Janet Hernandez Miller VS St. Tammany Parish School Board (2010CA1919 Consolidated With 2010CA1920)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 1919 JANET HERNANDEZ MILLER VERSUS ST TAMMANY PARISH SCHOOL BOARD CONSOLIDATED WITH NUMBER 2010 CA 1920 JANET HERNANDEZ MILLER VERSUS ABC INSURANCE COMPANY ET AL Px Judgment Rendered Mgy 6 2011 z 7r Appealed from the Twenty Second Judicial District Court In and for the Parish of St Tammany Louisiana Trial Court Number 2002 10 c 2002 10 363 w 365 Honorable Allison H Penzato Judge Arthur W Landry Jeanne A Landry Attorneys for Plaintiff Appellee Jerald N Andry Janet Hernandez Miller New Orleans LA Charles M Ponder III New Orleans LA Attorney for Defendants Appellants D P Slocum and Metropolitan Property Harry Pastuszek David S Pittman Covington LA Casualty Ins Co Attorneys for Appellee St Tammany Parish School Bd Defendant BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J D P Slocum and his insurer Metropolitan Property Company Metropolitan Casualty Insurance appeal a judgment sustaining a peremptory exception raising the objection of no cause of action and dismissing with prejudice their claims against the St Tammany Parish School Board school board We affirm in compliance with Uniform Rules Courts of Appeal Rule 2 16 1 B We borrow from our earlier opinion Miller v St Tammany Parish School st 09 11 Board 2008 2582 2008 2583 p 2 La App 1 Cir 9 unpublished opinion Janet Hernandez Miller was employed by the school board as a full time special education teacher and was assigned to Clearwood Junior High School Clearwood in Slidell Louisiana One of Ms s Miller two students was D an autistic child On January 23 S 2001 D began engaging in self injurious behaviora symptom of S his autismwhen Ms Miller and others intervened to prevent him from injuring himself For approximately 50 minutes Ms Miller and others struggled with D who at the time was 14 years old over 5 S feet 5 inches and weighed approximately 185 pounds As a result of this struggle Ms Miller allegedly sustained injuries which have rendered her disabled On January 24 2002 Ms Miller filed a petition against the school board asserting that because she was injured as a result of an assault or battery by a student she was entitled to sick leave without reduction in pay for the duration of her disability pursuant to the provisions of La R 17 By separate petition Ms S 1201 a 1 C Miller also filed suit on the same date against P Slocum as the D administrator of the estate of his minor child and ABC Insurance Company for damages arising from the incident Metropolitan was later substituted for ABC Insurance Company and the two suits were subsequently consolidated The school board intervened in Ms Miller suit against Slocum and s Metropolitan claiming that it was subrogated to the rights of Ms Miller for all sums the school board had already paid or will be obligated to pay in the future to Ms Miller and seeking reimbursement for those sums out of any damages or recovery received by Ms Miller against Slocum and Metropolitan In response The plaintiff was receiving workers compensation benefits 2 Slocum and Metropolitan filed a reconventional demand against the school board claiming that they were entitled to indemnity or in the alternative contribution from the school board under the provisions of La C art 2318 for its negligence and since D was at the time of the incident under the care of the school board S The school board responded to the reconventional demand by filing a peremptory exception raising the objection of no cause of action contending that Slocum and s Metropolitan claims against it were eliminated by the 1996 amendments to La C art 2323 and 2324 After a hearing on July 21 2010 the trial court rendered judgment sustaining the exception and dismissed the claims of Slocum and Metropolitan against the school board A judgment in accordance with the trial s court ruling was signed on July 26 2010 and it is from this judgment that Slocum and Metropolitan appeal In reviewing a trial court ruling on an exception of no cause of action the s appellate court should subject the case to de novo review because the exception raises a question of law and the trial court decision is based only on the s sufficiency of the petition Fink v Bryant 2001 0987 p 4 La 11 801 01 28 2d So 346 349 The peremptory exception raising the objection of no cause of action is designed to test the legal sufficiency of the petition by determining whether the petitioner is afforded a remedy in law based on the facts alleged in the pleading Fink 20010987 at p 3 801 So at 348 No evidence may be 2d 349 introduced to support or controvert the objection that the petition fails to state a cause of action as the exception is triable on the face of the pleadings and for the purposes of determining the issues raised by the exception the wellpleaded facts in the petition must be accepted as true Fink 2001 0987 at pp 3 4 801 So at 2d 349 