Mary Ortego v. Progressive Gulf Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-42

MARY ORTEGA

VERSUS

PROGRESSIVE GULF INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 86,293
HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Phyllis M. Keaty, Judges.

AFFIRMED.

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

Sidney J. Angelle
Erik L. Vollenweider
Lobman, Carnahan, Batt & Angelle
400 Poydras Street, Suite 2300
New Orleans, Louisiana 70130
(504) 586-9292
Counsel for Defendant/Appellee:
Allmerica Financial Benefit Insurance Company

George A. Flournoy
Flournoy & Doggett
Post Office Box 1270
Alexandria, Louisiana 71309-1270
(318) 487-9858
Counsel for Plaintiff/Appellee:
Mary Ortega

S. Curtis Mitchell
Casler, Bordelon & Lawler
11550 Newcastle Avenue, Suite 200
Baton Rouge, Louisiana 70816
(318) 840-5075
Counsel for Defendants/Appellees:
Terry Weaver
Phillips Distributing, LLC
Progressive Gulf Insurance Company

KEATY, Judge.

Intervenor appeals a judgment of the trial court granting defendants’ motions

for summary judgment and dismissing its petition of intervention. We affirm.

PROCEDURAL HISTORY

Mary Ortega’s vehicle was rear ended on March 11, 2013. She filed a

petition for damages on July 24, 2013, against the other driver, Terry Weaver

(Weaver), Weaver’s employer, Phillips Distributing, LLC (Phillips), and Phillips’

automobile liability insurer, Progressive Gulf Insurance Company (Progressive),

seeking recovery against them for the damages she alleged she sustained in the

accident. Ortega later filed a supplemental and amending petition naming Hanover

Insurance Group and/or Allmerica Financial Benefit Insurance Company

(Allmerica), Weaver’s automobile liability insurer, as an additional defendant. On

July 28, 2014, Liberty Mutual Fire Insurance Company (Liberty Mutual), the

workers’ compensation carrier of Ortega’s former employer, Cantu Services, Inc.

(Cantu Services), filed a petition for intervention into Ortega’s personal injury suit,

alleging that the automobile accident occurred while Ortega was “working within

the course and scope of her employment” and seeking reimbursement for the

medical and indemnity benefits that it had paid to or on behalf of Ortega.

Defendants Allmerica and Weaver, Phillips, and Progressive sought to have

Liberty Mutual’s intervention dismissed by summary judgment on the basis that

Ortega was not in the course and scope of her employment during the accident that

formed the basis of her personal injury suit. Defendants attached to their

respective motions for summary judgment copies of Ortega’s petition for damages,

Liberty Mutual’s original and supplemental and amending petitions for

intervention, as well as a copy of Ortega’s March 30, 2015 deposition.

Liberty Mutual sought to continue the September 2015 hearing on

defendants’ motions for summary judgment due to scheduling conflicts; however,

its motion to continue explained that the defendants opposed the continuance.

After the trial court denied its motion to continue, Liberty Mutual filed a

memorandum in opposition to defendants’ motions for summary judgment on the

basis of La.R.S 23:1101. Therein, Liberty Mutual claimed that the instant suit

arose from an on-the-job injury that Ortega suffered on February 23, 2011, and that

Liberty Mutual had paid medical and indemnity benefits arising from that accident

to Ortega. Liberty Mutual submitted that the Louisiana workers’ compensation

scheme “allow[ed] either the injured worker or the employer/carrier or both to

bring an action for damages against any third party who may be at fault for the

injuries for which compensation benefits were paid.” According to Liberty Mutual,

defendants’ motions should be denied because questions of fact remained as to the

nature and extent of Ortega’s injuries, “including the relationship between a 2011

workplace accident and the aggravation of same by the 2013 motor vehicle

accident” and because additional discovery was needed to resolve those questions

of fact. Liberty Mutual attached to its opposition a copy of an unsigned March 20,

2013 report that Dr. Clark Gunderson, an orthopedist who examined Ortega the

previous day, sent to Ortega’s attorney wherein he relates his impression that

Ortega “sustained a cervical straining type injury superimposed on the

degenerative cervical disc disease, which has increased her preaccident complaint.”

