Valeria Ann Price and Walter Krousel, III VS Wilbert McClay, Jr., M. D., Risk Management Services, L.L.C. and State of Louisiana Department of Health and Hospitals
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0938 VALERIA ANN PRICE AND WALTER KRODSEL III VERSUS WILBERT McCLAY JR M D RISK MANAGEMENT SERVICES L L C AND STATE OF LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS Judgment Rendered December 21 2007 Appealed from the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Suit Number 546 319 Honorable R Michael Caldwell Judge Walter Krousel III Counsel for Plaintiffs Baton Valeria Ann Price and Rouge LA Appellees Walter Krousel III Otha Curtis Nelson Sf Counsel for Defendant Baton Wilbert Rouge LA Matthew W Tierney Kristine D Smiley Baton Rouge LA McClay Jr Counsel for Defendants Risk Management LLC Appellant MD Appellees Services Louisiana Automobile Dealers Association Self Insured Fund and Gerry BEFORE Lane Chevrolet GAIDRY McDONALD AND McCLENDON n McCLENDON J This is proceeding of appeal an For the reasons a summary that follow we judgment rendered III a concursus affirm FACTUAL AND PROCEDURAL HISTORY Valeria Ann Price and scope of her was injured in an employment with Gerry automobile accident Lane Chevrolet subsequently received benefits from Gerry Lane s Gerry workers during Lane the course Ms Price compensation insurer Louisiana Automobile Dealers Association Self Insured Fund LADASIF was administered As a from Dr s result of her Wilbert Louisiana Price by Risk Management Services McClay Depmiment medical bills Ms Price injuries Jr Hospitals through its Medicaid proceeding respective claims to the paid DHH to of Ms portion a represent her in Ms Ms Price and her Dr McClay Price a third ultimately attorney instituted a and DHH to assert their contradictorily against 10 000 00 The State of charges program in order for RMS concursus certain by virtue of which Thereafter 10 000 00 RMS and received medical treatment attorney Walter Krousel III pmiy action against the tortfeasor recovered sought thereby incurring of Health and Ms Price retained L L C which all other parties to the proceeding RMS Gerry entitlement to Thereafter Dr however Lane and LADASIF the disputed McClay also DHH failed to do LADASIF filed a motion funds filed pursuant an answer to filed a asserting summary judgment I an answer LSA R S In November 2006 so seeking collectively a asserting 23 1101 right RMS l et to the Gerry their seq funds Lane and recognizing their interests Specifically LSA R S 23 1103 A 1 provides in pertinent part that when an employee becomes patiy plaintiff in a suit against a third person and damages are recovered such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that ofthe injured employee 2 in the funds Therein they argued that Dr McClay had chosen not to file the charges for his services with Gerry Lane and its workers because he did not compensation that LSA R S allows 4752 9 funds obtained by McClay had failed 9 4753 accept workers That statute health perfect such provides in care he injured party an to a a or lien provider to assert privilege pertinent part as a movers lien or conceded privilege they contended that on Dr in accordance with LSA R S follows provider shall become effective if prior to the payment of insurance proceeds or to the payment of any judgment settlement or compromise on account of injuries a written notice containing the name and address of the injured person and the name and location of the interested health care provider is mailed by the interested health care provider via certified mail return receipt requested to the injured person to his attorney to the person alleged to be liable to the injured person on account of the injuries sustained to any insurance carrier which has insured such person against liability and to any insurance company obligated by contract to pay indemnity or compensation to the injured person Emphasis added The privilege of a health While the she has treated or compensation carrier Movers further assert Dr therefore entitled Price s to subiect only Ms Price sent written notice via certified mail recover to a one the statute and that reimbursement for the benefits third reduction for paid Jacobsen to the motion for summary the RMS adjuster judgment who handled Ms Price and further testified that Dr his lien movers behalf of attorney fees in favor of Ms Price was s the affidavit of Jodi workers compensation Ms Jacobsen established the amount of benefits that had been claim on to attOlney Appended required by as In perfected he never containing all of the information required by RMS were McClay care opposing a argued lien in LSA R S the motion McClay had never provided a paid to Ms written notice of 9 4753 Dr McClay contended that he had properly by sending the required written notice via certified mail Although his memorandum that the notice 3 contained all the information prescribed by law he did not submit offered return receipts indicating Krousel and A 2007 the entity known an hearing Gerry Lane and LADASIF subject pmiy claim a court proceeding pursuant on 29 January rendered judgment in favor of 8 827 51 of the awarding them 13 held was his lien due to his failure to send disputed funds attorney fee of Mr Walter Kroussel sic and sic art to LSA C C P on the McClay The trial cOUli fuliher ordered Dr Dr judgment to certified mail to Mr some judgment share of costs of Mr Kroussel proportionate concursus RMS the trial merely He Excellence LLC Investigative as to alleged notification that he had sent Finding that Dr McClay had not perfected reimbursement 12 copy of his the motion for summary