Louisiana Workers' Compensation Corporation v. Industrial Helicopters, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-428

LOUISIANA WORKERS’ COMPENSATION
CORPORATION

VERSUS

INDUSTRIAL HELICOPTERS, LLC

**********

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

**********

JOHN D. SAUNDERS

JUDGE

**********

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

WRIT GRANTED.

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/RESPONDENT:
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/APPLICANT:
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, 10-417 (La.App. 3 Cir. 7/6/11), 72 So.3d 892; 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 17-1419, 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.
2

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,

3

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 ccould 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
4

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).

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

An appellate court reviews a motion for summary judgment de novo, using

the identical criteria that govern the trial court’s consideration of whether summary

judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880.

The reviewing court, therefore, is tasked with determining whether “the motion,

memorandum, and supporting documents show that there is no genuine issue as to

5

material fact and that the mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(A)(3).

17-428 LWCC’s application on borrowing/general employer status

Pursuant to La.R.S. 23:1032(A), an employee or his dependent who is

entitled to workers’ compensation benefits is limited to the rights and remedies

under the Workers’ Compensation Act (WCA) to the exclusion of all other rights,

remedies, and claims for damages, except for intentional acts and unless otherwise

expressly provided by statute. Under La.R.S. 23:1031(C), a borrowing employer is

solidarily liable with a general employer for workers’ compensation benefits, and

the borrowed employee is barred from bringing a tort action against the borrowing

employer as well as the general employer. Pradia v. S. Personnel of La., Inc., 00-

365 (La.App. 3 Cir. 10/11/00), 776 So.2d 474, writ denied, 00-3018 (La. 1/5/01),

778 So.2d 599; La.R.S. 23:1031(C). The exclusive remedy provision of our WCA

ensures, therefore, that injuries arising from accidents within the course and scope

of employment are only recoverable in workers’ compensation, except under the

intentional acts loophole. See Moreno v. Entergy Corp., 12-97 (La. 12/4/12), 105

So.3d 40; Caudle v. Betts, 512 So.2d 389 (La.1987). Injuries not resulting from an

accident within the course and scope of employment are compensable under our

traditional tort remedies. Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09),

16 So.3d 1065.

LWCC argues the OWC erred in holding that, despite Hebert not being in

the course and scope of his employment with Industrial at the time of the accident

and despite LWCC not having a separate policy with GMI, the policy issued to

Industrial would afford coverage if it is determined that Hebert was the general or

lending employee of Industrial at the time of the accident. At the very core of the

borrowing employer doctrine is the recognition that there is more than one
6

potential employer—a borrower and a lender—who may be responsible to an

injured worker for the payment of benefits. This fiction of liability to a “borrowing

employer” ends here because this court has already determined that Industrial

cannot be the “lending employer” in its holding that (1) Hebert was outside the

course and scope of his employment with Industrial and (2) Industrial was only

liable to Hebert for tort damages. Industrial now seeks to upset this court’s ruling

and attempt a second bite at the apple by seeking to recover the tort damages it

owed to Hebert under LWCC’s workers’ compensation policy.

In opposition, Industrial argues that LWCC’s policy obligates LWCC to pay

promptly when due the benefits required of Industrial by the workers compensation

law. If, at the time of the accident, Hebert was employed by GMI, making GMI

his borrowing employer, then under the provisions of La.R.S. 23:1031(C),

Industrial, as his general employer, was still obligated to pay benefits under the

WCA. It also argues that this court’s determination that Hebert was not in the

course and scope of his employment with Industrial does not preclude coverage

because, under the borrowed servant doctrine, the general employer’s

responsibility/liability extends also to circumstances where the employee is injured

in the course and scope of employment as a borrowed employee under the

direction and control of the borrowing/special employer. 2 Finally, just because

Industrial was found liable in tort does not preclude a borrowed employee scenario

as there has never been a determination by any court that Hebert was not in the

course and scope of his employment at all, such as would result in a determination

that Industrial was not obligated to pay benefits.