Also attached to Liberty Mutual’s opposition was a notice indicating that Ortega’s

attorney had scheduled Dr. Gunderson’s video trial deposition for September 29,

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2015. Liberty Mutual asserted that defendants’ motions for summary judgment

were “unsubstantiated,” and it requested that its costs be assessed against them.

Allmerica filed a memorandum in reply to Liberty Mutual’s opposition,

wherein it pointed out the inaccuracy in Liberty Mutual’s assertion that this action

arose from Ortega’s February 23, 2011 workplace accident. In addition, Allmerica

sought to strike the March 20, 2013 Dr. Gunderson report relied upon by Liberty

Mutual on the basis that it was not proper summary judgment evidence under

La.Code Civ.P. art. 967 because it was not a sworn affidavit or deposition, nor was

it signed by Dr. Gunderson. Allmerica also sought to strike from Liberty Mutual’s

opposition a reference made to a July 2014 subpoena it sent to Liberty Mutual

requesting Ortega’s medical records as being unsupported by any permissible

evidence. With regard to Liberty Mutual’s claim that defendants’ motions for

summary judgment should be delayed until after Dr. Gunderson’s September 29,

2015 video deposition, Allmerica pointed out that Dr. Gunderson had already been

deposed on January 29, 2015. Finally, Allmerica contended that Liberty Mutual

had no reasonable basis to request that its costs be paid by defendants.

Defendants’ motions for summary judgment were heard on September 17,

2015. After hearing arguments, the trial court granted defendants’ motions for

summary judgment in open court. In Written Reasons For Ruling signed the next

week, the trial court stated, “I find that there is no genuine issue of material fact.

Therefore, the Motion for Summary Judgment is granted.” By written Judgment

dated October 27, 2015, the trial court granted the motions for summary judgment

filed by Allmerica and Weaver, Phillips, and Progressive and dismissed Liberty

Mutual’s intervention with prejudice, declaring the judgment final for purposes of

immediate appeal. See La.Code Civ.P. art. 1915. Liberty Mutual timely appealed

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and is now before this court asserting in its sole assignment of error that the trial

court erred in dismissing its intervention because of the existence of genuine issues

of material fact.

DISCUSSION

The summary judgment procedure of La.Code Civ.P. art.
966(A)(2) “is designed to secure the just, speedy, and inexpensive
determination of every action” except in certain designated cases. It is
favored and is to be construed to accomplish those ends. Id. The trial
court shall enter summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions, together with the affidavits,
if any, admitted for purposes of the motion for summary judgment,
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)(2).

Further, and although La.Code Civ.P. art. 966(C)(2) expressly
provides that “[t]he burden of proof remains with the movant[,]” the
movant’s burden does not require him to negate all essential facts of
the adverse party’s claim if the movant will not be required to bear the
burden of proof at trial. Instead, the movant must “point out to the
court that there is an absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense.” Id.
In turn, thereafter, if “the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material fact.” Id.

On appeal, the reviewing court considers a trial court’s grant or
denial of a motion for summary judgment under the same criteria that
governed the trial court’s consideration of the motion and pursuant to
the de novo standard of review.

Baldwin v. CleanBlast, LLC, 14-1026, pp. 4-5 (La.App. 3 Cir. 2/4/15), 158 So.3d

270, 272-73, writ denied, 15-461 (La. 5/15/15), 170 So.3d 163.

Louisiana Code of Civil Procedure articles 966 and 967 do not permit
a party to use unsworn and unverified documents as summary
judgment evidence. A document that is not an affidavit or sworn to in
any way, or is not certified or attached to an affidavit, has no
evidentiary value on a motion for summary judgment.
Unifund CCR Partners v. Perkins, 12-1851, p. 8 (La.App. 1 Cir. 9/25/13), 134

So.3d 626, 632.

