Howard McClure v. City of Pineville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1460

HOWARD MCCLURE

VERSUS

CITY OF PINEVILLE

************

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2,
PARISH OF RAPIDES, NO. 03-06950,
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of Oswald A. Decuir, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

APPEAL OF DENIAL OF MOTION FOR NEW TRIAL DISMISSED;
MOTION TO DISMISS ANSWER TO APPEAL GRANTED;
SUMMARY JUDGMENT AFFIRMED.

Daniel E. Broussard, Jr.
Broussard, Bolton, Halcomb & Vizzier
Post Office Box 1311
Alexandria, Louisiana 71309
(318) 487-4589
Counsel for Plaintiff/Appellee:
Mary McClure

Thomas J. Solari
Attorney at Law
Post Office Box 3731
Lake Charles, Louisiana 70602
(337) 433-6328
Counsel for Defendant/Appellant:
City of Pineville

Randall B. Keiser
Keiser Law Firm
Post Office Box 12358
Alexandria, Louisiana 71315
(318) 443-6168
Counsel for Defendant/Appellee:
Risk Management, Inc.

Gregory E. Bodin
Russell L. Mosely
Taylor, Porter, Brooks & Phillips
Post Office Box 2471
Baton Rouge, Louisiana 70821
(225) 387-3221
Counsel for Defendant/Appellant:
Louisiana Workers’ Compensation Corporation

SULLIVAN, Judge.

This is a workers’ compensation claim under the Heart and Lung Act, La.R.S.

33:2581. The claimant’s employer appeals the grant of summary judgment in favor

of an insurer which provided workers’ compensation coverage for a period of time

during the claimant’s employment. Another workers’ compensation insurer appeals

the denial of its motion for new trial of the motion for summary judgment, and the

insurer granted summary judgment seeks to have the other insurer’s answer to appeal

dismissed. For the following reasons, we dismiss the appeal of the denial of the

motion for new trial and dismiss that insurer’s answer to appeal; the summary

judgment is affirmed.1

Facts

Howard McClure was employed by the City of Pineville (Pineville) fire

department for more than forty years. He retired in May 2000. In February 2003, he

was diagnosed with lung cancer; he died as a result of the cancer in July 2003. His

widow, Mary McClure, seeks death benefits pursuant to the provisions of the Heart

and Lung Act, La.R.S. 33:2581.

Pineville had workers’ compensation insurance with Louisiana Municipal Risk

Management Association (LMRMA) which was administered through Risk

Management, Inc. (hereinafter referred to collectively as RMI) for the period

January 1, 1987 through December 31, 1998. Louisiana Workers’ Compensation

Corporation (LWCC) provided Pineville workers’ compensation coverage for the

period January 1, 1999 through December 31, 2000. Beginning January 1, 2002,

1
A trial on the merits was held after summary judgment was granted in favor of RMI.
Appeals pertinent to the judgment on the merits are the subject of a separate appeal. See McClure
v. City of Pineville, 06-279 (La.App. 3 Cir. __/__/06), __ So.2d __.

Pineville was self-insured; RMI was the administrator of its claims. On January 1,

2003, Pineville had coverage again with LMRMA/RMI.

After Mrs. McClure sought benefits, RMI filed a disputed claim, seeking a

declaratory judgment that it was not responsible for the payment of the benefits she

sought. Mrs. McClure filed a Reconventional Demand seeking death benefits from

RMI and LWCC. She also sued Pineville.

RMI filed a motion for summary judgment, asserting that all claims against it

should be dismissed; the motion was granted. LWCC filed a motion for new trial

with regard to the grant of summary judgment in favor of RMI. Pineville filed a

motion for new trial and a third party demand against RMI. RMI filed an exception

of no cause of action as to Pineville’s third party demand. The motions for new trial

were denied; the exception was granted. Pineville devolutively appealed the grant of

summary judgment in favor of RMI, the grant of RMI’s exception of no cause of

action, and the denial of its motion for a new trial.

