Rico Lewis and Kim Lewis v. Erin Wieber, Progressive Direct Insurance Company, Acme Truck Line, Inc., and Xyz Insurance Company

RICO LEWIS AND KIM * NO. 2021-CA-0476
LEWIS
*
VERSUS COURT OF APPEAL
*
ERIN WIEBER, FOURTH CIRCUIT
PROGRESSIVE DIRECT *
INSURANCE COMPANY, STATE OF LOUISIANA
ACME TRUCK LINE, INC., *******
AND XYZ INSURANCE
COMPANY

CONSOLIDATED WITH: CONSOLIDATED WITH:

ERIN WIEBER, WIFE OF/AND NO. 2021-CA-0477
SCOTT WIEBER, INDIVIDUALLY
AND ON BEHALF OF THEIR
MINOR CHILDREN MACKENZIE
WIEBER AND AIDAN WIEBER,
AND BRENNAN WIEBER

VERSUS

ACME TRUCK LINE, INC., RICO
LEWIS, JR., HUDSON
INSURANCE COMPANY, ABC
INSURANCE COMPANY AND
XYZ INSURANCE COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-04835, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Pro Tempore Judge Madeline Jasmine
******
(Court composed of Chief Judge Terri F. Love, Judge Edwin A. Lombard, Pro
Tempore Judge Madeline Jasmine)

Michael C. Ginart, Jr.
Joyce D. Young
Nicholas N.S. Cusimano
John C. Ginart
LAW OFFICES OF MICHAEL C. GINART, JR. & ASSOCIATES
2114 Paris Road
Chalmette, LA 70043

COUNSEL FOR PLAINTIFF/APPELLANT

S. Daniel Meeks
Laurence R. DeBuys, IV
Kristen E. Meeks
MEEKS & ASSOCIATES, LLC
3401 West Esplanade Avenue South, Suite 3
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
JULY 6, 2022

MJ

TFL

EAL

In this personal injury suit, plaintiff Kim Lewis (“Mrs. Lewis”) seeks

appellate review of the trial court’s granting of summary judgment in favor of

Defendant Acme Truck Line, Inc. (“Acme”).

On appeal, we find Mrs. Lewis’ workers’ compensation settlement was

dispositive of her employment status at the time of the motor vehicle accident;

thus, as an employee of Acme, Mrs. Lewis’ exclusive remedy against Acme was in

workers’ compensation. Moreover, in that the doctrine of res judicata applies

where there is a compromise or settlement, we find, for the reasons addressed

herein, that Mrs. Lewis is barred from recovering against Acme in tort.

Accordingly, we affirm the trial court’s judgment granting summary judgment in

favor of Acme.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1

On December 12, 2018, defendant Erin Wieber (“Ms. Wieber”) drove her

vehicle into a tractor-trailer rig, driven by plaintiff Rico Lewis (“Mr. Lewis”) and

in which Mr. Lewis’ wife, Mrs. Lewis, was a passenger. At the time of the

incident, both Mr. and Mrs. Lewis were employed by Acme, and Acme leased the

tractor-trailer owned by Mr. Lewis.

As a result of the accident, the Lewis’ claimed they suffered bodily injuries.

In January 2019, the Lewises filed a workers’ compensation claim against Acme

and its insurer, Continental Indemnity Company (“Continental”) for benefits for

injuries they allegedly sustained in connection with the December 2018 accident.

In May 2019, the Lewises filed a separate civil action, asserting negligent tort

claims against Ms. Wieber and Acme.

During the pendency of the civil suit, in July 2019, a Joint Petition to

Compromise Disputed Claim for Workers’ Compensation Benefits (“Petition to

Compromise”) was filed in the workers’ compensation case on behalf of Mrs.

Lewis1, Acme, and its insurer Continental. In conjunction with the Petition to

Compromise, Mrs. Lewis executed a Receipt, Release and Indemnification

Agreement (“Release”). Pursuant to the Petition to Compromise, Mrs. Lewis

settled her workers’ compensation claim against Acme for $35,000.00 in exchange

for a release of all claims against Acme. The workers’ compensation judge

approved the compromise and settlement and entered a judgment of dismissal on

1 Although Mrs. Lewis states that the Petition to Compromise was entered into between Acme

and both her and her husband, the record reflects that the compromise was entered into between
Mrs. Lewis and Acme.

