Kevin Melbert v. Compsource Oklahoma

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-356

KEVIN MELBERT

VERSUS

COMPSOURCE OKLAHOMA, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 12-05767
CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Shannon J. Gremillion, Judges.

AFFIRMED.

Eric Edward Pope
Blue Williams, L.L.P.
3421 N. Causeway Boulevard – Suite 900
Metairie, LA 70002
Telephone: (504) 831-4091
COUNSEL FOR:
Defendants/Appellees - CompSource Oklahoma and TNT Construction

Kevin Melbert
In Proper Person
1107 Highway 10 East
Oakdale, LA 71463

THIBODEAUX, Chief Judge.

The claimant, Kevin Melbert, appeals the judgment of the Office of

Workers’ Compensation (OWC) which dismissed his claims against the

employer’s insurer, CompSource Oklahoma, on the basis that the insurance policy

did not provide coverage to employees injured in Louisiana under the facts of this

case. Finding no error on the part of the OWC, we affirm.

I.

ISSUES

We must determine whether the trial court erred in finding that no

workers’ compensation coverage existed in favor of the claimant under the

Oklahoma policy.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Melbert, a resident of Oakdale, Louisiana, damaged the muscles

in his left arm and shoulder on May 30, 2012, while working for TNT Construction

in Carlyss, Louisiana. Mr. Melbert was seen at Sulphur Urgent Care on June 11,

2012, and at Oakdale Community Hospital’s emergency room on June 18, 2012.

He was given specialist referrals, one prescription for pain medication, and was

taken off work on June18. A couple of weeks later, Mr. Melbert was convicted of

a misdemeanor and incarcerated in Oakdale City Jail for six months.

TNT Construction, an Oklahoma company, was insured by the

defendant, CompSource Oklahoma (CompSource). CompSource paid for the

initial visits above, but thereafter denied coverage under the Oklahoma policy for

the referrals.

Mr. Melbert’s attorney filed a 1008 and then withdrew from the suit,

indicating that he had been unable to effect service against TNT at the Florida

Street, Oklahoma, address that Mr. Melbert had supplied. CompSource answered

the suit and filed a motion for summary judgment, which was denied due to

outstanding discovery issues.

Subsequently, at the trial on the merits in January 2014, the OWC

found that Mr. Melbert had proved a compensable work injury and was entitled to

wage and medical benefits from TNT, who had not answered the claim nor made

an appearance in the matter. The OWC also found that Mr. Melbert was entitled to

$4,000.00 in penalties against TNT. The OWC issued judgment accordingly

against TNT and advised Mr. Melbert that he needed to locate TNT and execute

his judgment against this employer.

As to the insurer, CompSource, the OWC dismissed the claims based

upon its non-coverage of the Oklahoma employer, TNT, for the Louisiana injuries

of Mr. Melbert. For the reasons below, we affirm the dismissal of CompSource.

III.

STANDARD OF REVIEW

Factual findings in workers’ compensation cases are subject to the

manifest error/clearly wrong standard of review. Banks v. Industrial Roofing &

Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551. In applying this

standard, the appellate court must determine not whether the trier of fact was right

or wrong, but whether its conclusion was reasonable. Id. Whether or not a policy

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is ambiguous is a question of law. La. Ins. Guar. Ass’n v. Interstate Fire & Cas.

Co., 93-911 (La. 1/14/94), 630 So.2d 759. Appellate review of questions of law is

to determine whether the trial court’s interpretation of the policy is legally correct.

Brafa v. Christ, 05-270 (La.App. 3 Cir. 11/2/05), 915 So.2d 957.

IV.

LAW AND DISCUSSION

Mr. Melbert contends that the trial court erred in dismissing

CompSource from the proceedings. His argument is factual, and he cites no law in

support of his position.

An insurance policy is a contract that constitutes the law between the

parties. La.Civ.Code art.1983; Marcus v. Hanover Ins. Co., 98-2040 (La. 6/4/99),

740 So.2d 603. If the wording of the policy is clear and expresses the intent of the

parties, the policy must be enforced as written. Marcus, 740 So.2d 603;

La.Civ.Code art. 2046. “Absent a conflict with statutory provisions or public

policy, insurers are entitled to limit their liability and to impose reasonable

conditions on the obligations they contractually assume.” Marcus, 740 So.2d at

606. Ambiguities are construed against the insurer. Ledet v. Campo, 12-1193

(La.App. 3 Cir. 3/6/13), 128 So.3d 1034. See also La.Civ.Code art. 2056.

Exclusions must be clearly stated. La. Maint. Servs. Inc. v. Certain Underwriters

at Lloyd’s of London, 616 So.2d 1250 (La.1993). See also La.Civ.Code art. 2057.

The insured bears the burden of proving the coverage exists, but the insurer has the

burden of proving that the exclusion applies to the loss claimed. Doerr v. Mobil

Oil Corp., 00-947 (La. 12/19/00), 774 So.2d 119, reh’g granted on limited factual

matter, 00-947 (La. 3/16/01), 782 So.2d 573.

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CompSource asserts that it is a regional carrier writing workers’

compensation coverage primarily for Oklahoma employers doing business

principally in Oklahoma; that temporary out of state projects are covered if certain

conditions are met; and that those conditions are not met in this case. It argues that

its policy did not provide coverage to TNT for Mr. Melbert’s injury because he

was not hired in Oklahoma, principally working in Oklahoma with an expectation

of returning to Oklahoma, or working in Oklahoma at the time of his injury.

The original CompSource form policy provides in pertinent part:

PART THREE-OTHER STATES INSURANCE

A. How This Insurance Applies

1. This other states insurance applies only if one or
more states are shown in Item 3.C. of the
Information Page.

2. If you begin work in any one of those states after
the effective date of this policy and are not insured
or are not self-insured for such work, all provisions
of the policy will apply as though that state were
listed in Item 3.A. of the Information Page.

