealed from the The Office of Workers' Compensation In and for the Parish of St. Tammany, Louisiana Number 16-05319, District 06 Honorable Gwendolyn F. Thompson, Judge

          Frank R. Whiteley Robert J. May Megan M. Richardson New Orleans, Louisiana Attorneys for Appellants Plaintiffs - Big 4 Trucking, Inc. and Nationwide Agribusiness Insurance Company

          Elizabeth A. Liuzza Metairie, Louisiana Attorney for Appellee Defendant - New Hampshire Insurance Company

          BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

          WELCH, J.

         In this workers' compensation matter, the plaintiffs, Big 4 Trucking, Inc. and Nationwide Agribusiness Insurance Company, appeal a judgment by the Office of Workers' Compensation ("OWC") sustaining a peremptory exception raising the objection of prescription and dismissing certain claims against the defendant, New Hampshire Insurance Company. For the reasons that follow, we reverse the judgment and remand this matter back to the OWC for further proceedings consistent with this ruling herein.

         FACTUAL AND PROCEDURAL BACKGROUND

         Successive Claims & Settlement

         On March 27, 2014, Darrell Shanks sustained injuries as the result of an accident while in the course and scope of his employment with Big 4 Trucking, Inc. ("Big 4 Trucking"). At the time of Mr. Shanks' 2014 accident, New Hampshire Insurance Company ("New Hampshire") had in effect a policy providing workers' compensation coverage to Big 4 Trucking. As per the policy, New Hampshire paid indemnity benefits and medical benefits in connection with Mr. Shank's injuries. Relevant to the issues under consideration herein, New Hampshire made the last indemnity benefit payment to Mr. Shanks on April 25, 2014, and the last medical benefit was paid on behalf of Mr. Shanks by New Hampshire on August 12, 2014.[1]

         On July 2, 2015, Mr. Shanks was involved in a second accident while still in the course and scope of his employment for Big 4 Trucking. At the time of the 2015 accident, Nationwide Agribusiness Insurance Company ("Nationwide") provided workers' compensation insurance coverage to Big 4 Trucking. Nationwide paid approximately $22, 500.00 in indemnity benefits and $52, 991.55 in medical benefits on behalf of Mr. Shanks following the 2015 accident. Nationwide and Big 4 Trucking eventually entered into a settlement agreement with Mr. Shanks. As required by La. R.S. 23:1274, the settlement was approved by the workers' compensation judge ("WCJ") on June 17, 2016. Under the terms of the settlement agreement, Mr. Shanks expressly released Nationwide and Big 4 Trucking from any obligation to pay past or future indemnity benefits or medical benefits claims in exchange for a lump sum payment of $245, 000.00.

         Claim for Contribution - Exception of Prescription

         On August 9, 2016, Big 4 Trucking filed a disputed claim for compensation urging the claim for contribution at issue in the instant appeal.[2] On November 28, 2016, Nationwide was added as a named plaintiff via a second amended disputed claim for compensation. The attached petition for compensation alleged that Mr. Shanks sustained injuries in both the 2014 and 2015 accidents while in the course and scope of his employment with Big 4 Trucking. The complaint alleged solidary liability between all of the named parties on the basis that Mr. Shanks' claims arising out of the 2015 accident resulted from an aggravation of the injuries he sustained in the 2014 accident. The contribution claim asserted was for one half of all workers' compensation benefits and medical expenses paid by Big 4 Trucking and Nationwide in connection with Mr. Shanks' job related accidents. New Hampshire answered and urged peremptory exceptions raising the objections of prescription and no right of action.

          On December 5, 2016, a hearing was held on New Hampshire's exceptions of prescription and no right of action. New Hampshire's exception of no right of action was denied by the WCJ, and a judgment was signed on December 16, 2016. Regarding prescription, citing La. R.S. 23:1209 and Larkin v. Regis Hair Stylists, 2002-127 (La.App. 3rd Cir. 5/15/02), 817 So.2d 1266, New Hampshire argued a one year prescriptive period applied to all claims for contribution brought under the Workers' Compensation Act. New Hampshire argued that the action for contribution was prescribed because the action was filed more than one year after New Hampshire had made its last payment of benefits to Mr. Shanks. The WCJ took the matter under advisement and issued a judgment signed December 20, 2016, and for the reasons argued by New Hampshire, sustained the exception of prescription and dismissed the claims against Nationwide with prejudice. We observe that the judgment signed December 20, 2016, addressed and ruled on only those claims asserted by Nationwide; thus, the claims asserted by Big 4 Trucking remain pending before the WCJ.[3]

         Nationwide and Big 4 Trucking filed this devolutive appeal of the WCJ's December 20, 2016 judgment, and assert that the WCJ erred as a matter of law in its finding that the claim for contribution "for supplemental earnings benefits and medical benefits paid to [Mr. Shanks] prescribed." As noted herein, there is no final judgment against Big 4 ...


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