2
The court cited, for its result, Arabie Bros. Trucking Co., v. Gautreaux, 03-120 (La.App.
1 Cir. 8/4/04), 880 So.2d 932, writ denied, 04-2481 (La. 12/10/04), 888 So.2d 846 (stipulation of
employee that he was not in the course and scope of employment with his general employer did
not resolve issue of whether he was borrowed employee of another entity).
7

In this matter, Industrial advances a position in which it seeks to recover

“comp benefits” for which it has already received a credit on its tort liability and

after this court has conclusively held that Industrial is only liable in tort. Under the

exclusivity provisions of the WCA, an employer cannot be held liable in both tort

and workers’ compensation in this circumstance, and yet, Industrial attempts to

circumvent this through its arguments regarding the inapplicability of res judicata

and the borrowed servant doctrine. As to the latter argument, the borrowed servant

issue has been previously addressed and decided by this court. In Hebert I, this

court reversed the trial court’s grant of summary judgment on this very issue,

engaging in the following in depth review of the record evidence:

Borrowed Servants

The right of control is in dispute because Mike Richard, a paid
employee of Industrial, coordinated the deer netting activity. It is
disputed whether Mike Richard was acting on behalf of GMI or
Industrial. The only evidence of a fuel purchase showed that an
Industrial credit card was used. Mr. Hebert attested to the fact that in
times past and on the subject trip to Mexico he drove a fuel truck from
Lafayette to Del Rio, Texas, purchasing fuel and a hotel room with an
Industrial credit card. The only fuel receipt produced was charged on
an Industrial credit card.

Neil Gremillion testified that he worked part-time for Industrial
and Mike Richard netting deer in Mexico. He did other jobs for
Industrial and was always paid with Industrial checks. He testified
that he either drove or flew to Mexico with Mike Richard, who was
always the Industrial pilot for the deer netting trips. Mr. Gremillion
further testified that Industrial provided two fuel trucks for the deer
netting in Mexico and that he himself had driven Industrial fuel trucks
to Mexico. Neil Gremillion is the son of Wayne Gremillion, who
worked full time managing one of the Richards’ leased properties
known as Goose Lake.

The issues surrounding Mike Richard’s employment with
Industrial create issues of fact regarding the other factors including Mr.
Richard’s selection of Mr. Hebert for the subject trip to Mexico when
Neil Gremillion could not go. Likewise, there is an issue of fact
regarding whether Mike Richard had a right to fire Mr. Hebert when
both men were employed and paid by Industrial. The actual payment
of wages for deer netting activities is undocumented and in dispute.
Mr. Hebert and Wayne Gremillion testified that they were not paid for
8

deer netting. Defendants imply that the employees were paid “tips.”
The record reveals, however, that tips paid to employees were from
hunting or fishing clients and that the aerial deer netting in Mexico
was not a commercial enterprise open to hunters or fishermen
according to the testimony of J. Oran Richard.

Regarding the tools, equipment, and location used, the Richards
testified that the netting gun and harness system were provided by
GMI. However, GMI did not produce any receipts or proof of
purchase for either. Paul Marks testified that he purchased the
climbing harness from Guidry Hardware in Scott, Louisiana, between
1995 and 1998 for his work on communication towers. He testified
that he gave this harness to Industrial around 2003 when the Richards
were setting up their deer netting activities. The helicopter and pilot,
Mike Richard, were provided by Industrial. The place for the activity,
the ranch in Mexico, was allegedly supplied through GMI’s lease of
the property, but the lease of the 40,000–acre ranch and all GMI
leases were alleged to be verbal and remain undocumented.

The deer netting activity was not one that Mr. Hebert did over a
considerable period of time during his near thirty years with Industrial.
He had only been on one prior trip to net deer in Mexico four years
before the accident. With regard to whose work was being done in
Mexico, Defendants point out Mr. Hebert’s own testimony supporting
GMI’s position that Mr. Hebert did various kinds of work for GMI
and that Mike Richard was the boss in Mexico. Mr. Hebert, however,
also testified that he had always done whatever the Richards asked
him to do on farms and ranches in Louisiana, Texas, South Dakota,
and Mexico and that he did not always know on whose behalf the
work was being done. He further stated that he did not know on whose
behalf the deer netting was done.

Mr. Hebert was a professional CDL driver with Industrial for
twenty-nine years. As fuel/chemical supply manager, his duties
included ordering, management, transportation, and distribution of
fuel. He also described some of his work as “general facility” care. In
addition to driving a fuel truck, Mr. Hebert served on various
properties of the Richards as a hunting/fishing guide and all-around
handy-man. He built fences, maintained feeders and blinds, cut grass,
fed cattle, bailed hay, planted trees, worked on the Richards’ old
farmhouse, helped maintain Industrial’s shop, air strip, and landing
pads, and did general plumbing, welding, and carpentry. For almost
thirty years he was paid by check written by Industrial. Even if some
of the work was ostensibly for GMI, deer netting was not one of his
regular duties with either Industrial or GMI. It constituted only one
trip of a few weeks duration in 2003, about one one-thousandth of one
percent of his time with the Richards.