2

July 29, 2019, dismissing Mrs. Lewis’ claims with prejudice. Mrs. Lewis did not

appeal the judgment of dismissal.

Thereafter, in November 2020, Acme filed a motion for summary judgment

in the civil suit, alleging Mrs. Lewis’ tort claims should be dismissed because: (1)

as an employee of Acme, Mrs. Lewis’ exclusive remedy against Acme was in

workers’ compensation; and (2) the approved settlement in the workers’

compensation case (“the Settlement”) was dispositive of the issue of Mrs. Lewis’

employment status; therefore, res judicata barred Mrs. Lewis from pursuing a tort

action against Acme. Mrs. Lewis filed an opposition, and in March 2021, a

hearing was held on Acme’s motion for summary judgment. On April 14, 2021,

the trial court granted summary judgment in favor of Acme and against Mrs.

Lewis.2 It is from this ruling, Mrs. Lewis seeks appellate review.

STANDARD OF REVIEW

We apply a de novo standard of review in examining a trial court’s ruling

on summary judgment. Hare v. Paleo Data, Inc., 11-1034, p. 9 (La. App. 4 Cir.

4/4/12), 89 So.3d 380, 387. Accordingly, we use the same criteria that governs a

trial court’s consideration of whether summary judgment is appropriate. Id. “[A]

motion for summary judgment shall be granted if the motion, memorandum, and

supporting documents show that there is no genuine issue of material fact and that

the mover is entitled to judgment as a matter of law.” La. C.C.P. art.

966(A)(3). “Factual inferences reasonably drawn from the evidence must be

2 This Court ordered the trial court to amend its judgment because it lacked the necessary
decretal language indicating the name of the party against whom the relief was awarded in
addition to the relief that was awarded. The trial court signed an amended judgment on April 21,
2022, and filed proof of compliance with this Court on or about May 18, 2022.

3

construed in favor of the party opposing the motion and all doubts must be

resolved in the opponent’s favor.” Fiveash v. Pat O’Brien’s Bar, Inc., 15-1230, p.

7 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 917 (quoting Quinn v. RISO

Investments, Inc., 03-0903, p. 3 (La. App. 4 Cir. 3/3/04), 869 So.2d 922, 926). In

“determining whether an issue is genuine, courts cannot consider the merits, make

credibility determinations, evaluate testimony, or weigh evidence.” Id. (quoting

(quoting Quinn, 03-0903, p. 3-4, 869 So.2d at 926).

La. C.C.P. art. 966(D)(1) governs the mover’s burden on a motion

for summary judgment:

The burden of proof rests with the mover. Nevertheless, if the mover
will not bear the burden of proof at trial on the issue that is before the
court on the motion for summary judgment, the mover’s burden on the
motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

Id.

DISCUSSION

Mrs. Lewis raises two assignments of error on appeal. First, she claims the

trial court erred in finding that the Settlement in the workers’ compensation case is

dispositive of her employment status at the time of the accident. Second, Mrs.

Lewis avers that the trial court erred when it found res judicata barred her tort

claim against Acme.

Effect of the Settlement

4

“To recover in a workers’ compensation action, the claimant must establish

‘personal injury by accident rising out of and in the course and scope of his

employment.’” Gibson v. Wal-Mart La., LLC, 20-0033, p. 2 (La. App. 4 Cir.

8/27/20), --So.3d --, 2020 WL 5078504, *5 (quoting Lenig v. Textron Mar. &

Land Systems, 13-0579, p. 6 (La. App. 4 Cir. 8/7/13), 122 So.3d 1097, 1100). The

determination of whether an injury occurred in the course and scope of

employment is a mixed question of law and fact. J.C. on Behalf of N.C. v. St.

Bernard Parish Sch. Bd., 21-0111, p. 12 (La. App. 4 Cir. 2/4/22), 336 So.3d 92,

100, writ denied, 22-00372 (La. 4/26/22), -- So.3d --, 2022 WL 1222776.

In the workers’ compensation proceedings, Mrs. Lewis obtained a settlement

from Acme based on her admission that she was in the course of her employment

at the time of the accident. In the instant civil suit, however, Mrs. Lewis takes the

contrary position that at the time of the accident, she was not acting within the

course of her employment with Acme, but merely accompanying her husband.

