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Guillory v. R & R Construction, Inc.

Court of Appeals of Louisiana, Third Circuit

March 14, 2018

RAPHEAL GUILLORY, JR.
v.
R & R CONSTRUCTION, INC., ET AL.

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - DISTRICT 3 PARISH OF CALCASIEU, NO. 16-03817 CHARLOTTE BUSHNELL, WORKERS' COMPENSATION JUDGE

          Skylar Comeaux Comeaux, Stephens & Grace COUNSEL FOR DEFENDANTS/APPELLANTS: Zurich North American Insurance R & R Construction, Inc.

          Jacqueline K. Becker Michael B. Miller Miller and Associates COUNSEL FOR PLAINTIFF/APPELLEE: Rapheal Guillory, Jr.

          Kenneth M. Habetz, Jr. Brandt & Sherman COUNSEL FOR INTERVENORS/APPELLEES: Kenneth M. Habetz, Jr. Brandt & Sherman, LLP

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.

          JOHN D. SAUNDERS, JUDGE.

         In this case, we must decide whether the imposition of penalties and attorney fees for Employer's failure to properly tender settlement funds to Employee pursuant to the terms of their settlement agreement is incorrect. We must also decide whether the inclusion of certain statutory language on the settlement checks imposed impermissible conditions on Employee's receipt of the settlement funds contrary to the terms of the settlement agreement.

         Employee was injured during the course and scope of his employment. Subsequently, Employee entered into a settlement agreement with Employer, wherein Employer stipulated to the unconditional tender of a lump sum settlement to Employee on or before a specified date. The workers' compensation judge approved the settlement agreement, and it was stated on the record. Thereafter, Employer failed to pay Employee pursuant to the terms of their agreement. Ultimately, Employee filed for a new trial, seeking penalties and attorney fees for Employer's failure to tender settlement funds pursuant to the terms of their settlement agreement. Following a hearing, the workers' compensation judge found in Employee's favor.

         Employer now appeals the workers' compensation judge's ruling, alleging two assignments of error. Its argument is that the imposition of penalties and attorney fees for the alleged improper tender of settlement funds is inconsistent with Louisiana Law and that the inclusion of certain statutory language on the settlement checks does not constitute impermissible conditions on Employee's receipt of the settlement funds contrary to the terms of the settlement agreement.

         FACTS AND PROCEDURAL HISTORY:

         On August 23, 2013, Rapheal Guillory ("Employee") was injured in the course and scope of his employment with R&R Construction, Inc., who was insured by Zurich North America Insurance Company (hereinafter collectively referred to as "Employer"). Initially, Employee received compensation for his injuries, but those benefits were terminated on May 20, 2016. As a result, Employee filed suit against Employer seeking benefits, as well as penalties and attorney fees for termination of his benefits.

         Prior to trial, the parties reached a settlement of Employee's workers' compensation claim which was placed on the record on March 8, 2017. Pursuant to the parties' agreement, Employer agreed to pay Employee a lump sum in full and final settlement of his claims no later than March 24, 2017.

         On March 27, 2017, Employer's counsel untimely hand-delivered to Employee's counsel a Receipt and Release, a Joint Motion and Order of Dismissal, and two checks totaling $225, 930.04. The checks contained certain statutory language that allegedly imposed impermissible conditions on Employee's receipt of the settlement funds, which was not part of the settlement agreement between the parties. The expenses totaling $2, 224.40, a portion of the settlement agreement, was not delivered until March 30, 2017, and was made payable to Miller and Associates with the same conditional language. Thereafter, Employee's counsel sought permission from Employer's counsel to either scratch through the conditional language so that the checks could be endorsed and deposited, or to return the checks so that they could be reissued without the conditional language. Employer's counsel responded that he did not have the authority to do either.

         On April 17, 2017, Employer filed a Motion to Enforce Settlement Agreement and Motion for Penalties and Attorney fees which was heard on May 4, 2017. Following a hearing, the workers' compensation judge found that Employer's tender of settlement funds was neither timely nor unconditional. However, because the amount of penalties awarded could not be determined on the face of the judgment, Employee filed motion for a new trial on June 29, 2017, which was heard on July 24, 2017. Following a hearing, the workers' compensation judge signed an amended judgment which included penalties and attorney fees for Employer's failure to properly pay settlement funds.

         Employer timely filed a motion for suspensive appeal, seeking reversal of the amended judgment signed July 24, 2017. Pursuant to that motion, Employer is presently before this court alleging two assignments of error. Employee timely filed an answer to this appeal alleging one assignment of error, seeking an increase in the award of attorney fees.

         EMPLOYER'S ...


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