Whether Mr. Hebert acquiesced in the deer netting activity in
2007 is contested. He alleges that he had recently remarked that he
was getting too old to perform that type of activity. Mike Richard
9

approached Mr. Hebert at work in Industrial’s shop and asked him to
make the trip to Mexico because no one else could go. Mr. Hebert
contends that he told Mike Richard that he did not want to go to
Mexico on the weekend that the accident occurred. He was marinating
rabbits for an annual cook-off that he participated in every year. Mr.
Hebert testified that Mike Richard then did not ask him to go, but said,
“I want you there.” Mr. Hebert testified that he did not have a gun to
his head but that it was scary to tell the bosses no. In his affidavit, Mr.
Hebert testified that he went to Mexico because he was in fear of
losing his job with Industrial. He stated that he was never given
additional compensation for his role in the private enterprises of J.
Oran Richard, Michael Richard, and/or GMI.

With regard to the last factor, Defendants concede that
Industrial did not terminate its relationship with, or relinquish control
over, Mr. Hebert. They argue that, under Humphreys [v. Marquette,
235 La. 355, 103 So.2d 895 (1958),] and Perry [v. Perry & Sons Vault
& Grave Serv., 03-1519 (La.App 3 Cir. 5/12/04), 872 So.2d 611, writs
denied, 04-1610, 04-1504, 04-1616 (La. 10/1/04), 883 So.2d 1011-2,]
this factor has less weight because the same family owned both
Industrial and GMI. We disagree. J. Oran Richard testified that he
owned and operated both businesses at the time of the accident. At the
time of the accident, Mike Richard was a paid employee of Industrial.
He was not an officer or employee of GMI. Even if Mike Richard did
coordinate a deer netting operation on behalf of GMI, he did not wear
two hats or run both entities as the father did in Perry.

In Perry, the injured worker drove a garbage truck for his
father’s sanitation company five days a week for twenty years, and he
was paid solely by the sanitation company. After work and on
weekends, the son did some work for his father’s vault and grave
company and was injured while driving a vault and grave vehicle. The
workers’ compensation judge found that the son was an employee of
the vault and grave company and found its insurer liable for benefits.
On appeal, this court reversed, finding that the sanitation company
was the lending employer, that the vault and grave company was the
borrowing employer, and that both of their workers’ compensation
insurers were solidarily liable. In Perry, however, while the father ran
both companies, we made it clear that each company “maintained
separate equipment” and that the injured son “clearly acquiesced” in
the exchange of services. Perry, 872 So.2d at 617.

In Perry, we cited the 1958 Humphreys case involving two
separate companies that shared employees and found that even though
one boss wore two hats, there was still a borrower-lender relationship
and solidary liability. As previously stated, Perry and Humphreys
were workers’ compensation cases where the two employers’ separate
workers’ compensation carriers battled over who should pay the
benefits. There was no summary judgment issue regarding the
separate entities and no tort immunity issue. In fact, we stated in Perry,
“This is not a doubtful case. There was no question that [the claimant]
10

was entitled to workers’ compensation benefits. The only question
was which insurance company, if not both, was obligated to pay those
benefits.” Perry, 872 So.2d at 620.

In Humphreys, in discussing that there were two distinct
businesses, both of which were liable for workers’ compensation
benefits as lending and borrowing employers, the supreme court
articulated as follows:

Loans were acquired by each in its own name; bank
accounts and charge accounts with merchants were
carried by each in its own name. Had it not been for the
fact that they each had separate compensation insurers,
this case possibly would not be before us.

Humphreys, 103 So.2d at 898.

Conversely, in this case, as Mr. Hebert urges, GMI has not
produced any documentation in support of its assertion that it was a
separate entity entitled to tort immunity as a borrowing employer. J.
Oran Richard and Mike Richard testified that Industrial and GMI
worked in concert in the deer netting business and that it was a joint
operation between the companies. This assertion renders the last
factor of control significant because joint employment is legally
distinct from borrowed employment. In Perry, we distinguished joint
employers from borrowing and lending employers, as follows:

Joint employment requires a “common enterprise that
contemplates the employment and control of the claimant
by one of the interested parties for the benefit of all.”
Even though Perry & Sons and Sanitation Services are
owned and operated by the same individual, they are not
common enterprises. Each corporation provides different
services which are not dependent upon, related to, or
complementary of the services provided by the other
corporation.