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Substantive Law

The Louisiana Workers’ Compensation scheme, in La.R.S. 23:1101

(emphasis added), titled “Employee and employer suits against third persons;

effect on right to compensation,” provides, in pertinent part, as follows:

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

“[Louisiana Revised Statutes] 23:1101(C) allows compensation insurers

reimbursement from persons who aggravate work-related injuries and thereby

extend the obligation to pay compensation benefits.” Ryan v. ESIF/Ryan

Const., 46,916, p. 6 (La.App. 2 Cir. 4/4/12), 88 So.3d 719, 723 (emphasis added),

writ denied, 12-1023 (La. 6/29/12), 92 So.3d 344.

Analysis

In her March 30, 2015 deposition, Ortega stated that she last worked as a

cook for Cantu Services at Fort Polk. She described a workplace accident that took

place on February 23, 2011, when she tripped and fell backwards in the kitchen as

she was moving some food storage containers. Ortega stated that after she realized

that she could no longer work, she applied for and began receiving social security

disability benefits. She was unsure of when she began collecting those benefits,

but she believed it was in the summer of 2011 or 2012.1 Ortega explained that she

1
At the summary judgment hearing, counsel for Allmerica stated that Ortega “was out on
disability from Cantu since 2012[,] almost a year before the accident.”

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had suffered from severe neck pain since her workplace accident and that

Dr. George Williams, her orthopedic surgeon, had recommended that she undergo

a cervical diskectomy and fusion in October 2012. According to Ortega, the 2013

rear-end collision made subject of this lawsuit occurred when she was driving her

ex-husband to the drugstore to pick up a prescription. She stated that she was not

engaged in any type of work at the time, and she confirmed that she had not

worked for Cantu Services since her February 2011 workplace accident.

At the summary judgment hearing, counsel for Liberty Mutual admitted that

Ortega was not in the course and scope of her employment with Cantu Services

when the automobile accident occurred in 2013, and he claimed that the assertion

made in his petition for intervention was a “mis-draft.” In addition, Liberty Mutual

was not able to rebut Ortega’s counsel’s statement that Liberty Mutual had not paid

any medical expenses since the car accident. It argued, however, that because

La.R.S. 23:1101 gave it the right to sue a potentially-liable third party, the amount

of money it could recover via its intervention was simply “a matter of proof” and,

thus, its intervention should not be dismissed on summary judgment. The trial

court disagreed, and so do we.

Defendants filed motions for summary judgment, not exceptions of no right

of action, and they supported their motions with competent evidence which

showed that Liberty Mutual’s intervention was premised on inaccurate factual

assertions and that it could not prove that it incurred any additional expenses as a

result of Ortega’s 2013 automobile accident. When, at the summary judgment

hearing, the trial court sought proof from Liberty Mutual that “but for” the

automobile accident, Ortega would have gotten better and it would not have been

paying her compensation benefits, Liberty Mutual was unable to provide any such

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proof. Further, as noted by the trial court, given the fact that Dr. Gunderson was

already deposed in January of 2015, there was plenty of time for Liberty Mutual to

ask him, or any of Ortega’s other treating physicians, whether and/or how Ortega’s

2013 automobile accident aggravated her February 2011 workplace injury.

The evidence shows that Ortega’s pain had been steadily increasing since

her 2011 workplace accident. In fact, she had been diagnosed with spinal stenosis,

conservative treatment had failed to provide any significant relief of her symptoms,

and surgery had been recommended before the March 2013 automobile accident

occurred. At a trial on the merits, Liberty Mutual would have the burden of

proving its intervention. Thus, when faced with defendants’ properly supported

motions for summary judgment, it was incumbent upon Liberty Mutual “to

establish that he will be able to satisfy his evidentiary burden of proof at trial.”

Baldwin, 158 So.3d at 273. It did not do so. Therefore, after having performed a

de novo review, we conclude that the trial court properly granted summary

judgment in favor of defendants.

CONCLUSION

For the foregoing reasons, the judgment granting the motions for summary

judgment filed on behalf of Allmerica Financial Benefit Insurance Company and

Terry Weaver, Phillips Distributing, LLC, and Progressive Gulf Insurance

Company dismissing, with prejudice, the petition of intervention filed by Liberty

Mutual Insurance Company is affirmed. All costs of this appeal are assessed

against Liberty Mutual Insurance Company.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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