LWCC filed a devolutive appeal of the judgment “dated August 24, 2005,” the

“Judgment denying its Motion for New Trial.” LWCC also filed an “Answer to

Appeal” in response to the appeal filed by Pineville, seeking reversal of the judgment

which granted summary judgment in favor of RMI “to the extent that [it] seeks to

declare that coverage . . . rests with [LWCC].” RMI filed a motion to dismiss

LWCC’s answer. The motion to dismiss was referred to the merits of this appeal. We

address the procedural correctness of LWCC’s appeal of the denial of its motion for

new trial and its answer to Pineville’s appeal before addressing the merits of

Pineville’s appeal.

2

LWCC’s Appeal of the Denial of Its Motion for New Trial

LWCC appealed the WCJ’s denial of its motion for new trial but did not appeal

the judgment granting RMI’s motion for summary judgment. A judgment denying

a motion for new trial is an interlocutory order, not a final appealable judgment.

Shavers v. Shavers, 350 So.2d 912 (La.App. 3 Cir.1977). Interlocutory judgments are

not appealable, unless expressly provided by law. La.Code Civ.P. art. 2083(C).

However, in Fuqua v. Gulf Insurance Co., 525 So.2d 190 (La.App. 3 Cir. 1988), writ

denied, 546 So.2d 1216 (La.1989), this court held that where the appellant’s argument

on appeal indicated that he intended to appeal the judgment on the merits, not the

judgment denying a motion for new trial, the inadvertence of misstating the judgment

being appealed did not necessitate dismissal of the appellant’s appeal, and “the appeal

should be maintained as being taken from the judgment on the merits.” Id. at 191-92,

(quoting Dural v. City of Morgan City, 449 So.2d 1047, 1048 (La.App. 1 Cir.1984).

LWCC specified the date of the judgment being appealed, August 24, 2005,

and the title of the judgment being appealed, “the Judgment denying the Motion for

New Trial.” Furthermore, LWCC has not asserted any argument with regard to

inadvertence in its appeal of the judgment denying the motion for new trial. LWCC’s

actions do not indicate that it simply misstated which judgment it was appealing, and

we dismiss ex proprio motu its appeal of the August 24, 2005 judgment denying its

motion for new trial. See Shavers, 350 So.2d 912.

LWCC’s Answer to Pineville’s Appeal

RMI filed a motion to dismiss LWCC’s answer to Pinveville’s appeal, asserting

that LWCC did not have the right to file an answer to Pineville’s appeal because it is

not an appellee with respect to Pineville’s appeal of the judgment which granted

3

summary judgment in favor of RMI. LWCC has not responded to the motion to

dismiss. Finding merit in RMI’s motion, we grant the motion and dismiss LWCC’s

answer to Pineville’s appeal.

Louisiana Code of Civil Procedure article 2087 (emphasis added) provides in

part:

B. When a devolutive appeal has been taken timely, an appellee who
seeks to have the judgment appealed from modified, revised, or reversed
as to any party may take a devolutive appeal therefrom within the delays
allowed in Paragraph A of this Article or within ten days of the mailing
by the clerk of the notice of the first devolutive appeal in the case,
whichever is later.

La.Code Civ.P. art. 2133 (emphasis added) provides in pertinent part:

A. An appellee shall not be obliged to answer the appeal unless he
desires to have the judgment modified, revised, or reversed in part or
unless he demands damages against the appellant. . . . The answer filed
by the appellee shall be equivalent to an appeal on his part from any
portion of the judgment rendered against him in favor of the appellant
and of which he complains in his answer. . . .

The relationship between LWCC and Pineville determines whether LWCC is

an appellee. La.Code Civ.P. art. 2133(A). In Henley v. Sterling Drugs, Inc., 470

So.2d 647 (La.App. 1 Cir. 1985), the court held that a party whose interest is aligned

with that of the appellant is not an appellee. Referencing the comments to Article

2087, the court noted that pursuant to Article 2133 an appellee can respond to an

appellant. In Henley, the plaintiff sued for damages caused by the defendant’s

defective product. His insurer intervened to collect monies it had paid him.

Judgment was rendered in favor of the defendant. The plaintiff appealed; the insurer

did not appeal but answered the plaintiff’s appeal. The court explained that the

plaintiff/appellant was not an appellant in relation to the insurer because the insurer’s

interest in the litigation was not adverse to reversal of the judgment. The same is true

4

here: LWCC’s interest is not adverse to Pineville’s interest—they both seek reversal

of the summary judgment.

