Louisiana Workers' Compensation Corporation v. Industrial Helicopters, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-419

LOUISIANA WORKERS’ COMPENSATION
CORPORATION

VERSUS

INDUSTRIAL HELICOPTERS, LLC

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SUPERVISORY WRIT FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 4
PARISH OF LAFAYETTE, NO. 16-00535
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret,
Judges.

WRIT DENIED.

Kenneth H. Laborde
Brendan P. Doherty
Bradley J. Schwab
Gieger, Laborde & Laperouse
One Shell Square
701 Poydras Street, Suite 4800
New Orleans, LA 70139-4800
(504) 561-0400
COUNSEL FOR DEFENDANT/APPLICANT:
Industrial Helicopters, LLC

Gregory E. Bodin
Christopher M. Vitenas
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
Chase North Tower
450 Laurel Street, 20th Floor
Baton Rouge, LA 70801
(225) 381-7000
COUNSEL FOR PLAINTIFF/RESPONDENT:
Louisiana Workers’ Compensation Corporation

SAUNDERS, Judge.

Two applications seeking supervisory writs from judgments of the Office of

Workers’ Compensation (OWC), Parish of Lafayette, the Honorable Sharon

Morrow presiding, have been filed in this matter, which has been before this Court

on several previous occasions in an underlying tort litigation filed by Tommie

Hebert (Hebert) and his wife against Industrial Helicopters, LLC (Industrial),

among other defendants, for injuries Hebert sustained in a helicopter accident. See

Hebert v. Richard, 10-1417 (La.App. 3 Cir. 7/6/11), 72 So.3d 892 (Hebert I);

Hebert v. Richard, 15-8 (La.App. 3 Cir. 6/17/15), 166 So.3d 1265 (Hebert II),

writs denied, 15-1390, 15-1391 (La. 10/2/15), 178 So.3d 991; Hebert v. Richard,

16-427 (La.App. 3 Cir. 11/2/16), 206 So.3d 251 (Hebert III), writ denied, 16-2058

(La. 1/19/17), 214 So.3d 870.

In the first writ application, docket number 17-419, Defendant/Plaintiff-in-

Reconvention-Relator, Industrial, seeks supervisory writ from the OWC judgment,

which granted summary judgment in favor of Plaintiff/Defendant-in-Reconvention,

Louisiana Workers’ Compensation Corporation (LWCC), Industrial’s workers’

compensation insurer, finding the doctrine of res judicata precluded relitigation of

whether Hebert was in the course and scope of his employment with Industrial at

the time of the accident.

In the second writ application, docket number 17-428, LWCC seeks review

of the OWC judgment, which granted partial summary judgment in favor of

Industrial, holding that coverage would be afforded to Industrial under LWCC’s

policy in the event it is determined that Hebert was in the course and scope of his

employment with Game Management, Inc. (GMI), as a borrowed employee, at the

time of his injury.

STATEMENT OF THE CASE

This matter arises out of an accident in which Hebert fell from a helicopter

owned by Industrial while capturing whitetail deer using a deer-netting gun in

Mexico on March 3, 2007. Industrial voluntarily began paying medical bills and

issuing weekly checks to Hebert as workers’ compensation benefits. LWCC

denied coverage based on its determination that Hebert was not in the course and

scope of his employment with Industrial at the time of the accident. Hebert and his

wife sued, in tort, the owner and operator of the helicopter, Industrial, as well as

GMI, a wildlife survey company. Both Industrial and GMI are owned by J. Oran

Richard. As a defense, Industrial argued that (1) GMI was Hebert’s

special/borrowing employer who had borrowed Hebert from his general employer,

Industrial, and (2) under La.R.S. 23:1031(C), 1 both Industrial and GMI were

solidarily liable for workers’ compensation benefits and, therefore, immune from

suit in tort. The trial court granted summary judgment in favor of Industrial on this

issue. On appeal, this court reversed, explaining:

GMI is not a borrowing employer. Further, the control by Industrial
in this case renders Industrial, but not GMI, liable for workers’
compensation benefits and entitled to tort immunity if Mr. Hebert was
in the course and scope of his employment with Industrial at the time
of his accident. Industrial states that he was not.
1
Louisiana Revised Statutes 23:1031(C) provides:

In the case of any employee for whose injury or death payments are due and who
is, at the time of the injury, employed by a borrowing employer in this Section
referred to as a “special employer”, and is under the control and direction of the
special employer in the performance of the work, both the special employer and
the immediate employer, referred to in this Section as a “general employer”, shall
be liable jointly and in solido to pay benefits as provided under this Chapter. As
between the special and general employers, each shall have the right to seek
contribution from the other for any payments made on behalf of the employee
unless there is a contract between them expressing a different method of sharing
the liability. Where compensation is claimed from, or proceedings are taken
against, the special employer, then, in the application of this Chapter, reference to
the special employer shall be substituted for reference to the employer, except that
the amount of compensation shall be calculated with reference to the earnings of
the employee under the general employer by whom he is immediately employed.
The special and the general employers shall be entitled to the exclusive remedy
protections provided in R.S. 23:1032.
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Hebert I, 72 So.3d at 903. Following remand, the Heberts filed a motion for partial