Perry, 872 So.2d at 619 (citations omitted).

Here, the joint operation and common enterprise referred to by
the Richards contemplates the employment and control of Mr. Hebert
by Industrial for the benefit of both Industrial and GMI, and it appears
that GMI was wholly dependent upon Industrial. Hence, under Perry,
contrary to Defendants’ analysis, this last factor is important even
where the businesses are owned and operated by one family. Under
Perry, 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. Based
upon the foregoing, the trial court erred as a matter of law in finding
11

borrowed servant status in this case and in granting summary
judgment to Defendants on that issue.

Hebert I, 72 So.3d at 900-03 (emphasis in original). Judge Amy was the lone

dissenter on this particular issue, opining:

First, I find that the defendants sustained their burden of proof
with regard to borrowed employee status since, in my opinion, the
parties’ submissions lead only to the conclusion that La.R.S.
23:1031(C) is applicable to this employment situation. Undoubtedly
Mr. Hebert was an employee of Industrial Helicopters. However, the
evidence demonstrates that one of Industrial’s functions was to
provide its fleet and employees to Game Management for the
furtherance of the latter company’s operations. Thus, I find that, at the
time of the accident, Mr. Hebert was fulfilling the roles of both
companies under the borrowed employee factors. See Perry v. Perry
& Sons Vault & Grave Serv., 03-1519 (La.App. 3 Cir. 5/12/04), 872
So.2d 611; Green v. Popeye’s, Inc., 619 So.2d 69 (La.App. 3 Cir.
1993). In fact, in light of the dual roles played by the management
personnel, it seems to me that the factors, by and large, are equally
applicable to both companies. Thus, I would affirm this aspect of the
trial court’s ruling.

Hebert I, 72 So.3d at 909-10. The matter then proceeded to the jury, which found

“GMI owed Hebert no legal duty.” Hebert II, 166 So.3d at 1270. That holding

was apparently not appealed. Significantly, in the second appeal, this court quoted,

in the affirmative, its previous explanation regarding GMI’s status as a borrowing

employer, and did so again in the third appeal, stating: “This court held initially

that Game Management was not a borrowed employer.” Hebert III, 206 So.3d at

253.

In the third appeal, this court also reaffirmed its holding on course and scope

as well as the exclusivity of Hebert’s tort recovery: “In the present case, it has been

determined that Mr. Hebert was not in the course and scope of his employment, so

Industrial is not responsible for workers’ compensation benefits. Industrial is only

liable to Mr. Hebert for tort damages.” Hebert III, 206 So.3d at 254 (emphasis

added). This court explained:

12

The supreme court held that an employer who is assessed both
workers’ compensation benefits and tort damages gets a credit or
offset for wages and medical expenses to the extent that disability
benefits and medical expenses have been paid. However, the amount
of the credit should not exceed the amount of wages and medical
expenses owed or awarded under tort liability. This is based on the
“premise that Louisiana law does not allow for double recovery of the
same element of damages.” Albert v. Farm Bureau Ins. Co., 05–2496,
p. 4 (La. 10/17/06), 940 So.2d 620, 622.

Id.

These reasons, which precluded the employee from receiving workers’

compensation benefits plus tort damages in an intentional tort setting, should

extend as well, in the inverse, to the insured’s attempt to collect reimbursement

from its workers’ compensation insurer for payments this court granted a credit for

against its negligence-based tort liability after conclusively finding the payments

were not required under the WCA. Simply put, this court has already determined

the benefits Industrial seeks reimbursement for are not compensation benefits.

Accordingly, this writ is granted. The OWC’s ruling on partial summary

judgment is reversed.

We also recognize, sua sponte, pursuant to La.Code Civ.P. art. 927(B) and

the exclusivity provision of the WCA, that, because this matter sounds in tort,

Industrial has neither a right nor a cause of action under the WCA. Thus, we

dismiss Industrial’s claim, as this matter has lingered in the courts for close to a

decade.

DISPOSITION

WRIT GRANTED. The trial court’s partial summary judgment on the borrowed

servant doctrine is reversed. Further, we dismiss Industrial’s claim.

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