Robert Lapoint v. Commerce & Industry Insurance Company and Stephens Tps, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-388

ROBERT LAPOINT

VERSUS

COMMERCE & INDUSTRY INSURANCE
COMPANY AND STEPHENS TPS, INC.

**********

ON REMAND FROM THE LOUISIANA SUPREME COURT

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION – DISTRICT 03
PARISH OF CALCASIEU, NOS. 13-6349, 15-2726, 17-1901
DIANNE MARIE MAYO, WORKERS’ COMPENSATION JUDGE

**********

JOHN E. CONERY
JUDGE

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Court composed of Billy H. Ezell, Shannon J. Gremillion, John E. Conery, Candyce
G. Perret, and Sharon Darville Wilson, Judges.

AFFIRMED IN PART; REVERSED IN PART.

Aaron Broussard
Broussard & Williamson
1301 Common Street
Lake Charles, LA 70601
(337) 439-2450
COUNSEL FOR PLAINTIFF/APPELLANT:
Robert LaPoint

Robert A. Dunkelman
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P.
400 Texas Street, Suite 400
Shreveport, LA 71101
(318) 221-1800
COUNSEL FOR DEFENDANTS/APPELLEES:
Stephens TPS, Inc.
Commerce and Industry Insurance Company

CONERY, Judge.

Robert LaPoint was hired by Stephens TPS, Inc. (Stephens) to perform

sandblasting and painting work. While he initially performed work for Stephens in

Louisiana, he was working in Atlanta, Georgia when he sustained a serious work-

related injury. Stephens and its insurer, Commerce and Industry Insurance Company

(C&I), provided initial workers’ compensation benefits in Georgia.1

Stephens and C&I intervened in a suit Mr. LaPoint filed against third-party

tortfeasors, a principal contractor and its employee, in Georgia. Although Mr.

LaPoint reached a mediated settlement with the tortfeasor defendants, the amount

due Stephens and C&I for alleged workers’ compensation reimbursement claims

remained unresolved. The Louisiana workers’ compensation judge (WCJ)

eventually ordered reimbursement to Stephens and C&I for all past workers’

compensation benefits paid to Mr. LaPoint, payable out of the proceeds of the

Georgia settlement with the tortfeasor and his employer, as well as a credit for their

future workers’ compensation obligation payable under the Louisiana Workers’

Compensation Act.

Mr. LaPoint appealed and, for the first time in this court, filed an exception of

res judicata, which this court sustained, reversing and vacating the judgment of the

WCJ in favor of Stevens and C&I. See LaPoint v. Commerce & Indus. Ins. Co., 20-

388 (La.App. 3 Cir. 6/9/21), 323 So.3d 428.

On November 23, 2021, the supreme court granted the writ application of

Stephens and C&I, vacated the judgment of this court, and remanded for

consideration of any assignments of error raised by Mr. LaPoint in the original

1
Following his discharge from the hospital in Georgia, Mr. LaPoint returned to Louisiana
and began receiving Louisiana workers’ compensation benefits.

appeal. See LaPoint v. Commerce & Indus. Ins. Co., 21-995 (La. 11/23/21), 328

So.3d 64. By per curiam opinion, the supreme court stated:

Writ granted. “The doctrine of res judicata is stricti juris; any doubt
concerning application of the principle of res judicata must be resolved
against its application.” Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633
So. 2d 1210, 1215. The party urging res judicata must establish all
elements of La. R.S. 13:4231 “beyond all question.” Id. Because the
Georgia court’s jurisdiction extended to workers’ compensation claims
that arose from payments made under Georgia’s workers’ compensation
law only, the Georgia court lacked jurisdiction to adjudicate Stephens’ and
CII’s reimbursement claims for benefits paid under the LWCA. Thus, the
Georgia court judgment does not have preclusive effect and is not res
judicata to the claims at issue here. Accordingly, the court of appeal
judgment is vacated, and the matter is remanded for the court of appeal to
consider any assignments of error raised on appeal by Mr. Robert
La[P]oint.

COURT OF APPEAL JUDGMENT VACATED AND REMANDED.

Id. By footnote, the supreme court explained that Mr. LaPoint died on July 28, 2021.

