Anthony J. Beslin v. Anadarko Petroleum Corp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 11-1523

ANTHONY J. BESLIN

VERSUS

ANADARKO PETROLEUM CORP., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 84,457
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy Howard
Ezell, Judges.

REVERSED AND RENDERED.

Dan Boudreaux
Law Offices of Keith R. Giardina
9100 Bluebonnet Centre Blvd., Suite 300
Baton Rouge, LA 70809
(225) 293-7272
Counsel for Intervenor/Appellant:
Liberty Mutual Insurance Co.

Christopher S. Mann
Lance M. Sannino
Ian Alexander Macdonald
Jones, Walker, Waechter, Poitevent,
Carrère & Denègre, L.L.P.
201 St, Charles, Ave., 47th Floor
New Orleans, LA 70170-5100
(504) 582-8000
Counsel for Defendants/Appellees:
Van S. Spinks
Grey Wolf Drilling Company, L.P.
Grey Wolf Holdings Company

Bennett Boyd Anderson, Jr.
Keith P. Saltzman
Anderson & Dozier
P. O. Box 82008
Lafayette, LA 70598-2008
(337) 233 -3366
Counsel for Plaintiff/Appellee:
Anthony J. Beslin

Deborah DeRoche Kuchler
Leigh Ann T. Schell
Kuchler, Polk, Schell, Weiner
& Richeson, L.L.C.
1615 Poydras St., #1300
New Orleans, LA 70112
(504) 592-0691
Counsel for Defendant/Appellee:
Anadarko Petroleum Corp.

PICKETT, Judge.

Intervenor appeals grant of summary judgment in favor of third-party

defendant, dismissing intervenor’s claims against defendant. For the reasons set

forth below, we reverse the judgment and remand for further proceedings.

FACTS

Anthony Beslin was injured in the course and scope of his employment with

Offshore Energy Services, Inc. (OES). Liberty Mutual Insurance Company

(Liberty) issued a policy for workers’ compensation insurance in favor of OES and

paid workers’ compensation benefits to or on behalf of Mr. Beslin. Mr. Beslin

filed suit against Grey Wolf Drilling Company, L.P. (Grey Wolf) and other

defendants to recover damages he suffered as a result of the accident.

Liberty intervened in Mr. Beslin’s lawsuit, seeking reimbursement for the

workers’ compensation disability benefits and medical expenses it paid to or on

behalf of Mr. Beslin and that it is entitled to offset future disability payments and

medical expenses which might become due Mr. Beslin. Grey Wolf asserted in its

Answer, “Intervenor has failed [to] state a cause of action against Grey Wolf for

which relief can be granted,” then denied each allegation set forth in Liberty’s

Petition of Intervention for various reasons. Thereafter, Mr. Beslin and Grey Wolf

settled the law suit without Liberty’s knowledge. Other named defendants had

been dismissed.

At the time Mr. Beslin was injured, OES was performing services on a land

rig pursuant to a Master Service Contract with Anadarko Petroleum Corporation.

The rig was owned by Grey Wolf. Anadarko contracted the rig and drilling

services from Grey Wolf. The Master Service Contract required OES to provide

workers’ compensation insurance and also required OES’s insurers to waive their

rights of subrogation against Anadarko and its subcontractors, which included

Grey Wolf.

To satisfy the requirements of the Master Service Contract, OES obtained an

insurance policy from Liberty that included an endorsement entitled “Waiver of

Our Right to Recover from Others Endorsement” which read:

We have the right to recover our payments from anyone liable for an
injury covered by this policy. We will not enforce our right against
the person or organization named in the Schedule. (This agreement
applies only to the extent that you perform work under a written
contract that requires you to obtain this agreement from us).

The “Schedule” on this endorsement provided:

All persons or organizations that are parties to a contract that requires
you [OES] to obtain this agreement, provided you executed the
contract before the loss.

Liberty and Grey Wolf filed cross motions for summary judgment. Grey

Wolf urged it was entitled to summary judgment dismissing Liberty’s claims

because Liberty waived its right to reimbursement in the policy of workers’

compensation insurance it issued to Mr. Beslin’s employer. The trial court granted

Grey Wolf’s motion for summary judgment and denied Liberty’s motion for

summary judgment. Liberty appeals.

ASSIGNMENT OF ERRORS

Liberty assigns three errors in which it argues:

(1) The trial court erred in not applying La.R.S. 23:1102(C)(1)1;

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Louisiana Revised Statutes 23:1102(C)(1) provides:

When a suit has been filed against a third party defendant in which the
employer or his insurer has intervened, if the third party defendant or his insurer
fails to obtain written approval of the compromise from the employer or his
insurer at the time of or prior to such compromise and the employee fails to pay to
the employer or his insurer the total amount of compensation benefits and medical
benefits out of the funds received as a result of the compromise, the third party
defendant or his insurer shall be required to reimburse the employer or his insurer
to the extent of the total amount of compensation benefits and medical benefits
previously paid to or on behalf of the employee to the extent said amounts have
not been previously paid to the employer or his insurer by the employee pursuant
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(2) The trial court erred in granting summary judgment because
Grey Wolf did not affirmatively plead the waiver of
subrogation as a defense in its answer;

(3) Summary judgment was improperly granted because genuine
issues of material fact exist as to whether Grey Wolf is entitled
to judgment as a matter of law.

