Appealed from the Office of Workers' Compensation (OWC),
District 06 In and for the Parish of St. Tammany, Louisiana
OWC No. 12-07388, Gwendolyn F. Thompson, Workers'
E. Cazalot, Jr. Slidell, Louisiana Attorney for Appellant
Plaintiff- Adam O'Bannon
Christopher P. Ieyoub Wesley A. Romero Lake Charles,
Louisiana Attorneys for Appellee Defendant - Texas Mutual
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
plaintiff/appellant, Adam O'Bannon, appeals a summary
judgment from the Louisiana Office of Workers'
Compensation ("OWC") in favor of the
defendant/appellee, Texas Mutual Insurance Company
("TMIC"), the workers' compensation insurer of
his employer, Moriah Technologies, Inc. ("Moriah"),
dismissing TMIC, with prejudice. For the reasons that follow,
we reverse in part and affirm in all other respects.
AND PROCEDURAL HISTORY
facts of this case are not in dispute. O'Bannon, a
Louisiana resident, was injured in Louisiana in June 2012,
while in the course and scope of his employment with Moriah,
a Texas corporation. TMIC provided a policy of workers'
compensation insurance to Moriah. O'Bannon filed a
disputed claim for compensation with the OWC in Louisiana
against Moriah and TMIC in October 2012. Moriah filed a
cross-claim against TMIC, seeking reimbursement for attorney
fees and costs incurred in the defense of the matter, as well
as reimbursement of any benefits paid to O'Bannon.
trial, the workers' compensation judge ("WCJ")
signed a judgment on January 13, 2015, holding that
O'Bannon was an employee of Moriah who sustained an
injury during the course and scope of his employment with
Moriah, and further, that the accident and injury sustained
were "traditional" workers' compensation
accidents and injuries as defined by the Louisiana
Workers' Compensation Act ("LWCA"), La. R.S.
23:1021 et seq. The WCJ cast Moriah in judgment for
indemnity, medical benefits and expenses, penalties, attorney
fees, and costs of the proceeding for Moriah's failure to
timely pay indemnity and medical benefits pursuant to La.
R.S. 23;1201(B) and 23;1201(E). Additionally, the WCJ held
that it did not have subject matter jurisdiction over
Moriah's cross-claim against TMIC for reimbursement of
workers' compensation benefits and dismissed Moriah's
claim against TMIC, with prejudice. Finally, the WCJ
dismissed O'Bannon's claim against TMIC, with
appealed the judgment of the WCJ. In O'Bannon v.
Moriah Techs., Inc., 2015-1460 (La.App. 1st
Cir. 6/3/16), 196 So.3d 127, this court affirmed the
WCJ's ruling that O'Bannon was an employee of Moriah
and that he sustained injury as a result of an accident that
occurred during the course and scope of his employment with
Moriah. 196 So.3d at 137, 140. This court affirmed the
WCJ's award of indemnity, medical benefits and expenses,
penalties, attorney fees, and costs to O'Bannon.
Id. at 142. Regarding the OWC's jurisdiction
over the claims asserted against TMIC, this court held that
the OWC had exclusive subject matter jurisdiction over the
claims asserted by O'Bannon and Moriah against TMIC, even
though the insurance policy at issue might require the
application of Texas law to determine coverage. We
accordingly vacated the portions of the WCJ's judgment
and supplemental and amending judgment that held the OWC did
not have jurisdiction over the claims asserted against TMIC
by O'Bannon and Moriah and remanded the matter to the OWC
for further proceedings consistent with our
opinion. Id. at 141-42.
remand, TMIC filed a motion for summary judgment arguing that
its policy of workers' compensation insurance issued to
Moriah does not provide coverage in favor of O'Bannon and
Moriah and further, that Moriah does not qualify for
reimbursement under the policy. O'Bannon and Moriah
opposed TMIC's motion for summary judgment. Following a
hearing held on December 7, 2016, the WCJ granted summary
judgment in favor of TMIC and signed a judgment on January
20, 2017 that: 1) held that TMIC's policy does not
provide coverage to Moriah for O'Bannon's workplace
accident; 2) gave full faith and credit to a Texas
judgment-rendered in favor of TMIC granting a motion for
summary judgment and a petition for declaratory
judgment-which held that TMIC had no duty to defend,
indemnify, or reimburse Moriah in the instant suit; and, 3)
dismissed TMIC from the instant suit, with prejudice. The WCJ
certified the partial summary judgment as final pursuant to
La. C.C.P. art. 1915(B) and issued written reasons for
judgment. O'Bannon now appeals the January 20, 2017
judgment, arguing the WCJ erred in concluding that no
workers' compensation coverage existed in his or
Moriah's favor under TMIC's policy of workers'
compensation insurance and that the WCJ erred in granting
summary judgment in favor of TMIC, dismissing the insurer
from the suit, with prejudice.