Id. n.1. The supreme court therefore substituted Mr. LaPoint’s daughters, Katelyn

LaPoint, Ashlyn LaPoint, and Chelsea LaPoint, as party plaintiffs in this case

pursuant to La.Civ.Code art. 2315.1. Id.2

We now consider this matter on remand.3

2
As a result of Mr. LaPoint’s death, the issue of credit against future workers’
compensation payments is now moot. For purposes of consistency, we continue to reference Mr.
LaPoint as the appellant as we now consider the assignments of error lodged by his original
appellant’s brief.
3
Following the supreme court’s November 23, 2021 remand order, this panel released an
opinion on January 12, 2022. Counsel for Mr. LaPoint subsequently informed this court that he
had filed a timely application for rehearing in the Louisiana Supreme Court on November 23,
2021. Without having received the rehearing application, this court followed the dictates of the
Louisiana Supreme Court’s remand order and mistakenly rendered the opinion of January 12,
2022. After verifying the pending rehearing application, this court issued a Recall Order on
January 14, 2022, ordering that the opinion of January 12, 2022, be recalled, withdrawn, and
rescinded.

2

ASSIGNMENTS OF ERROR

Mr. LaPoint raised the following two assignments of error in the original

appeal to this court:

1. The OWC erred in finding it had subject matter jurisdiction over
TPS’s claim for reimbursement.

2. The OWC arguably erred in finding it had subject matter
jurisdiction to determine TPS’s credit. The law is not very clear.

LAW AND DISCUSSION

As reflected in Mr. LaPoint’s assignments of error, the devolutive appeal

before this court is based on the primary contentions that the Louisiana workers’

compensation judge (WCJ) lacked subject matter jurisdiction to order

reimbursement of or credit4 toward the aforementioned Georgia tort recovery, and

that the ruling by the Georgia court decided the issue in 2015. Mr. LaPoint’s

Assignment of Error Number 2, the issue of employer/insurer credit against future

workers’ compensation benefits, is now moot due to Mr. LaPoint’s death.

Mr. LaPoint sought to have the Georgia court rule that Stephens and C&I were

not entitled to recover their subrogation claim for workers’ compensation benefits

paid both in Georgia and Louisiana. As discussed at length in this court’s initial

consideration in LaPoint, 323 So.3d 428 (citations omitted), the Georgia court ruled,

in part, that:

Under Georgia’s workers’ compensation statutory scheme, an
employer or insurer’s subrogation right is limited to benefits paid under
Georgia’s Workers’ Compensation Act. Therefore, this Court finds
that [Stephens and C&I] are ‘precluded from asserting what might be a
valid subrogation under [Louisiana] law[”] and, therefore, cannot
pursue in Georgia a subrogation claim for the benefits they paid under
[] Louisiana law.

4
Given Mr. LaPoint’s recent death, we recognize that the entirety of Stephens’ and C&I’s
claim going forward would be one for reimbursement.

3

The Georgia court subsequently determined that Stephens and C&I paid $7,282.03

to Mr. LaPoint under the Georgia Workers’ Compensation Act, and that award is no

longer in dispute.

Stephens and C&I thereafter filed their claim for reimbursement and credit in

District 3 of the Louisiana Office of Workers’ Compensation (OWC). Mr. LaPoint

filed exceptions of lack of subject matter jurisdiction and no cause of action and was

granted a stay while he sought to have the Georgia court’s ruling denying Stephens’

and C&I’s workers’ compensation subrogation claims given full faith and credit in

the Fourteenth Judicial District Court, Calcasieu Parish.

Subsequently, the trial court in the Fourteenth Judicial District Court granted

full faith and credit only to the Georgia court’s judgment that provided for payment

of the amounts paid on behalf of Mr. LaPoint under the Georgia Workers’

Compensation Act, the amount of $7,282.03 as identified above. The district court

also ordered that its “recognition of the above referenced Georgia Order does not

dictate how a Louisiana Court might deal with a claim for reimbursement or credit

that relates to a Louisiana compensation claim as those issues are not before the

Court.” Mr. LaPoint did not appeal that ruling.