In Borne v. Mike Persia Chevrolet Co., Inc., 396 So.2d 326 (La.App. 4 Cir.),

writ denied, 401 So.2d 976 (La.1981), the court explained that an appellee is one

against whom an appeal is taken and, therefore, must have an interest that is adverse

to reversal of the judgment. See La.Code Civ.P. art. 2133. This explanation makes

it clear that LWCC is not an appellee, as judgment was not rendered against it, no

appeal was taken against it, and its interest is served by, as opposed to being adverse

to, having the judgment reversed. The motion to strike is granted.

Motion for Summary Judgment

A motion for summary judgment will be granted “if the pleadings, depositions,

answers to interrogatories, and admissions 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 mover bears the initial burden of proof to show that no genuine issue of

material fact exists. However, if the mover will not bear the burden of proof at trial,

he need not negate all essential elements of the adverse party’s claim, but he must

point out that there is an absence of factual support for one or more elements essential

to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial

burden of proof, the burden shifts to the nonmoving party to produce factual support

sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

5

Appellate courts review motions for summary judgments de novo, asking the

same questions the trial court asks to determine whether summary judgment is

appropriate. Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773. This

inquiry seeks to determine whether any genuine issue of material fact exists and

whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art.

966(B). “A fact is material if it potentially insures or precludes recovery, affects a

litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v.

Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765.

In its motion for summary judgment, RMI asserted that there was no genuine

issue of material fact that it did not have coverage in effect at the time of

Mr. McClure’s retirement in May, 2000 and, therefore, it was not obligated for

Mrs. McClure’s claim for death benefits. RMI claimed that the carrier who had

coverage in effect at the time of Mr. McClure’s retirement was obligated for payment

of the death benefits sought.

Mrs. McClure’s claims are based on the Heart and Lung Act, La.R.S. 33:2581,

which provides:

Any disease or infirmity of the heart or lungs which develops
during a period of employment in the classified fire service in the state
of Louisiana shall be classified as a disease or infirmity connected with
employment. The employee affected, or his survivors, shall be entitled
to all rights and benefits as granted by the laws of the state of Louisiana
to which one suffering an occupational disease is entitled as service
connected in the line of duty, regardless of whether the fireman is on
duty at the time he is stricken with the disease or infirmity. Such disease
or infirmity shall be presumed, prima facie, to have developed during
employment and shall be presumed, prima facie, to have been caused by
or to have resulted from the nature of the work performed whenever
same is manifested at any time after the first five years of employment.

6

RMI supported its motion with an affidavit by an RMI employee who attested

that there was no coverage in effect between LMRMA and Pineville at the time

Mr. McClure retired, that there was not coverage when Mr. McClure died, and that

“upon information and belief” LWCC had coverage in effect in 1999, 2000, and

2001. RMI also submitted answers to interrogatories by LWCC and Mrs. McClure

in support of the motion to establish that neither party asserted that LRMRA provided

workers’ compensation coverage at the time Mr. McClure retired.

At the hearing on RMI’s motion, Pineville introduced an affidavit which

detailed its workers’ compensation coverage for the period beginning January 1,

1987. The affidavit reflected that Pineville had workers’ compensation coverage with

RMI for the period January 1, 1987 through December 31, 1998.

RMI argued that it was not responsible for Mrs. McClure’s claim for death

benefits pursuant to the last injurious exposure rule, as pronounced in Gales v. Gold

Bond Building Products, 493 So.2d 611 (La.1986), and Beason v. Red Ball Oxygen

Co., 29,894 (La.App. 2 Cir. 10/29/97), 702 So.2d 26. In Gales, the supreme court

adopted the last injurious exposure rule, as opposed to apportioning fault among all

employers and their insurers whose employment contributed to a workers’

compensation claimant’s occupational disease, explaining:

The last injurious exposure rule avoids most of the problems of
the apportionment [among employers] solution and because of this
promotes efficient administration, speedy payment of claims, and, in
most instances, provides the highest level of benefits for the claimant
. . . . [W]e conclude that, as between the successive employers
themselves, the solution of assigning liability according to the last
injurious exposure most effectively furthers the principles and goals of
workers’ compensation laws.

