Mamie Kramer v. Raymond E. Oliver

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-1494

MAMIE KRAMER

VERSUS

RAYMOND E. OLIVER, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-719-02
HONORABLE WENDELL R. MILLER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

Keith Saverio Giardina
Attorney at Law
9100 Bluebonnet Centre, Suite 300
Baton Rouge, LA 70809
(225) 293-7272
Counsel for Defendant/Appellant:
Liberty Mutual Insurance Company

Joseph Frazer Gaar, Jr.
Attorney at Law
P. O. Box 2053
Lafayette, LA 70502
(337) 233-3185
Counsel for Plaintiff/Appellee:
Mamie Kramer

Thomas Randolph Juneau
The Juneau Firm
P.O. Drawer 51268
Lafayette, LA 70505-1268
(337) 269-0052
Counsel for Defendant/Appellee:
Star Insurance Company

EZELL, Judge.

Liberty Mutual Insurance Company (Liberty Mutual ) appeals the trial court’s

judgment dismissing its claim for intervention. The trial court found that Liberty

Mutual had settled and waived its workers’ compensation lien right and that it had no

intervention right under the provisions of the uninsured/underinsured policy. Liberty

Mutual also appeals the failure of the trial court to grant a new trial based on newly

discovered evidence.

FACTS

On October 14, 2001, Mamie Kramer was involved in a serious automobile

accident. At the time, she was employed as a truck driver for Gulf Mark Energy, Inc.

(Gulf Energy). According to her original petition, Ms. Kramer was traveling

southbound on Topsy Road in Jefferson Davis Parish. At the same time, Raymond

Oliver was traveling northbound in a Ford F-150 truck. Mr. Oliver crossed the center

line, entered the southbound lane, and struck Ms. Kramer’s vehicle head-on. As a

result of the accident, Ms. Kramer sustained serious personal injuries.

Ms. Kramer filed suit against Mr. Oliver and his insurer, State Farm Insurance

Company (State Farm). A claim against Star Insurance Company (Star) , the

uninsured/underinsured motorist (UM) carrier for Gulf Energy, was also filed.

Meanwhile, Liberty Mutual, also the workers’ compensation carrier for Gulf Energy,

began paying workers’ compensation benefits to Ms. Kramer. Liberty Mutual filed

an intervention claim against all defendants and Ms. Kramer.

A settlement agreement was reached with Mr. Oliver and State Farm.

Thereafter, Ms. Kramer’s claim and Liberty Mutual’s intervention against them were

dismissed on April 21, 2004. Subsequently, Liberty Mutual stopped paying workers’

compensation benefits to Ms. Kramer, so she filed a workers’ compensation claim

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against it. On May 25, 2004, Brenda Mistrot withdrew as counsel for Liberty Mutual

in the tort proceedings, and Darrell Sims enrolled as counsel. Ms. Mistrot continued

to represent Liberty Mutual in the workers’ compensation proceedings.

On March 18, 2005, Star filed a motion for summary judgment, alleging that

its policy did not provide coverage for the claims asserted in the tort suit. Meanwhile,

the workers’ compensation matter was settled between Ms. Kramer and Liberty

Mutual for $80,000. In October 2005, a joint petition for the approval of the workers’

compensation settlement was submitted to the Office of Workers’ Compensation. On

October 31, 2005, the order was approved and signed by the workers’ compensation

judge.

On June 20, 2005, Ms. Kramer filed an opposing motion for summary

judgment, alleging that Star’s policy did provide UM coverage for the accident. On

June 30, 2005, the trial court signed a judgment denying the motion for summary

judgment filed by Star and granting the motion for summary judgment filed by Ms.

Kramer, holding that Louisiana law applied to the interpretation of the Star policy.

Later, another judgment was signed on August 15, 2005, granting Ms. Kramer’s

motion for summary judgment finding that there had not been a proper rejection of

UM coverage under Louisiana law. Therefore, Star’s insurance policy had UM limits

of one million dollars during the period of June 1, 2001, to June 1, 2002.

Star then appealed the issue to this court. In the interim, Star and Ms. Kramer

mediated the issue and a settlement was reached. On February 27, 2006, the appeal

was dismissed.

On February 21, 2006, Ms. Kramer filed a motion to dismiss the intervention

claim of Liberty Mutual and/or alternatively a motion for summary judgment. She

claimed that Liberty Mutual did not possess any intervention rights due to the

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workers’ compensation settlement and that a policy exclusion in the Star policy

specifically excluded Liberty Mutual’s intervention rights.

The trial court found that Liberty Mutual entered into a knowing and intelligent

waiver of its intervention rights by settlement. The trial court also found that Liberty

Mutual had no intervention rights by operation of law or by application of the policy

exclusions found in Star’s UM policy. Judgment was signed on March 31, 2006.

Thereafter, Liberty Mutual filed a motion for new trial claiming that it had newly

discovered evidence which indicated that the settlement with Star contemplated

Liberty Mutual’s lien claim. Ms. Kramer opposed the motion on the basis that the

evidence was not newly discovered as Liberty Mutual had the evidence prior to the

hearing. The trial court denied the motion for new trial, and Liberty Mutual appealed.

POLICY EXCLUSION

The evidence in the record indicates that the Star policy issued to Gulf Energy

contained UM insurance coverage as part of the policy. However, attached to the

policy was a general change endorsement which deleted the coverage. As discussed

earlier, the trial court found that the endorsement was ineffective because a valid

rejection, as required by Louisiana law, had not been executed. This ruling is now

final.

The insurance policy between Star and Gulf Energy contained UM provisions.

The endorsement to the policy which stated that these provisions were not applicable

is no longer effective because there was not a valid rejection of UM coverage under

Louisiana law. Since the endorsement is ineffective, the provisions are now

applicable in this case.

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The UM coverage provided by Star’s policy contained an exclusion which

provides: “B. Exclusions . . . . 2.This coverage shall not apply directly or indirectly

to benefit: a. any insurer [or] self-insurer under any workers’ compensation,

disability benefits or similar law;”.

In Travelers Ins. Co. v. Joseph, 95-200 (La. 6/30/95), 656 So.2d 1000, the

supreme court analyzed almost identical language. The supreme court held that

“[a]lthough a compensation insurer may seek reimbursement from a UM insurer, a

UM insurer may expressly exclude a compensation insurer’s reimbursement in its UM

policy under the Civil Code’s freedom to contract on all matters not forbidden by law

or public policy.” Id. at 1005. It found that the UM policy contained a valid

exclusion. See also Landry v. Martin Mills, Inc., 98-1395 (La.App. 3 Cir. 3/3/99),

737 So.2d 58, writ denied, 99-957 (La. 6/4/99), 744 So.2d 625.

Based on the jurisprudence, we find that Liberty Mutual is not entitled to

reimbursement from the proceeds of Star’s UM policy. Therefore, the trial court was

correct in granting summary judgment in favor of Ms. Kramer as the Star Policy

specifically excludes any direct or indirect benefit to the workers’ compensation

insurer. Since this finding resolves the issue between the parties, there is no need to

discuss the other assignments of error raised by Liberty Mutual.

For these reasons, the judgment of the trial court is affirmed. All costs of this

appeal are assessed to Liberty Mutual Insurance Company.

AFFIRMED.

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