Gaylord Container/Temple Inland VS Rob Dunaway
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 2058 GAYLORD CONTAINER INLAND CORPORATION TEMPLE VERSUS ROB DUNAWAY Judgment Rendered May 7 2010 eMEMEa On Appeal from the Office of Workers Compensation District 6 In and for the Parish of St Tammany State of Louisiana Docket No 05 02171 The Honorable Gwendolyn F Thompson Workers Compensation Judge Presiding EWMWwa Craig J Robichaux Gary L Hanes Ryan G Davis Mandeville LA Attorneys for PlaintiffAppellant TIN formerly Gaylord Container Corporation Paul Michael Elvir Jr Attorney for Defendant Appellee Liberty Mutual Insurance Company Metairie LA BEFORE CARTER C GUIDRY AND PETTIGREW JJ J CARTER C J Temple Inland Corporation TIN appeals a judgment of the Office of Workers Compensation granting the motion for summary judgment of its workers compensation insurance carrier Liberty Mutual Insurance Company and dismissing the claims that TIN urged against Liberty Mutual in its petition for declaratory judgment FACTS AND PROCEDURAL HISTORY TIN instituted this workers compensation suit for declaratory judgment seeking a declaration regarding its obligation to pay medical compensation for its employee Rob Dunaway In 1985 Mr Dunaway suffered a mild heart attack involving his left anterior descending artery Thereafter Mr Dunaway returned to work with no restrictions According to the record the attack was considered to be employment related and TIN paid ongoing medical benefits related thereto In 1988 Mr Dunaway experienced another cardiac episode involving his right coronary artery Again Mr Dunaway was able to return to work with no restrictions Although the 1988 episode was not considered a heart attack it was considered to be a cardiac event for which TIN paid related medical benefits At the time of the 1988 episode Liberty Mutual was TIN workers s compensation insurer Pursuant to a consent judgment TIN and Liberty Mutual stipulated that the 1988 episode was work related in that it arose out of and in the course and scope of his employment with TIN and that Liberty s Mutual policy extended coverage to include benefits due to Mr Dunaway arising out of his on accidental injury involving his right coronary job the artery TIN and Liberty Mutual further consented to the following I TIN was formerly known as Gaylord Container Corporation referred to herein as TIN 2 The company is IT IS FURTHER ORDERED ADJUDGED AND DECREED that as a result of Rob Dunaway onthe job s accidental injury involving his right coronary artery TIN has paid weekly benefits and other expenses under the Workers Compensation Act totaling 14 This sum is causally 67 356 related to Rob Dunaway on accidental injury s the job involving his right coronary artery and accordingly judgment is rendered in favor of TIN and against Liberty Mutual Insurance Company requiring Liberty Mutual Insurance Company to reimburse TIN in the total amount of 14 67 356 with this representing full payment of all claims for weekly benefits medical expenses and all other expenses or benefits presently known to have resulted from the accidental injury involving Rob Dunaway right coronary artery which s occurred on September 17 1988 There is no dispute that Liberty Mutual paid TIN as ordered in the judgment In 2002 Mr Dunaway had a cardiac stress test that showed a significant change to all three of his heart vessels which resulted in catheterization and bypass surgery TIN filed the instant suit seeking a judgment declaring that the 2002 episode and bypass surgery was a new superseding event that relieved TIN of its obligation to pay benefits for Mr Dunaway TIN made Liberty Mutual a defendant to the suit seeking an alternative declaration that if it was determined that benefits were still due that Liberty Mutual was liable for payment ofthose benefits The workers compensation judge granted TIN motion for summary s judgment and declared that TIN was relieved of its obligation to pay benefits to Mr Dunaway This court reversed finding that genuine issues of fact remained with regard to TIN obligation to Mr Dunaway s Gaylord ContainerTemple Inland v Dunaway 08 2264 La App 1 Cir 5 09 8 13 So 659 3d Liberty Mutual then filed a motion for summary judgment based solely on the issue of prescription Liberty Mutual contends that since its last payment was made in 1993 and since TIN disputed claim was not s 3 filed until 2005 then any claim against it has prescribed The workers compensation judge granted the motion for summary judgment based on prescription TIN appeals DISCUSSION Liberty Mutual has raised the objection of prescription in response to s TIN declaratory judgment action z The right to seek a declaratory judgment does not itself prescribe However the nature of the basic underlying action determines the appropriate prescriptive period This is because prescription is an issue regarding a plaintiffs standing to seek the declaratory judgment Knox v West Baton Rouge Credit Inc 08 1818 La App 1 Cir 39 So 1020 1023 09 27 3d The underlying action is one to determine whether TIN and its insurer Liberty Mutual are liable to Mr Dunaway for further benefits In its petition TIN states that it has been paying benefits to Mr Dunaway TIN states that it sued Liberty Mutual for contractual indemnification and that the dispute was resolved by the consent judgment wherein the parties stipulated that Liberty Mutual policy extended coverage to include benefits due to s Mr Dunaway arising out of his onthe job accidental injury involving his right coronary artery The liability of a workers compensation insurer is coextensive with that of the insured employer under the provision of the workers compensation law requiring every workers compensation policy to cover 2 We note that Mr Dunaway has not filed an objection raising the objection of prematurity to this action and thus we do not address the employer sdisputed claim as it relates to the requirements of LSAR 23 S 1314 3 As far as the record shows TIN has not sought any additional reimbursement from Liberty Mutual for amounts paid since the time of the consent judgment Cf Bank One v Johnson 04 0508 La App 4 Cir 8 882 So 30 32 04 11 2d 4 the entire liability of the employer Prevost v Jobbers Oil Transport Co 97 2514 La App 1 Cir 6 713 So 1208 1211 LSAR 98 29 2d S 1162 23 In fact the employer and employer workers compensation s insurer are liable to the claimant in solido Chevalier v L Bossier Inc H 95 2075 La 7 676 So 1072 1077 96 2 2d Interruption of prescription against one solidary obligor is effective against all solidary obligors LSA C art 1799 Liberty Mutual argues that under any of the possible prescriptive periods applicable the action is prescribed because its last payment of benefits was made pursuant to the consent judgment in 1993 However s TIN pleading states that it has paid ongoing benefits to Mr Dunaway After careful review we find that TIN payments to Mr Dunaway s raise issues that preclude summary judgment in favor of Liberty Mutual on the basis of prescription at this time Liberty Mutual liability for the 1988 s episode was established by the 1993 consent judgment It is unclear at this point whether TIN owes any further benefits to Mr Dunaway for the 1988 episode Moreover the date of the last payment made to Mr Dunaway so as to start the tolling of the prescriptive period is unclear Because of the outstanding issues summary judgment was not appropriate CONCLUSION The judgment granting summary judgment in favor of Liberty Mutual on the basis of prescription and dismissing TIN claims against Liberty s Mutual is reversed Costs of this appeal are assessed to Liberty Mutual REVERSED 5
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