....

4. If you have work on the effective date of this
policy in any state not listed in Item 3.A. of the
Information Page, coverage will not be afforded
for that state unless we are notified within thirty
days.

B. Notice

Tell us at once if you begin work in any state other than
the state of Oklahoma.

Our review of the record reveals that neither Louisiana nor any other

state was listed under 3A or under 3C of the Information Page, and the record

contains no notice of work in Louisiana or any other state.

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More specifically, the Information Page provides at 3A and 3C:

3A. WORKERS COMPENSATION INSURANCE:
PART ONE OF THE POLICY APPLIES TO THE
WORKERS COMPENSATION LAW OF THE STATE
OF OKLAHOMA

....

C. OTHER STATES INSURANCE: PART THREE OF
THE POLICY APPLIES TO THE STATES IF ANY,
LISTED HERE: NONE, EXCEPT AS SHOWN IN
PART 3A.

Moreover, as specifically argued by CompSource, the following

“Other States Insurance Endorsement” that replaces Part Three above precludes

coverage to Mr. Melbert because all three mandatory conditions are not met:

PART THREE OTHER STATES INSURANCE

A. HOW THIS INSURANCE APPLIES

I. WE WILL PAY PROMPTLY WHEN DUE
THE BENEFITS REQUIRED OF YOU BY THE
WORKERS COMPENSATION LAW OF ANY STATE
NOT LISTED IN ITEM 3.A. OF THE INFORMATION
PAGE IF ALL OF THE FOLLOWING CONDITIONS
ARE MET:

A. THE EMPLOYEE CLAIMING BENEFITS
WAS EITHER HIRED UNDER A CONTRACT OF
EMPLOYMENT MADE IN A STATE LISTED IN
ITEM 3.A. OF THE INFORMATION PAGE OR WAS,
AT THE TIME OF INJURY, PRINCIPALLY
EMPLOYED IN A STATE LISTED IN ITEM 3.A. OF
THE INFORMATION PAGE AND;

B. THE EMPLOYEE CLAIMING BENEFITS IS
NOT CLAIMING BENEFITS IN A STATE WHERE,
AT THE TIME OF INJURY, (I) YOU HAVE OTHER
WORKERS COMPENSATION INSURANCE
COVERAGE, OR (II) YOU WERE, BY VIRTUE OF
THE NATURE OF YOUR OPERATIONS IN THAT
STATE, REQUIRED BY THAT STATE’S LAW TO
HAVE OBTAINED SEPARATE WORKERS
COMPENSATION INSURANCE COVERAGE, OR
(III) YOU ARE AN AUTHORIZED SELF-INSURER

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OR PARTICIPANT IN A SELF-INSURED GROUP
PLAN; AND

C. THE DURATION OF THE WORK BEING
PERFORMED BY THE EMPLOYEE CLAIMING
BENEFITS IN THE STATE FOR WHICH THAT
EMPLOYEE IS CLAIMING BENEFITS IS
TEMPORARY.

....

IMPORTANT NOTICE:

IF YOU HIRE ANY EMPLOYEES OUTSIDE THOSE
STATES LISTED IN ITEM 3.A. ON THE
INFORMATION PAGE OR BEGIN OPERATIONS IN
ANY SUCH STATE, YOU SHOULD DO WHATEVER
MAY BE REQUIRED UNDER THAT STATE’S LAW,
AS THIS ENDORSEMENT DOES NOT SATISFY THE
REQUIREMENTS OF THAT STATE’S WORKERS
COMPENSATION LAW.

Conversely, here, Mr. Melbert testified that he lived in Oakdale,

Louisiana, when he was hired by TNT; that he interviewed, applied, and was hired

at the job site in Carlyss, Louisiana; and that he was working at the job site in

Carlyss, Louisiana, when he was injured. Accordingly, as Louisiana was not listed

under any section of the policy or its Information Pages, Mr. Melbert cannot satisfy

the first condition in the endorsement and is unambiguously precluded from

coverage.

Mr. Melbert does not assert ambiguity but claims coverage based

upon the fact that his supervisor filled out the Sulphur Urgent Care medical form,

inserting an Oklahoma address for Mr. Melbert—606 North Elm Street, Waurika,

Oklahoma—which was apparently near TNT’s reported address of 612 North Elm

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Street in Waurika, Oklahoma.1 However, Mr. Melbert testified that he had never

been to either Oklahoma address, and his few weeks of work for TNT were in

Louisiana.2

Our review of the record indicates that the OWC judge did everything

possible to help Mr. Melbert understand his own position and that she specifically

advised him to find an attorney to execute the judgment that she had issued in his

favor against TNT. While we are sympathetic to Mr. Melbert’s unfortunate

predicament, we must agree with the OWC’s finding that the Oklahoma

employer’s policy with CompSource Oklahoma does not provide coverage for Mr.

Melbert, who was hired in Louisiana, working in Louisiana, and injured in

Louisiana.

V.

CONCLUSION

Based upon the foregoing, we affirm the OWC’s dismissal of the

defendant insurance company, CompSource Oklahoma. Costs of this appeal are

assessed to the claimant, Mr. Kevin Melbert.

AFFIRMED.

1
Mr. Melbert stated that he was told upon his hiring that he would need an Oklahoma
address. Both Elm Street addresses were apparently foreclosed upon buildings, and the record
contains speculations that the employer may have been bankrupt.
2
We will not consider Mr. Melbert’s argument on appeal that he was sitting in TNT’s
vehicle at the time he was hired and that the vehicle is an extension of TNT’s Oklahoma office,
as this argument was not raised before the OWC. Uniform Rules—Courts of Appeal, Rule 1–3.

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