Mrs. Lewis claims the trial court erroneously found her admissions in the workers’

compensation case dispositive of her employment status. In support of her claim,

Mrs. Lewis directs this Court to Dye v. Ipik Door Co., Inc., 570 So.2d 477, 479

(La. App. 5th Cir. 1990) and Harris v. State ex rel. Dep’t of Pub. Safety & Corr.,

05-2647 (La. App. 1 Cir. 11/3/06), 950 So.2d 795.

In Dye, the plaintiff received workers’ compensation benefits for injuries

sustained after he was electrocuted while performing repair work on the

defendant’s premises. Id., 570 So.2d at 478. The plaintiff also filed a suit for tort

5

damages relating to his injuries. Id. The trial court granted defendant’s motion for

summary judgment, and on appeal, the Fifth Circuit reversed. The issue in Dye

was whether the plaintiff’s acceptance of workers’ compensation benefits barred

him from pursuing an action in tort.

Similarly, in Harris, the plaintiff, a respiratory therapist, began receiving

workers’ compensation benefits after she was attacked in the hospital parking lot

on her way to work. Id., 05-2647, p. 3, 950 So.2d at 798. The plaintiff filed a civil

suit, alleging intentional tort by the defendant inmate, who had escaped the

hospital before he attacked her, and negligence on the part of other named

defendants, including the Department of Public Safety and Corrections (“DPSC”).

Id. Although the plaintiff received workers’ compensation benefits, she did not

file suit against her employer pursuant to the Workers’ Compensation Act. DPSC

moved for summary judgment, arguing that the plaintiff’s “exclusive mode of

recovery” was in workers’ compensation, not tort litigation. Id.

Dye and Harris both held that acceptance of benefits does not constitute the

recipient’s admission or confession of employment status at the time the recipient

sustained injuries. Mrs. Lewis contends that Dye and Harris are applicable

because the plaintiffs received workers’ compensation benefits and were also

permitted to seek an action in tort for damages against the defendant who paid the

benefits.

In granting Acme’s motion for summary judgment, the trial court disagreed

with the assertion that Dye and Harris are analogous to the present matter. The

6

trial court noted that the issue in Dye and Harris involved the acceptance of

workers’ compensation benefits, not, as presented here, the full and final

settlement of a workers’ compensation claim. We agree.

The present case is factually distinguishable from Dye and Harris. Unlike

Mrs. Lewis, the plaintiffs in Dye and Harris did not file formal workers’

compensation claims against their employers in workers’ compensation court.

The plaintiffs did not file pleadings, under oath, representing that he or she was in

the course and scope of his or her employment at the time of their injuries.

Moreover, they did not obtain a final judgment of dismissal approving a settlement

of their workers’ compensation claims based on the plaintiffs’ status as employees

of the defendants and being injured in the course of their employment.

Mrs. Lewis further asserts that determination of her employment status calls

for a legal conclusion that the court must decide based on the facts of the case;

therefore, any opinion Mrs. Lewis or Acme has relating to her employment status

at the time of the accident is irrelevant. Because the parties settled the workers’

compensation claim, and the trial court found the Settlement dispositive of her

employment status, Mrs. Lewis avers that no court has conducted a proper analysis

to determine whether she was in the course and scope of her employment at the

time of the accident.3 According to Mrs. Lewis, had the trial court conducted the

proper analysis, it would have found that she was not acting in the course and

3 To the extent Mrs. Lewis argues the workers’ compensation court erred in confirming the

compromise and settlement of her workers’ compensation claim without conducting an
independent analysis on the issue of her employment status, we find the issue is not properly
before us. The workers’ compensation court entered a Judgment of Dismissal on July 29, 2019.
Mrs. Lewis did not appeal the judgment and therefore, the judgment is final.

7

scope of her employment at the time of the accident; and therefore, it would have

also found summary judgment inappropriate.

Acme maintains, however, that the trial court did, in fact, conduct the proper

legal analysis in that the trial court reviewed the evidence submitted on summary

judgment and determined the issue of Mrs. Lewis’ employment status was res

judicata. Acme asserts that the Petition for Compromise, the Release, and Mrs.

Lewis’ Answers to Interrogatories establish that Mrs. Lewis “unequivocally” stated

she was in the course and scope of her employment.