Id. at 617 (citation omitted).

7

Beason applied the same principle to workers’ compensation insurers’ liability.

The claimant in Beason sought benefits for his occupational disease. He sued his

employer and an insurer that provided workers’ compensation coverage for a period

of time during his employment. He claimed that each insurer which provided

workers’ compensation coverage during the time of his “injurious exposure” was

solidarily liable for his claim. The defendant insurer’s policy contained a provision

which limited the insurer’s liability for occupational disability claims to claims where

the claimant’s “last exposure” to the condition which caused his disability occurred

during the insurer’s policy period. The court observed that the insurance contract

“constitutes the law between the parties and is enforced as written if the policy terms

express the intent of the parties,” and held that the insurer sued was not liable for the

claim, as the claimant’s last performance of repetitive arm, hand, and wrist

movements, which contributed to his occupational disease, did not occur during the

insurer’s policy period. Id. at 28.

The occupational disease provision of the Workers’ Compensation Act, La.R.S.

23:1031.1, gave rise to the last injurious exposure rule. See Gales, 493 So.2d 611.

The occupational disease provision entitles employees disabled by occupational

diseases to compensation as if they were injured in accidents in the course and scope

of their employment. La.R.S. 23:1031.1(A).

The WCJ concluded that the language of the Heart and Lung Act rendered

evidence of last injurious exposure irrelevant. The WCJ reasoned that, because the

Heart and Lung Act does not require a fireman to establish any type of injurious

exposure, LWCC knew or should have known when it issued its policies to Pineville

8

that it would be responsible for any workers’ compensation claims made under the

Heart and Lung Act by firemen who retired during its coverage period.

The Heart and Lung Act confers on firemen “all rights and benefits” afforded

a claimant suffering from an occupational disease; however, it does not track the

language of the occupational disease provision. La.R.S. 23:1031.1. Section B of the

latter provision requires that occupational diseases be “due to causes and conditions

characteristic of and peculiar to the . . . employment in which the employee is

exposed to such disease.” The Heart and Lung Act does not contain such a

requirement. Instead, it classifies heart and lung ailments as being “connected with

employment.” La.R.S. 33:2581. This distinction was noted in Vincent v. City of New

Orleans, 326 So.2d 401 (La.App. 4 Cir. 1975), writ denied, 329 So.2d 760 (La.1976),

and led the court to conclude that the jurisprudence interpreting La.R.S. 23:1031.1

is not directly applicable to the Heart and Lung Act.

The Heart and Lung Act significantly simplifies a fireman’s burden of proof

in an occupational disease claim, especially a fireman who has been employed for

more than five years. Requiring firemen to comply with the last injurious exposure

rule imposes a burden of proof that the Heart and Lung Act does not, and imposition

of such a requirement would hinder its principles and goals. For these reasons, we

find no error with the WCJ’s interpretation of the Heart and Lung Act, as it pertains

to firemen who have been employed by the same employer for more than five years.

We do not believe this holding is in derogation of Beason, which held that

policy provisions must be upheld if they “express the intent of the parties.” The last

exposure provision of LWCC’s policy tracks the language of La.R.S. 23:1031.1 and

jurisprudence interpreting it. The Heart and Lung Act does not track the language of

9

the La.R.S. 23:1031.1 and, consequently, jurisprudence interpreting it is not

necessarily pertinent to application of the Heart and Lung Act. See Vincent, 326

So.2d 401. Undoubtedly, Pineville intended to purchase a policy which would satisfy

all workers’ compensation claims asserted against it. The Heart and Lung Act does

not require evidence of injurious exposure; therefore, it is reasonable to conclude that

Pineville did not intend to purchase a policy which required such evidence.

Disposition

The judgment of the WCJ is affirmed. All costs associated with filings made

by Pineville and RMI’s responses to those filings are assessed to Pineville. All costs

associated with filings made by LWCC and RMI’s responses to those filings are

assessed to LWCC.

APPEAL OF DENIAL OF MOTION FOR NEW TRIAL DISMISSED;
MOTION TO DISMISS ANSWER TO APPEAL GRANTED; SUMMARY
JUDGMENT AFFIRMED.

10