The matter thereafter returned to the WCJ to rule on Mr. LaPoint’s exceptions

of lack subject matter jurisdiction and no cause of action by which Mr. LaPoint

argued, as he continues to do on appeal, that the OWC does not have jurisdiction

over Stephens’ and C&I’s claims for reimbursement or credit from the settlement

funds originating from the Georgia third-party tort suit.

In opposition, Stephens and C&I maintained that the OWC had subject matter

jurisdiction to consider either reimbursement or credit claims under La.R.S.

23:1035.1, which pertains to extraterritorial coverage, and pursuant to La.R.S.

4

23:1310.3(F), which pertains generally to a workers’ compensation judge’s

jurisdiction over all claims or disputes arising out of the workers’ compensation laws

of this state.

The WCJ denied both exceptions, referencing the Georgia court’s ruling. The

WCJ reasoned that once Stephens and C&I filed their intervention in the Georgia

court proceedings and a settlement was reached, jurisdiction was vested in the OWC

to decide the workers’ compensation intervention for payments made to Mr. LaPoint

under the Louisiana Workers’ Compensation Act pursuant to La.R.S. 23:1102 and

La.R.S. 23:1103.

As indicated in the original review of this matter, the trial court denied both

of Mr. LaPoint’s exceptions. Mr. LaPoint took writs to both this court and the

supreme court on the ruling of the WCJ. Both courts denied Mr. LaPoint’s writ

applications. See Stephens TPS, Inc. v. LaPoint, 18-471 (La.App. 3 Cir. 7/20/18)

(an unpublished writ ruling). See also Stephens TPS v. LaPoint, 18-1394 (La.

10/8/18), 253 So.3d 799.

With the matter of subject matter jurisdiction seemingly resolved below, the

WCJ considered the merits of Stephens’ and C&I’s claim for reimbursement and

awarded a net reimbursement of $570,941.32. The WCJ also included an order

providing Stephens and C&I with a claim for a credit for any future workers’

compensation obligation in the amount of $2,095,735.36, which, as noted infra, is

now moot due to Mr. LaPoint’s death.

On appeal, Mr. LaPoint again returned to his claim that the OWC did not have

subject matter jurisdiction over Stephens’ and C&I’s claim for either reimbursement

or credit. As they did before, Stephens and C&I maintain that the OWC had subject

matter jurisdiction pursuant to the “extraterritorial coverage” provision of La.R.S.

5

23:1035.1. They additionally reference the “law of the case” doctrine and suggest

that this court should not revisit the earlier writ denials on the rulings of the

exceptions of lack of subject matter jurisdiction and no cause of action. We first

address this latter contention.

Exception of Lack of Subject Matter Jurisdiction

Louisiana Code of Civil Procedure Article 2 defines subject matter

jurisdiction as “the legal power and authority of a court to hear and determine a

particular class of actions or proceedings, based upon the object of the demand, the

amount in dispute, or the value of the right asserted.” As the exception of lack of

subject matter jurisdiction raises a question of law, it is reviewed on appeal de novo

in order to determine whether the underlying ruling was correct. See Adkins v. City

of Natchitoches, 14-491 (La.App. 3 Cir. 11/5/14), 150 So.3d 646.

Notwithstanding the prior ruling on the exception of res judicata, now vacated,

this panel observed in the original opinion that subject matter jurisdiction “certainly

existed for [the claimed] recovery that may have fallen outside of the Georgia

litigation.” Citing La.R.S. 23:1102 and La.R.S. 23:1103. The panel continued,

however, and stated that, to the extent “the parties debate whether La.R.S. 23:1102

and La.R.S. 23:1103 permit … recovery for reimbursement and/or credits … their

focus misses the mark in this case.” LaPoint, 323 So.3d at 439 (emphasis in

original).

On this latter point, this panel remarked on the unique nature of Stephens’ and

C&I’s claim for reimbursement and credit5 from the proceeds of Mr. LaPoint’s tort

5
We recognize that, in light of Mr. LaPoint’s recent death, all forward-looking claims for
credit are now moot. All claims are now ones for reimbursement. Accordingly, we below reverse
the judgment to the extent it recognized a credit toward Stephens’ and C&I’s future workers’
compensation obligation.

6

settlement against a principal/statutory employer and its employee. Id. Such a

recovery by Mr. LaPoint would not have otherwise been available to an employee

working in this state. See, e.g., La.R.S. 23:1032; La.R.S. 23:1061. Thus, Mr.