The Petition for Compromise stated that “[o]n December 12, 2018, while

working within the course and scope of her employment with Acme Truck Line,

Inc., [Mrs. Lewis] was a passenger in Rico Lewis’ vehicle.” In connection with

the Petition for Compromise, Mrs. Lewis executed an affidavit certifying that all

the facts alleged in the Petition to Compromise were true and correct to the best of

her knowledge, information, and belief. Similarly, the Release, which she also

personally executed, states that “[Mrs. Lewis] acknowledges that she was working

within the course and scope of her employment with Acme Truck Line, Inc. when

the subject accident occurred….” In her Answers to Interrogatories, Mrs. Lewis

indicated again that she was acting in the course and scope of her employment.

Moreover, she detailed the duties she performed in connection with her

employment. Mrs. Lewis stated, “[o]n December 12, 2018, [she] wrote up the

paper work, helped secure the load, fueled the truck, and communicated with

terminal 37. . . .”

8

Mrs. Lewis suggests that the multiple admissions she made as to her

employment status are inconsequential. We disagree. Such a position not only

ignores the multiple assertions made in the workers’ compensation proceedings

upon which the Settlement was based, but it also ignores the express language of

Louisiana’s Workers’ Compensation Act.

In general, under the Louisiana Workers’ Compensation Act, an employee’s

exclusive remedy against his employer is workers’ compensation benefits. See La.

R.S. 23:1032(A). Subsection (A)(1)(a) states:

Except for intentional acts provided for in Subsection B, the rights
and remedies herein granted to an employee… for which he is
entitled to compensation under this Chapter, shall be exclusive of all
other rights, remedies, and claims for damages…

La. R.S. 23:1032(A)(1)(emphasis added). The statute was amended in 1989, and

added subsection (A)(1)(b), which provides that “[t]his exclusive remedy is

exclusive of all claims, including any claims that might arise against his employer,

or any principal or any officer, director, stockholder, partner, or employee of such

employer or principal under any dual capacity theory or doctrine.” La. R.S.

23:1032(A)(1)(b) The Louisiana Supreme Court explained Louisiana’s Workers’

Compensation Act as follows:

Under the workers’ compensation law, the employee relinquishes his
right to be made whole in a civil suit, while the employer cedes his
available tort defenses. Deshotel v. Guichard Operating Co., Inc., 03–
3511 (La. 12/17/04), 916 So.2d 72, 77. Generally speaking, the
workers’ compensation regime represents a quid pro quo compromise
of interests, whereby “the employee receive[s] an absolute right to
recover limited benefits in exchange for the employer’s tort
immunity.” See Harris v. State, Dept. of Public Safety & Corrections,
05–2647 (La. App. 1 Cir. 11/3/06), 950 So.2d 795, 799, writ denied,
06–2817 (La. 3/9/07), 949 So.2d 440.

9

Benoit v. Turner Indus. Grp., L.L.C., 11-1130, p. 7 (La. 1/24/12), 85 So.3d 629,

634.

In this civil suit, Mrs. Lewis alleges that Acme was negligent and at fault

for: (1) failing to provide a safe working environment; (2) failing to adequately

supervise and maintain its property; (3) failing to provide adequate policies and

procedures for the safety of those on its property; (4) failing to follow the policies

and procedures in place to provide for the safety of those on its property; and (5)

any and all other acts of negligence that may be proven at trial. However,

Louisiana courts have consistently held that the legislature intended La. R.S.

23:1032 “to exclude all non-intentional tort claims of an employee against an

employer for injuries, including those that resulted from the conditions of the

employer’s leased premises.” Sam v. Villavaso, unpub., 06-0908, p. 3, (La. App. 4

Cir. 11/2/06), 2006 WL 6913029 *3 (emphasis added); See also Bates v. King, 04-

1591 (La. App. 3 Cir. 4/6/05), 899 So.2d 202; Dufrene v. Ins. Co. of State of Pa.,

01-47 (La. App. Cir. 5 Cir. 5/30/01), 790 So.2d 660; Martin v. Stone Container

Corp., 31,544 (La. App. 2 Cir. 2/24/99), 729 So.2d 726; and Douglas v. Hillhaven

Rest Home, Inc., 97-0596 (La. App. 1 Cir. 4/8/98), 709 So.2d 1079.

We further note that as a matter of policy, to permit an employee to recover

against her employer pursuant to the workers’ compensation act by way of

settlement, and then later dispute her employment status for the purpose of

recovering additional damages in tort offers no incentive for employers to settle an

10

employee’s workers’ compensation claim. Additionally, such a scenario frustrates

the legal efficacy of the law of compromise and settlement.