on statutorily required notice RMS as to a corresponding to pay 4659 all costs From this third of the summary McClay appeals ANAYLSIS Appellate that govern the trial appropriate Duplantis v for A motion depositions answers Dillard mover is entitled to initial burden of interrogatories moving pmiy will of proof on judgment proof is not on the claim or suppOli sufficient defense to no as a genuine issue matter proof by pointing one or more Thereafter out to on establish that it will be able to if the pleadings together 966 B The issues for which the court that there is the party satisfy with the moving pmiy s burden elements essential the adverse 1 Cir 855 So 2d LSA C C P trial the App material fact and that to However at file La 03 10 on as of law moving party the motion is satisfied action La and admissions bear the burden of absence of factual support for judgment is judgment should be granted affidavits if any show that there is the a same Store 2002 0852 p 5 Dept writ denied 2003 1620 679 summary to s criteria under the summary novo determination of whether cOUli s 849 So 2d 675 5 9 03 350 review sUlllinary judgments de courts its to an the adverse party must produce evidentiary s factual burden ofn4 proof trial at LSA C C P On genuine failure 966 C art appeal Dr do to 2 McClay the evidence he submitted sent Krousel or as Dr to as return a concursus at Accordingly proving trial RMS respect Gerry to establish their Similarly perfected trial Dr lien that a provided evidentiary at nothing to more company than called a 9 4753 return find lien based a on Price s attorney Walter LLC which he contends works for collecting agent all other being as LSA C C P parties disputed funds In they provided the affidavit of RMS sufficient factual evidence that McClay would primed the LSA R S to both 4656 art support of s adjuster they would be able burden of proof at trial Jacobson stated that Dr required by failing Lane and LADASIF would bear the burden of their motion for summary judgment Ms its to Ms their entitlement to reimbursement from the Jodi Jacobson which erred in proceeding each defendant is considered and defendant with plaintiff court properly perfected his receipts Investigative Excellence as 849 So 2d at 679 80 argues that said evidence indicates that he McClay through Workers Compensation In that the trial whether he to certified letters with well as asserts genuine issue of material fact no 2002 0852 at p 5 Duplantis issue of material fact actually shows there is so movers claim to reimbursement had McClay In bear the burden of proving that he had opposing receipt showing Investigative Excellence provided never the motion that he sent LLC Dr some In her affidavit the written notice McClay submitted certified mail to Patently this does a not demonstrate that he sent notice via certified mail to RMS much less that such notice contained Accordingly genuine all of the required by agree with the trial court that Dr we issue of material fact Although infonnation on LLC works with or appeal the pertinent McClay failed to establish regarding whether he had properly perfected Dr McClay contends that through workers compensation 5 Investigative there is statute a a lien Excellence absolutely nothing in the record to substantiate this no authority to support finding a LLC should be construed Alternatively with costs and in Dr as allegation that his Even if there alleged notice compliance with McClay to McClay offers for new errors as Excellence 4753 9 argues that the trial court erred in denying his motion particular alleged Dr Investigative LSA R S trial At the outset McClay listed certain issues for appeal that he failed consider those were to brief abandoned pursuant him assessing we note that Dr Accordingly to Rule 2 we 4 12 of the Uniform Rules of Louisiana Courts of Appeal and decline to address them Moreover part of the trial 4659 court in against costs assess having thoroughly reviewed the record making the pertinent rulings McClay under Dr 2 Additionally McClay Dr discretionary grounds justifying and 1973 the It we was find clearly empowered plain language of LSA C C P has failed to demonstrate either a new trial as the no error on art peremptory set forth in LSA C C P to or mis 1972 hereby affirmed All 3 CONCLUSION F or the costs of this foregoing appeal are the summary judgment is reasons assessed to Dr Wilbert McClay AFFIRMED 1 Louisiana Code ofCivil Procedure art 4659 When money has been other party shall be provides in part registry ofthe into the deposited required to pay any ofthe costs of the court by concursus the plaintiff neither he nor any proceeding as they accrue but these shall be deducted from the money on deposit The court may award the successful claimant judgment for the costs of the proceeding which have been deducted from the money on deposit or any portion thereof against any other claimant who contested his right thereto as in its judgment may be considered equitable 3 The peremptory new grounds for a new trial set forth in LSA C C P art 1972 which provides in part granted upon contradictory motion of any party I When the verdict or judgment appears clearly contrary to the law and the evidence 2 When the party has discovered since the trial evidence important to the cause which he could not with due diligence have obtained before or during the trial 3 When the jury was bribed or has behaved improperly so that impartial justice has not been A are trial shall be done Pursuant to LSA C C P mi 1973 the trial court has the discretion to grant therefor 6 a new trial if there exists good ground
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