MOTION TO SUPPLEMENT THE RECORD
the prior appeal was pending, TMIC obtained a judgment from
the 261st Judicial District Court
("JDC") of Travis County, Texas in Texas Mutual
Insurance Company v. Moriah Technologies, Inc., cause
no. D-l-GN-14-000479. The judgment, signed January 5, 2016,
granted summary judgment and declaratory judgment in favor of
TMIC and 1) held that TMIC had no duty to defend, indemnify,
or reimburse Moriah regarding O'Bannon's claims for
workers' compensation benefits in the OWC in Louisiana;
and, 2) dismissed Moriah's counterclaims for breach of
contract, bad faith, and late payment of claims in the Texas
suit. This is the Texas judgment referred to in the WCJ's
January 20, 2017 judgment granting summary judgment in favor
TMIC petitioned the 14th JDC in Calcasieu Parish,
Louisiana to recognize the January 5, 2016 Texas judgment and
make it executory in the State of Louisiana. In an order
signed June 13, 2017, the trial court ordered that the Texas
judgment be registered, recognized, enforced, and made
executory in the State of Louisiana in accordance with the
Louisiana Enforcement of Foreign Judgments Act
("LEFJA"). See La.R.S. 13:4241-4248.
filed the instant unopposed motion to supplement the
appellate record with copies of the January 5, 2016 Texas
judgment and the June 13, 2017 judgment of the
14th JDC. This court entered an interim order
referring TMIC's motion to supplement the appellate
record to the panel to which the appeal is assigned.
appellate court, we have no jurisdiction to review evidence
that is not in the record on appeal, and we cannot receive
new evidence. Niemann v. Crosby Dev. Co., 2011-1337
(La.App. 1st Cir. 5/3/12), 92 So.3d 1039, 1044. An
appellate court must render its judgment upon the record on
appeal, i.e., that which is sent by the lower court
to the appellate court and includes the pleadings, court
minutes, transcripts, jury instructions (if applicable),
judgments, and other rulings, unless otherwise designated.
See La. C.C.P. arts. 2164 and 2127-2128. The OWC has
jurisdiction to correct an omission from the trial record on
appeal. An appellate court can neither supplement the record
nor consider documents on appeal which were not introduced or
filed into the record during the proceedings below.
See La. C.C.P. arts. 2088(4) and 2132; see
also Strawn v. Superfresh, 98-1624 (La.App.
1st Cir. 9/24/99), 757 So.2d 686, 688 n.2.
January 5, 2016 Texas judgment is already a part of the
record on appeal. The Texas judgment was filed by TMIC in
support of its motion for summary judgment and was properly
authenticated by an affidavit. See Comments-2OI5, cmt. (c) to
La. C.C.P. art. 966. To the extent TMIC seeks to supplement
the appellate record with the Texas judgment, we deny the
request as moot.
June 13, 2017 judgment of the 14th JDC is not a
part of the record on appeal; further, there is no evidence
that judgment was presented to the OWC or filed into the
record in the proceedings below. See Strawn, 757
So.2d at 688 n.2. Accordingly, TMIC's motion to
supplement the appellate record with the June 13, 2017
judgment of the 14th JDC is denied. Since it lies
outside the appellate record, that judgment will not be
considered by this court.
courts have a duty to examine subject matter jurisdiction
sua sponte, even when the parties do not raise the
issue. Texas Gas Exploration Corp. v. Lafourche Realty
Co., Inc., 2011-0520 (La.App. 1st Cir.
11/9/11), 79 So.3d 1054, 1059, writ denied,
2012-0360 (La. 4/9/12), 85 So.3d 698. As an appellate court,
we are obligated to recognize any lack of jurisdiction if it
exists. This court's appellate jurisdiction extends to
"final judgments, " which are those that determine
the merits in whole or in part. La. C.C.P. arts. 1841 and
2083; Van ex rel. White v. Davis, 2000-0206 (La.App.
1st Cir. 2/16/01), 808 So.2d 478, 483. However, a
judgment that only partially determines the merits of an
action is a partial final judgment and, as such, is
immediately appealable only if authorized by La. C.C.P. art.
1915. Rhodes v. Lewis, 2001-1989 (La. 5/14/02), 817
So.2d 64, 66.
A of Article 1915 designates certain categories of partial
judgments as final judgments subject to immediate appeal
without the necessity of any designation of finality by the
trial court, while Subpart B of Article 1915 provides that
when a court renders a partial judgment, partial motion for
summary judgment, or exception in part, it may designate the
judgment as final when there is no just reason for delay.
Article 1915, in pertinent part, provides:
A. A final judgment may be rendered and signed by the court,
even though it may not grant the successful party or parties
all of the relief prayed for, or may not adjudicate all of
the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties,
defendants, third party plaintiffs, third party defendants,
(2) Grants a motion for judgment on the pleadings, as
provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by
Articles 966 through 969, but not including a summary
judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental
demand, when the two have been tried separately, as provided
by Article 1038.
(5) Signs a judgment on the issue of liability when that
issue has been tried separately by the court, or when, in a
jury trial, the issue of liability has been tried before a
jury and the issue of damages is to be tried before a
(6) Imposes sanctions or disciplinary action pursuant to
Article 191, 863, or 864 or Code of Evidence Article 510(G).
B. (1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to one
or more but less than all of the claims, demands, issues, or
theories against a party, whether in an original demand,
reconventional demand, cross-claim, third-party claim, or
intervention, the judgment shall not constitute a final
judgment unless it is designated as a final judgment by the
court after an express determination that there is no just
reason for delay.
(2) In the absence of such a determination and designation,
any such order or decision shall not constitute a final
judgment for the purpose of an immediate appeal and may be
revised at any time prior to rendition of the judgment
adjudicating all the claims and the rights and liabilities of
all the parties.
January 20, 2017 judgment at issue herein, which grants
summary judgment in favor of TMIC, falls within the first
category identified in Subpart A of Article 1915 because the
judgment dismisses TMIC from the suit, with prejudice. Under
Article 1915(A)(1), the judgment is final for purposes of an
immediate appeal, without the need for a designation of
finality. For this reason, our jurisdiction extends to this
appeal. Accordingly, ...