A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any 2 See 1996 La Acts 0 Ex Sess No 3 1 eff April 16 1996 W claim Fink 2001 0987 at p 4 801 So at 349 2d On appeal Slocum and Metropolitan contend that the trial court erred in sustaining the exception and in dismissing their claim for indemnity against the school board Essentially Slocum and Metropolitan contend that they are entitled to indemnity from the school board pursuant to express provisions of La C art 2318 which provides in pertinent part The father and the mother are responsible for the damage occasioned by their minor child who resides with them or who has been placed by them under the care of other persons reserving to them recourse against those persons Emphasis added Slocum and Metropolitan contend that since Ms Miller claims against Slocum for damage cause by his son D are s S predicated on La C 2318 and since Slocum placed D under the care of the S school board Slocum and Metropolitan are entitled to recourse indemnity or alternatively contributionagainst the school board to the extent of his liability to Ms Miller In White v Naquin 500 So 436 La App 1 Cir 1986 another panel 2d st of this court was presented with virtually identical facts and the same issue of whether a defendantthirdparty plaintiff could obtain indemnification from the s plaintiff employer when the plaintiff received workers compensation benefits for the injury sued upon In White the plaintiff was a bus driver for the Ascension Parish School Board and was injured when she bumped into or was tripped by a minor student on the grounds of East Ascension High School The plaintiff was paid workers compensation benefits for the injury she sustained but the plaintiff also filed suit against the student father Naquin and his homeowner insurer s s Naquin and his insurer filed a thirdparty demand against the Ascension Parish School Board seeking indemnification of any amounts for which they were held liable on the basis that the employees of East Ascension High School failed to properly supervise Naquin daughter The Ascension Parish School Board sought s C dismissal of that claim contending that its liability was limited to workers compensation benefits Naquin contended that the Ascension Parish School Board was liable for indemnification not in its capacity as the plaintiffs employer but in its capacity as the custodian of Naquin daughter while she was on school s grounds In rejecting this dual capacity argument this court concluded that it would be inconsistent with the spirit of the Workers Compensation Act to require the Ascension Parish School Board to indemnify Naquin for damages to the plaintiffemployee because it would allow the plaintiffemployee to recover tort damages albeit indirectly from the Ascension Parish School Board when its liability to the injured employee is limited exclusively to the payment of workers compensation benefits White 500 So at 437438 2d A dissent was filed in White which argued that the majority had confused the issue of the Ascension Parish School Board liability to the plaintiff under s workers compensation with its completely separate liability to Naquin under La C art 2318 and that the defendant party plaintiff Naquin had the right to third seek indemnity Slocum and Metropolitan urge us to follow the dissenting opinion in White however the majority holding in Whitethat a defendant s thirdparty plaintiff is not entitled to indemnification from the plaintiffs employer when the plaintiff received workers compensation benefits for the injury sued uponhas been the law of this circuit since 1986 Moreover the supreme court in Stelly v Overhead Door Company of Baton Rouge 940569 p 5 La 12 646 94 8 2d So 905 910 has cited this court decision in White with approval s Accordingly because we are unable to distinguish White from the case before us we are bound by its holding Therefore after reviewing Slocum and s Metropolitan reconventional demand against the school board and accepting all 3 Without an en bane reversal we are bound by a previous decision of this court based on the rules of the First Circuit Court of Appeal 61 of those allegations as true for purposes of the exception raising the objection of no cause of action we agree with the trial court and find that Slocum and Metropolitan have not stated a cause of action for which the law affords a remedy Under White Slocum and Metropolitan are not entitled to indemnification from the Ms Miller employer the school board since Ms Miller has received s workers compensation benefits for the injury sued upon Therefore the July 26 2010 judgment of the trial court sustaining the school s board peremptory exception raising the objection of no cause of action and dismissing Slocum and Metropolitan claims against the school board is affirmed s All costs of this appeal are assessed to the appellants Metropolitan Property Casualty Insurance Company AFFIRMED 31 D P Slocum and
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