Stewart Head v. Continental Casualty Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-236

STEWART HEAD, ET AL.

VERSUS

CONTINENTAL CASUALTY COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20050138
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

AFFIRMED.

John Fayne Wilkes, III
Lisa Eve Mayer
Borne, Wilkes
P. O. Box 4305
Lafayette, LA 70502-4305
(337) 232-1604
Counsel for Intervenors/Appellants:
Risk Management, Inc.

Joel Edward Gooch
Allen & Gooch
P. O. Drawer 3768
Lafayette, LA 70502-3768
(337) 291-1210
Counsel for Defendants/Appellees:
Continental Casualty Company
Kyle Sherman
Charles Brandt

William Stafford Neblett
Neblett, Beard & Arsenault
P. O. Box 1190
Alexandria, LA 71309-1190
(318) 487-9874
Counsel for Plaintiffs/Appellees:
Stewart Head
Stacy Head

EZELL, JUDGE.

This case involves a legal malpractice suit filed by Stewart and Stacy Head

against Kyle Sherman and Charles Brandt, d/b/a the Law Offices of Charles Brandt,

and Continental Casualty Company. The suit arose from a failure to timely file

another suit concerning an automobile accident Stewart Head was involved in. In this

appeal, Risk Management, Inc. appeals the judgment of the trial court granting an

exception of no cause of action in favor of the Heads, the prior attorneys, and

Continental, thereby dismissing Risk Management’s intervention in the suit between

the other parties. For the following reasons, we affirm the decision of the trial court.

On July 24, 2002, Stewart Head was driving a vehicle owned by the City of

Abbeville, in the course and scope of his employment, when his vehicle was struck

by Luby Landry. Mr. Head suffered injuries to his back, requiring surgery. Mr. Head

was paid medical and indemnity benefits by Risk Management, the City of

Abbeville’s workers’ compensation insurer. The Heads chose Mr. Sherman as their

attorney and filed suit against Mr. Landry. Risk Management intervened in the suit

against Mr. Landry to recover $132,299.00 in medical and compensation benefits

paid to Mr. Head resulting from the accident. However, the suit against Mr. Landry

was not filed timely and was dismissed on an exception of prescription.

The Heads then filed this suit against Mr. Sherman, his law firm, and their

malpractice insurer, for the failure to timely file the previous suit. Risk Management

again intervened, claiming that it was unable to recover its subrogation claim against

Mr. Landry because of the actions of Mr. Sherman, and seeking to recover those

amounts in the current malpractice claim. Both Mr. Sherman and the Heads filed

exceptions of no cause of action, which were granted by the trial court, dismissing

Risk Management’s claims. From that decision, Risk Management appeals.

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Risk Management asserts as its lone assignment of error that the trial court

erred in granting the exception of no cause of action. We disagree.

The function of the peremptory exception of no cause of action is to test the

legal sufficiency of the petition, which is done by determining whether the law

affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru,

Inc. v. Subaru, Inc., 616 So.2d 1234, 1238 (La.1993). No evidence may be

introduced to support or controvert an exception of no cause of action. La. Code

Civ.P. art. 931. Consequently, the court reviews the petition and accepts

well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections,

00-2882 (La. 5/15/01), 785 So.2d 803; Everything on Wheels Subaru, 616 So.2d

1234. The issue at the trial of the exception is whether, on the face of the petition, the

plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813 (La.

5/23/94), 637 So.2d 127.

Louisiana Code of Civil Procedure Article 1091 states that:

A third person having an interest therein may intervene in a
pending action to enforce a right related to or connected with the object
of the pending action against one or more of the parties thereto by:

(1) Joining with plaintiff in demanding the same or similar relief
against the defendant;

(2) Uniting with defendant in resisting the plaintiff’s demand; or

(3) Opposing both plaintiff and defendant.

Louisiana Revised Statutes 23:1101 states, in pertinent part (emphasis added):

B. Any person having paid or having become obligated to pay
compensation under the provisions of this Chapter may bring suit in
district court against such third person to recover any amount which he
has paid or becomes obligated to pay as compensation to such employee
or his dependents. . . .

C. For purposes of this Section, “third person” shall include any
party who causes injury to an employee at the time of his employment
or at any time thereafter provided the employer is obligated to pay

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benefits under this Chapter because the injury by the third party has
aggravated the employment related injury.

It is clear from a reading of the above statute that Risk Management does not

have a cause of action against Mr. Sherman and Continental. Simply put, the alleged

legal negligence committed by Mr. Sherman did not cause an injury to Mr. Head that

obligated Risk Management to pay any benefits, nor did it aggravate the physical

injury which created the obligation. The injury that obligated Risk Management to

pay Mr. Head was separate from the alleged malpractice and was caused by Mr.

Landry alone. Therefore, Mr. Sherman and his firm are not “third persons” that can

be sued by Risk Management under La. R.S. 23:1101, and Risk Management is not

legally entitled to the relief sought1.

The decision of the trial court is hereby affirmed. Costs of this appeal are

assessed against Risk Management.

AFFIRMED.

1
Risk Management had the right to file suit against Mr. Landry because he caused an injury
to Mr. Head that obligated it to pay Mr. Head benefits. However, it chose not to exercise that right
and file suit against Mr. Landry independently, but rather, it chose to intervene in the Heads’ suit,
which was prescribed.

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