Mrs. Lewis avers that Acme relies on the Settlement to shield itself in this

civil suit because whether she was in the course and scope of her employment is a

fact issue. She notes that Acme cannot produce any payroll records for the days

prior to and including the date of the accident. She further claimed that she did not

have a license to drive a tractor trailer, like the one involved in this accident. She

alleges that she was simply a passenger on the date of the accident and did not help

Mr. Lewis in any material way. Furthermore, Mr. Lewis was the only one paid for

the trip.

Nevertheless, this case is distinguishable from the cases Mrs. Lewis cites. In

Dye and Harris, there was no settlement or order approving settlement like in this

case. Mrs. Lewis, while represented by counsel in the workers’ compensation

proceedings, made multiple assertions that she was in the course and scope of her

employment at the time of the accident. She acknowledged that she understood the

Release she signed, and that by signing the Release she was waiving all claims she

had or may have against Acme. Consequently, the workers’ compensation judge

entered an order of approval and judgment of dismissal based on Mrs. Lewis’

statements as to her employment status and her acknowledgment that she

understood the contents of the Settlement and the legal effects of settling her

workers’ compensation claim. The order of approval also included a reservation

by Acme of its immunity defense pursuant to La. R.S. 23:1032, in the event Mrs.

11

Lewis sought remedies in tort. The July 29, 2019 judgment of dismissal, dismissed

Mrs. Lewis’ claims with prejudice.

Mrs. Lewis did not appeal the judgment of dismissal, and therefore, it

became a final, valid judgment. The Louisiana Workers’ Compensation Act

provides the exclusive remedy for an employee against her employer where the

terms of the statute are met. Pursuant to La. R.S. 23:1032, Mrs. Lewis’ remedy

was limited to workers’ compensation. Thus, Mrs. Lewis was precluded from

asserting claims against Acme in tort when she entered into the court approved

settlement.

We find the trial court was correct to find Mrs. Lewis’ employment status

was established pursuant to the Settlement in the workers’ compensation case.

The Doctrine of Res Judicata

Mrs. Lewis next contends that the trial court erred in finding that the

doctrine of res judicata barred her tort claims against Acme. Specifically, Ms.

Lewis argues that the doctrine of res judicata does not apply to her tort action

because: (1) the parties do not appear in the same capacities in both actions; and

(2) the “thing demanded” is not the same.

“In general, the doctrine of res judicata precludes re-litigation of claims and

issues arising out of the same circumstances when there is a final judgment.” R&N

Ursuline Family Ltd. P’ship v. Pas a Vendre, LLC, 17-0646, p. 4 (La. App. 4 Cir

5/19/18), 294 So.3d 1, 3. The following elements must be satisfied to invoke the

doctrine of res judicata and bar a second action:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are
the same; (4) the cause or causes of action asserted in the second suit

12

existed at the time of final judgment in the first litigation; and (5) the
cause or causes of action asserted in the second suit arise out of the
transaction or occurrence that was the subject matter of the first
litigation.

Schiff v. Pollard, 16-0801, p. 9-10 (La. App. 4 Cir. 6/28/17), 222 So.3d 867, 875.

Pursuant to La. R.S. 13:4231(1), “[i]f the judgment is in favor of the

plaintiff, all causes of action existing at the time of final judgment arising out of

the transaction or occurrence that is the subject matter of the litigation are

extinguished and merged in the judgment.” This Court explained that “while

ordinarily premised on a final judgment, the doctrine of res judicata also applies

where there is a compromise or settlement of a disputed claim or matter that has

been entered into between the parties.” Joseph v. Huntington Ingalls Inc., 18-

02061, p. 3 (La. 1/29/20), -- So.3d --, 2020 WL 499939, *3 (citing Ortego v. State,

Dept. of Transp. and Development, 96-1322, p. 7 (La. 2/25/97), 689 So.2d 1358,

1363). Thus, “a compromise precludes the parties from bringing a subsequent

action based upon the matter that was compromised.” La. C.C. art. 3080.

It is undisputed that the workers’ compensation order of approval and

judgment of dismissal is a valid and final judgment. Therefore, we determine

whether the remaining elements to invoke the doctrine of res judicata are met in

this case.