LaPoint would not have had a tort recovery at all against his principal/statutory

employers or their employees in Louisiana. See Allen v. State ex rel. Ernest N.

Morial-New Orleans Exh. Hall Auth., 02-1072 (La. 4/9/03), 842 So.2d 373. See also

Berard v. The Lemoine Co., LLC, 15-152 (La.App. 3 Cir. 7/8/15), 169 So.3d 839,

writ denied, 15-1516 (La. 10/23/15), 179 So.3d 606. Mr. LaPoint’s recovery of a

lump-sum tort recovery from a foreign jurisdiction such as Georgia places Stephens’

and C&I’s claim for reimbursement and or credit outside of the anticipated

procedure for such recovery under the Louisiana workers’ compensation statutes.

Stephens and C&I correctly observe, however, that the “applicable

jurisdictional grant” in this case is provided by La.R.S. 23:1310.3(F), which broadly

indicates that:

F. Except as otherwise provided by R.S. 23:1101(B), 1361, and
1378(E), the workers’ compensation judge shall be vested with
original, exclusive jurisdiction over all claims or disputes arising out
of this Chapter . . . .

(Emphasis added.)

Mr. LaPoint filed a claim for an increased workers’ compensation indemnity

benefit and for approval of a recommended surgical procedure under Louisiana law

in this case, and Stephens and C&I unquestionably provided both indemnity and

medical benefits under Louisiana workers’ compensation law arising out of Mr.

LaPoint’s out-of-state work-related accident. Stephens and C&I were required to

pay those benefits pursuant to the “extraterritorial coverage” extended to an

7

employee who is injured while working outside of Louisiana, but who was working

pursuant to a contract made in this state. See La.R.S. 23:1035.1.

Stephens’ and C&I’s attempt to recoup those payments made pursuant to

La.R.S. 23:1035.1 from the proceeds of Mr. LaPoint’s settlement with the principal

employer, its employee, and its insurer “arose” from its obligations under the

Louisiana Workers’ Compensation Act. Louisiana Revised Statutes 23:1310.3(F)

therefore provides the explicit jurisdictional statement necessary for the adjudication

of this case by the workers’ compensation judge.

On this point, Mr. LaPoint recognized in his brief the import of La.R.S.

23:1031.3(F), but suggested that it negated a finding of subject matter jurisdiction.

He argued that: “The key to this case appears in the very first words of La.R.S.

23:1310.3(F), the statute governing the OWC’s jurisdiction: ‘Except as otherwise

provided by R.S. 23:1101(B) …’” Mr. LaPoint continued, explaining that these

“very first words of the statute giving the OWC jurisdiction over workers[’]

compensation matters excludes reimbursement claims. [La.R.S.] 23:1101(B) states

the employer ‘may bring suit in district court’ ‘to recover any amount which he has

paid or becomes obligated to pay as compensation to such employee or his

dependents.’” (Emphasis added.)

Mr. LaPoint, however, omitted from his quotation the critical portion of

La.R.S. 23:1101(B). It provides that an employer “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.” Louisiana

Revised Statutes 23:1101(B) is inapplicable in this unique case as a principal

employer is excluded from the definition of “third person” as provided by La.R.S.

23:1101(A).

8

In this regard, La.R.S. 23:1101 provides for “[e]mployee and employer suits

against third persons” and provides a procedure for such a suit. However, it defines

“third person” as “some person … other than those persons against whom the said

employee’s rights and remedies are limited in R.S. 23:1032[.]” La.R.S. 23:1101(A)

(emphasis added). By operation of both La.R.S. 23:1032 and La.R.S. 23:1061, Mr.

LaPoint’s “rights and remedies” against the principal/statutory employer, and by

extension its employee, would have been precluded.6

We further note that Mr. LaPoint asserted that La.R.S. 23:1101(B) dictates

that adjudication of a reimbursement claim be “in a district court which is Georgia

where [he] was working, injured, and filed his tort suit.” He suggested that Stephens

“knows this, which is why they intervened in the Georgia suits in the first place.”