DISCUSSION

Finding merit in Liberty’s second assignment of error, we reverse the

judgment of the trial court. In its second assignment of error, Liberty contends the

trial court’s grant of summary judgment in favor of Grey Wolf was error because:

(1) the basis of Grey Wolf’s motion for summary judgment is an affirmative

defense that Grey Wolf was required to set forth in its Answer; (2) Grey Wolf did

not include the affirmative defense in its Answer, and (3) without the affirmative

defense, Grey Wolf failed to prove it was entitled to summary judgment.

Grey Wolf responds that it put Liberty on notice that it contested Liberty’s

right to subrogation when it asserted in its Answer, “Intervenor has failed [to] state

a cause of action against Grey Wolf for which relief can be granted.” Following

this assertion, Grey Wolf denied each allegation set forth in Liberty’s Petition of

Intervention for various reasons. No allegation in Grey Wolf’s Answer relates to

Liberty’s waiver of its right of subrogation.

Appellate courts review summary judgments de novo, using the same

criteria applied by trial courts to determine whether summary judgment is

appropriate. La. Safety Ass’n of Timbermen-Self Insurers Fund v. La. Ins. Guar.

Ass’n, 09-23 (La. 6/26/09), 17 So.3d 350. A motion for summary judgment will be

granted “if the pleadings, depositions, answers to interrogatories, and admissions

to the provisions of Subsection B of this Section. Notwithstanding such payment,
all rights of the employer or his insurer to assert the defense provided herein
against the employee’s claim for future compensation or medical benefits shall be
reserved.

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on file, together with the affidavits, if any, show that there is no genuine issue as to

material fact, and that mover is entitled to judgment as a matter of law.” La.Code

Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to

secure the just, speedy, and inexpensive determination of every action.” La.Code

Civ.P. art. 966(A)(2).

The initial burden of proof is on the movant to show that no genuine issue of

material fact exists. La.Code Civ.P. art. 966(C)(2). If the movant will not bear the

burden of proof at trial, he need not negate all essential elements of the adverse

party’s claim. He must, however, point out that there is an absence of factual

support for one or more elements essential to the claim. Id. Once the movant has

met his initial burden of proof, the burden shifts to the adverse party “to produce

factual support sufficient to establish that he will be able to satisfy his evidentiary

burden at trial.” Id.

Pursuant to La.Code Civ.P. art. 1005, a defendant’s answer “shall set forth

affirmatively . . . estoppel, extinguishment of the obligation in any manner . . . and

any other matter constituting an affirmative defense.” Article 1005 further

provides that if an affirmative defense is mistakenly designated as a peremptory

exception or a peremptory exception has been mistakenly designated as an

affirmative defense, “and if justice so requires, the court . . . shall treat the pleading

as if there had been a proper designation.”

The exception of no right of action tests whether the plaintiff is the person in

whose favor the law grants the cause of action asserted in the petition. Howard v.

Adm’rs of Tulane Educ. Fund, 07–2224 (La. 7/1/08), 986 So.2d 47. It assumes the

petition states a valid cause of action for some person and questions whether the

plaintiff in the case at issue is a member of the class that has a legal interest in the

subject matter of the litigation. Reese v. State Dep’t of Pub. Safety and Corr., 03-
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1615 (La. 2/20/04), 866 So.2d 244. All well-pleaded facts in the petition are taken

as true. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-

2275, 10-2279, 10-2289 (La. 10/25/11), ___ So.3d ___.

Liberty asserted in its Petition of Intervention that it is entitled to be

reimbursed for the workers’ compensation disability benefits and medical expenses

it paid for Mr. Beslin and that it is entitled to offset future disability payments and

medical expenses which might become due Mr. Beslin against any amounts he

recovered from third parties. This right of action is provided to workers’

compensation insurers in La.R.S. 23:1101. Accordingly, Liberty does state a right

of action in its Petition of Intervention.

The basis of Grey Wolf’s Motion for Summary Judgment is that Liberty

waived its right to reimbursement. Waiver is an affirmative defense which must be

expressly plead in the answer. Garland v. Town of Ville Platte, 198 So.2d 451

(La.App. 3 Cir. 1967). Furthermore, the exception of no right of action cannot be

used to raise an affirmative defense. Madisonville State Bank v. Glick, 05-1372

(La.App. 3 Cir. 5/3/06), 930 So.2d 263. Therefore, the proviso of Article 1005

does not assist Grey Wolf, and its failure to plead Liberty’s waiver of its right to

subrogation as an affirmative defense renders the trial court’s grant of summary

judgment erroneous.

DISPOSITION

The judgment of the trial court granting summary judgment in favor of

Grey Wolf is reversed, and this matter is remanded for further proceedings. All

costs are assessed to Grey Wolf.

REVERSED AND RENDERED.

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