Identity of Parties

The third requirement of res judicata is that the parties in both suits must be

the same. There must be “identity of parties” in order to find the doctrine of res

judicata will preclude a subsequent suit. Burguieres v. Pollingue, 02-1385, p. 8

(La. 2/25/03), 843 So.2d 1049, 1054. “This requirement does not mean that the

13

parties must have the same physical identity, but that the parties must appear in the

same capacities in both suits.” Id.

In Burguieres, the testator’s children brought an action to annul a probated

testament against the testator’s sister in her capacity as the executrix of her

brother’s succession. Id., 02-1385, p. 11, 843 So.2d at 1055. The testator’s

children later sued the testator’s sister and her husband for breach of fiduciary

duties that occurred prior to the testator’s death and allegedly tortious acts

committed as executrix. Id. The Louisiana Supreme Court held that because the

second suit involved the sister’s actions before the testator died, the second suit did

not implicate her in her capacity as executrix of her brother’s succession. Id.

“Because of this difference in capacities, there is a lack of identity of the parties

between the two suits.” Id., 02-1385, p. 12, 843 So.2d at 1056.

Mrs. Lewis claims that res judicata does not apply because she did not sue

Acme in the same capacity in the instant lawsuit as in the workers’ compensation

case.4 Mrs. Lewis argues that she sued Acme as her employer in the workers’

compensation case. By contrast, she contends that she sued Acme, in this civil

suit, for its failure to have adequate policies and procedures in place to provide for

the safety of those on its property and its failure to adequately supervise and

maintain its property. As previously mentioned, however, courts have routinely

held that the legislature intended La. R.S. 23:1032 to limit the injured employee’s

4 Acme argues that Mrs. Lewis never specifically argued in the trial court that res judicata does

not apply because she sued Acme in different capacities; thus, Acme asserts that Mrs. Lewis is
precluded from challenging the application of res judicata on appeal. This Court has held, that
“the appellate court may consider an issue that is raised for the first time on appeal if its
resolution is necessary to render a just, legal and proper judgment.” Keeping Our Legacy Alive,
Inc. v. Cent. St. Matthew United Church of Christ, 17-1060, p. 13 (La. App. 4 Cir. 10/31/18);
318 So.3d 130, 138 (internal quotation omitted). The Official Revision Comments of La. C.C.
art. 2164 also state that “the appellate court has complete freedom to do justice on the record
irrespective of whether a particular legal point or theory was made, argued, or passed on by the
court below.” Id., 17-1060, p. 14, 318 So.3d at 138-39 (internal quotation omitted).

14

remedy to workers’ compensation for all non-intentional tort claims against an

employer, “including those that resulted from the conditions of the employer’s

leased premises.” Sam, unpub., 06-0908, p. 3, 2006 WL 6913029 *3.

A review of the Petition to Compromise and the Petition for Damages

demonstrate that Mrs. Lewis sued Acme in both actions in its individual capacity

as a trucking company for its allegedly tortious actions and/or inactions committed

on December 12, 2018.

Additionally, Mrs. Lewis asserts that the parties in the workers’

compensation case are different from those in the present civil suit. She states that

in the workers’ compensation case she sued Acme’s workers’ compensation

carrier, Continental; whereas, in her civil suit she sued Acme’s liability carrier,

Hudson Insurance Company (“Hudson”). Mrs. Lewis claims there is no identity of

parties because Hudson was not a party to the workers’ compensation suit.

This same argument was rejected by the appellate court in Roland v. Owens,

00-1846 (La. App. 5 Cir. 4/24/01), 786 So.2d 167. In Roland, the Fifth Circuit

concluded that the insurer’s involvement stemmed from its relationship as the

insurer of the defendant. Id., 00-1846, p. 5, 786 So.2d at 170. The court in Roland

held that “the insured and the insurer not only share the same quality as parties, but

in essence their identities are virtually merged into one, to the extent of the policy

limits.” Id. (quoting Arthur v. Zapata Haynie Corp., 95-956 (La. App. 3rd Cir.

1/22/97), 690 So.2d 86, 90). In this case, Acme and Hudson, as Acme’s liability

carrier, “share the same quality as parties” for the purpose of res judicata.

Therefore, we find no merit to Mrs. Lewis’ argument that res judicata does not

apply because Hudson was not a party to the workers’ compensation suit.

15

The Second Action Asserts a Cause of Action Arising out of the Transaction
or Occurrence which was the Subject Matter of the First Action

Finally, Mrs. Lewis claims res judicata does not apply because the damages

sought in the workers’ compensation case are not the same as in the tort action.