However, by its per curiam remanding this matter, the supreme court specifically

precluded Mr. LaPoint’s proposition, stating: “Because the Georgia court’s

jurisdiction extended to workers’ compensation claims that arose from payments

made under Georgia workers’ compensation law only, the Georgia court lacked

jurisdiction to adjudicate Stephens’ and CII’s reimbursement claims for benefits paid

under the LWCA.” LaPoint, 328 So.3d at 64.

In light of the supreme court’s jurisdictional instruction regarding the limits

of the Georgia court’s authority, and the express conveyance of jurisdiction provided

6
Counsel for Mr. LaPoint concedes this point in his brief on remand. Likewise, Stephens
and C&I point out that its reimbursement claim was not brought under La.R.S. 23:1101, et seq.

We continue with a discussion of the original assignment of error, however, as the supreme
court remanded this matter with instruction “to consider any assignments of error raised on appeal
by Robert LaPoint.” LaPoint, 328 So.3d at 64 (footnote omitted). While this panel considers the
original assignments of error as instructed, the panel is informed by the parties’ additional briefing
as permitted on remand.

9

by La.R.S. 23:1310.3(F) “to all claims or disputes out of this Chapter …[,]” we are

constrained to deny Mr. LaPoint’s assignment of error.

We recognize that, on this latter point, counsel for Mr. LaPoint contends that,

because Stephens’ and C&I’s reimbursement claim is not specifically provided for

by the Workers’ Compensation Act or “specifically anywhere in Louisiana law,” it

cannot be considered to be one “arising out of this Chapter . . . .” That argument,

however, overlooks the wording of the jurisdictional statement of La.R.S.

23:1310.3(F), which provides that:

[T]he workers’ compensation judge shall be vested with original,
exclusive jurisdiction over all claims or disputes arising out of this
Chapter, including but not limited to workers’ compensation insurance
coverage disputes, group self-insurance indemnity contract disputes,
employer demands for recovery for overpayment of benefits, the
determination and recognition of employer credits as provided for in
this Chapter, and cross-claims between employers or workers’
compensation insurers or self-insurance group funds for
indemnification or contribution, concursus proceedings pursuant to
Louisiana Code of Civil Procedure Articles 4651 et seq. concerning
entitlement to workers’ compensation benefits, payment for medical
treatment, or attorney fees arising out of an injury subject to this
Chapter.

(Emphasis added.) Notably, the delineated claims or disputes in Paragraph (F) is not

exclusive. The legislature instead specifically indicated that covered claims or

disputes arising out of the Chapter “include” the listed disputes but are not otherwise

limited thereby. That legislative statement was by 1997 La. Acts No. 94, § 1, which

became effective after the jurisprudence cited by counsel for Mr. LaPoint for the

proposition that Stephens’ and C&I’s claim does not arise under the Workers’

Compensation Act.7 See Sampson v. Wendy’s Mgmt. Inc., 593 So.2d 336 (La.1992);

7
Prior to the 1997 amendment, the jurisdictional statement of La.R.S. 23:1310.3 provided
that: “Except as otherwise provided by R.S. 23:1101(D) and 1378(E), the hearing officer shall be
vested with original, exclusive jurisdiction over all claims or disputes arising out this Chapter[.]”

10

Grant v. Natchitoches Manor Nursing Home, 96-1546 (La.App. 3 Cir. 5/14/97), 696

So.2d 73, writ denied, 97-1582 (La. 10/17/97), 701 So.2d 1330; Jackson v. Am. Mut.

Liab. Ins. Co., 95-1359 (La.App. 3 Cir. 6/12/96), 676 So.2d 716, writ denied, 96-

2371 (La. 12/6/96), 684 So.2d 927; Cajun Bag & Supply v. Baptiste, 94-1218

(La.App. 3 Cir. 3/1/95), 651 So.2d 943.

Other cases cited by counsel for Mr. LaPoint in brief on remand involve

situations in which avenues beyond Title 23 allowed the aggrieved party to seek

relief. See Broussard Physical Therapy v. Family Dollar Stores, Inc., 08-1013 (La.

12/2/08), 5 So.3d 812; Gunderson v. F.A. Richard & Assoc., Inc., 07-331 (La.App.