summary judgment, asserting no genuine issue of material fact existed pertaining

to the issue of Industrial’s immunity from tort liability, given Industrial judicially

admitted Hebert’s injuries did not occur in the course and scope of his employment

with Industrial in multiple filings of record. The trial court denied the motion, and

after trial, the jury found Hebert was in the course and scope of his employment

with Industrial at the time of the accident, awarding $1,500,000.00 in special

damages and $500,000.00 in general damages. On appeal, this court again

reversed, finding, relevant herein, that (1) the statement made by Industrial

constituted a “judicial confession” that Hebert was not in the course and scope of

his employment with Industrial at the time of the accident and (2) after reviewing

all of the admissible evidence, including Industrial’s confession, “the evidence

overwhelmingly establishes that Hebert was not in the course and scope of his

employment with Industrial at the time of the accident.” Hebert II, 166 So.3d at

1274, 1276. At this point, LWCC sought to intervene in the action, seeking to

have its obligations under its workers’ compensation policy resolved, but the trial

court denied the motion. After remand, this court further concluded that Industrial

was entitled to an offset for the $503,839.49 in workers’ compensation benefits

already paid “as it was not responsible for workers’ compensation benefits since

Mr. Hebert was not in the course and scope of his employment.” Hebert III, 206

So.3d at 254. Industrial has taken full credit for the offset, but still seeks to recover

the entire $503,839.49 from LWCC.

Meanwhile, LWCC filed a Petition for Declaratory Judgment in the OWC,

seeking a declaration that no coverage was afforded under its policy issued to

Industrial. Industrial filed a counterclaim seeking coverage under the policy,

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arguing Hebert was in the course and scope of his employment at the time of the

accident, either directly with Industrial or as a borrowed employee.

Thereafter, LWCC filed its motion for summary judgment, seeking, in part,

an order that this court’s course and scope ruling was res judicata between the

parties, precluding relitigation of this issue. Industrial opposed the motion,

contending that res judicata is not applicable because this action and the Hebert

action are not between the same parties. It also filed its own motion for partial

summary judgment, seeking an order that coverage would be afforded under

LWCC’s policy in the event it is determined that Hebert was in the course and

scope of his employment with either Industrial or with GMI as a borrowed

employee at the time of the accident. In response, LWCC argued there was no way

Industrial could be the lending employer because this court has already determined

Hebert was not in the course and scope of his employment with Industrial at the

time of the accident.

The OWC first heard LWCC’s motion on March 3, 2017. Finding it was

bound by this court’s ruling on “direct” employment, the OWC granted summary

judgment on the res judicata issue from the bench, noting:

And you make good arguments, [defense counsel]; I understand
the arguments. I see where you’re coming from. It just goes against
the grain for me to say, “Well, I disagree with the Third Circuit
holding here.” It’s kind of like a child and a parent; you don’t tell
your parent you disagree. You wait for the parent to maybe change its
mind or take a different approach. So I’m not saying that your
argument doesn’t have merit. It’s just I do feel bound by that finding.

In a separate hearing held on March 22, 2017, the OWC granted partial

summary judgment in favor of Industrial, finding, on the very narrow issue of

general employment, “that if it is determined that Industrial was a general

employer and Game Management, Inc. was a special employer of Tommie Hebert

at the time of his accident, then coverage for worker’s compensation benefits will
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be payable under the policy LWCC issued to Industrial.” Industrial now seeks

review of the OWC’s grant of summary judgment on the issue of res judicata (17-

419), and LWCC seeks review of the OWC’s grant of partial summary judgment

on the borrowing employer/general employer issue (17-428). We have issued a

writ granting LWCC’s writ application on 17-428 which reversed the OWC’s grant

of partial summary judgment. Further, in writ 17-428, we have dismissed

Industrial’s claim in this matter.

SUPERVISORY RELIEF

“The proper procedural vehicle to contest an interlocutory judgment that

does not cause irreparable harm is an application for supervisory writs. See La.

C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir.

3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b),

Comments- -2005, which provides, in pertinent part, “Irreparable injury continues

to be an important (but not exclusive) ingredient in an application for supervisory

writs.” “A court of appeal has plenary power to exercise supervisory jurisdiction

over [trial] courts and may do so at any time, according to the discretion of the

court.” Herlitz Const. Co., Inc. v. Hotel Inv’rs of New Iberia, Inc., 396 So.2d 878,

878 (La.1981) (per curiam). When the trial court’s ruling is arguably incorrect, a

reversal will terminate the litigation, and there is no dispute of fact to be resolved,

judicial efficiency and fundamental fairness to the litigants dictate that the merits

of the application for supervisory writs should be decided in an attempt to avoid

the waste of time and expense of a possibly useless future trial on the merits. Id.

ON THE MERITS

We dismissed Industrial’s claim in writ 17-428. That dismissal renders this

writ application moot.

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DISPOSITION

WRIT DENIED. This writ application is moot.

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