According to Mrs. Lewis, her workers’ compensation claim sought damages for

medical expenses and loss of earnings, whereas in the tort action, she sought

damages for past, present, and future physical and mental pain and suffering.

Because workers’ compensation law does not allow plaintiffs to demand the same

relief, Mrs. Lewis avers that the quality of her demands cannot be considered the

same. In support, Mrs. Lewis relies on Dornak v. Lafayette Gen. Hosp., 399 So.2d

168 (La. 1981). Acme correctly notes that Mrs. Lewis’ reliance on Dornak is

misplaced in that the proposition for which Mrs. Lewis cites Dornak is based on an

earlier and outdated version of La. R.S. 13:4231. Therefore, Dornak has no bearing

on the instant matter.

Prior to La. R.S. 13:4231’s revision in 1990, a “second action would be

barred by the defense of res judicata only when the plaintiff [sought] the same

relief based on the same cause or grounds.” See La. R.S. 13:4231—Official

Revision Comments (a)(1990). This interpretation of res judicata was determined

to be “too narrow to fully implement the purpose of res judicata which is to foster

judicial efficiency and also to protect the defendant from multiple lawsuits.” Id.

La. R.S. 13:4231 was amended to eliminate the requirement that the relief

demanded be the same. Burguieres, 02-1385, p. 7, 843 So.2d at 1053.

Specifically, La. R.S. 13:4231 was amended to include “all causes of

action…arising out of the transaction or occurrence that is the subject matter of the

litigation.” See La. R.S. 13:4231. The inquiry is “whether the second action

16

asserts a cause of action which arises out of the transaction or occurrence which

was the subject matter of the first action.” La. R.S. 13:4231—Official Revision

Comments (a)(1990). The official comments further state:

For purposes of res judicata it would not matter whether the cause of
action asserted in the second action was the same as that asserted in
the first or different as long as it arose out of the transaction or
occurrence that was the subject matter of the first action.

Id.

In the Petition for Compromise that Mrs. Lewis filed in the workers’

compensation suit, Mrs. Lewis stated:

On December 12, 2018, while working within the course and scope of
her employment with Acme Truck Line, Inc., Claimant was a
passenger in Rico Lewis’ vehicle. As they were attempting to make a
U-turn, their vehicle was struck by another vehicle. As a result of this
collision, Claimant alleges she suffered injuries including headaches,
neck pain, back pain, knee pain, and left shoulder pain.

Subsequently, Mrs. Lewis filed a civil suit, alleging she sustained injuries arising

out of the same occurrence on December 12, 2018. In her Petition for Damages,

Mrs. Lewis detailed the following:

On or about December 12, 2018, Petitioner RICO LEWIS, was
driving an 18-wheeler tractor-trailer for ACME TRUCK LINE, INC.
when he was turning onto private property. At the time, KIM LEWIS,
was a passenger in the 18-wheeler tractor trailer. At or around the
same time, Defendant ERIN WIEBER was driving northbound on
Paris Road when suddenly and without warning she struck the 18-
wheeler tractor-trailer containing RICO LEWIS and KIM LEWIS at a
high rate of speed.

The December 12, 2018 accident is the subject matter of both Mrs. Lewis’

workers’ compensation suit and the subject matter of the present action in tort.

Therefore, the requirement that the cause of action asserted in Mrs. Lewis’ civil

suit arise out of the same occurrence as the subject matter of her workers’

compensation suit has been met.

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The record reflects that the requirements of res judicata are satisfied in this

case considering: the July 29, 2019 judgment is a valid and final judgment; the

parties are the same; the causes of action asserted in the present tort action existed

on July 29, 2019, when the workers’ compensation judge issued the judgment of

dismissal in the first litigation filed by Mrs. Lewis; and the causes of action

asserted in this litigation arose out of the same transaction or occurrence that was

the subject of the workers’ compensation suit. Thus, we find the trial court did not

err when it determined that res judicata precludes Mrs. Lewis from asserting a

claim in tort.

DECREE

For the above reasons, we find the trial court properly granted Acme’s

motion for summary judgment. Accordingly, we affirm the trial court’s granting

of summary judgment as reflected in the April 14, 2021 judgment, as amended on

April 21, 2022.5

AFFIRMED

5 Supra, footnote 2.

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