3 Cir. 2/27/08), 977 So.2d 1128, writs denied, 08-1063, 08-1069, 08-1072 (La.

9/19/08), 992 So.2d 953; and Covington v. A-Able Roofing, Inc., 95-1126 (La.App.

3 Cir. 3/6/96), 670 So.2d 611. The supreme court recently addressed this latter

factual scenario in determining that an insured’s claim for penalties against its

workers’ compensation insurer properly rests with the district court as the underlying

claim for breach of the duty of good faith arises from the contractual and fiduciary

relationship between the insured/insurer. Cox, Cox, Filo, Camel & Wilson, LLC v.

La. Workers’ Comp. Corp., 21-566 (La. 3/25/22), _ So.3d _ (2022 WL 884029)

(citing, in part, Smith v. Citadel Ins. Co., 19-52 (La. 10/22/19), 285 So.3d 1062).

This case is not such a matter. Neither party points to an apparent contractual or

legal remedy permitting Stephens’ and C&I’s to seek reimbursement of the workers’

compensation benefits outside of Title 23. Counsel for Mr. LaPoint, in fact, explains

that none exists.

Rather, while Stephens’ and C&I’s claim is not strictly one “for recovery for

overpayment of benefits” as specifically referenced in La.R.S. 23:1310.3(F), it is

one for recovery of benefits which were redundant of funds received by Mr. LaPoint

11

in his Georgia settlement. Although this case has a convoluted procedural history in

light of the Georgia proceedings, the instant claim is actually straightforward: 1)

Stephens and C&I provided benefits to Mr. LaPoint as required under Title 23, and

2) they now seek reimbursement of their workers’ compensation payments to the

extent that Mr. LaPoint also received a tort recovery by way of the Georgia

settlement as a result of an accident giving rise to the claim by Mr. LaPoint for

Louisiana workers’ compensation benefits. No statutory regime outside of the

Workers’ Compensation Act is specific to an employer’s recovery of workers’

compensation benefits paid but which are duplicative of funds otherwise received

by a claimant arising from a compensable workers’ compensation accident. We

conclude that it therefore follows that the present dispute falls under the limited grant

of jurisdiction to the Office of Workers’ Compensation as set forth in La.R.S.

23:1310.3(F).

For these reasons, we maintain the workers’ compensation judge’s denial of

Mr. LaPoint’s exception of lack of subject matter jurisdiction, although due to Mr.

LaPoint’s death we reverse the workers’ compensation judge’s ruling to the extent

it recognized Stephens’ and C&I’s right to a credit toward their future workers’

compensation obligation.

CONCLUSION

On remand from the Louisiana Supreme Court, and pursuant to that Court’s

remand instructions, we are constrained to affirm in part the ruling of the Workers’

Compensation Judge in the underlying judgment of November 26, 2019 awarding

Stephens TPS, Inc. and Commerce & Industry Insurance Company the sum of

12

$570,941.008 for reimbursement of workers’ compensation benefits paid on behalf

of Mr. Robert LaPoint, plus legal interest from the date of the November 26, 2019

judgment until paid.

Due to the death of Mr. Robert LaPoint on July 28, 2021, we reverse as moot

that portion of the workers’ compensation judge’s November 26, 2019 judgment

which awarded Stephens TPS, Inc. and Commerce & Industry Insurance Company

the sum of $2,095,735.36 credit toward their future workers’ compensation

obligation.

One half of all costs is assessed to Stephens TPS, Inc. and Commerce &

Industry Insurance Company, and the remaining one half of costs is assessed to Mr.

Robert LaPoint’s successors, Katelyn LaPoint, Ashlyn LaPoint, and Chelsea

LaPoint, as proper party plaintiffs.

AFFIRMED IN PART; REVERSED IN PART.

8
In rendering judgment, the WCJ relied in part on the parties’ pre-trial stipulations and
explained her calculation in awarding the reimbursement as follows:

The monies held in escrow in the amount of $863,695 minus the amount
paid under the Georgia workers’ compensation act in the amount of $7,283.03
equals $856,411.97. A one-third reimbursement for the [M]oody fee is
$285,470.65, leaving a reimbursement to the defendant, Stephens TPS, and
[Commerce & Industry Insurance Company] in the amount of $570,941.

13