Advantage Personnel & Louisiana Safety Association of Timberman VS Aaron L. Vancleave
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2013 CA 1618 ADVANTAGE PERSONNEL AND LOUISIANA SAFETY ASSOCIATION OF TIMBERIVIEN VERSUS AARON L. VAN CLEAVE Judgment Rendered: AY 0 o1 F On Appeal from The Office of Workers' Compensation, District 5, In and far the Parish of St. Helena, State of Louisiana Trial Court No. 10- 11072 The Honorable Jason Ourso, Workers' Compensation Judge Presiding John A. Keller Attorney for Plaintiffs/Appellants, Madisonville, Louisiana Advantage Personnel and Louisiana Safety Association of Timbermen Elliott J. Redmond Attorney for Defendant/Appellee, Gonzales, Louisiana Aaron L. Van Cleave BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ. e.. u. oy riu; r', a.x ` ao, . CRAIN, J. In this workers' compensation proceeding, an employer and its cornpensation insurer sought a judgment releasing them from future liability for benefits or, in the alternative, granting them a credit against future benefits because the injured employee allegedly settled a claim against a third person without the written approval of the employer or the insnrer. The workers' compensation judge WCJ) denied the request. We affirm. FACTS AND PROCEDURAL HISTORY Aaron L. Van Cleave sustained severe injuries in a head- on collision that occurred when an oncoming motorist crossed the centerline of a roadway and impacted a truck occupied by Van Cleave as a guest passenger. Van Clea e' s host driver, Allen Marchand, was killed in the accident. The adverse driver, Arthur Temple, was issued multiple citations, including operating a vehicle while intoxicated, and the investigating officer concluded that Temple' s actions were the cause of the accident. The truck occupied by Van Cleave was insured by General Insurance Company of America pursuant to a policy of commercial automobile liability insurance. Van Cleave and Marchand' s family agreed to equalty split the General Insurance policy Cleave a check limits in the of $1, amount 000, 000. 00, and General Insurance issued Van of $500, 000. 00. Van Cleave and his wife later executed a settlement agreement that included a release of General Insurance and a release of the estate of Marchand, and his company, Marchand Machinery, although the Van Cleaves reserved their rights against those two parties to the extent they were insured by a non- settling insurer. At the time of the accident, Van Cleave was in the course and scope of his employment with Advantage Personnel, who, through its workers' compensation carrier, Louisiana Safety Association of Timbermen, began paying workers' z compensation benefits to and on behalf of Van Cleave. After Van Cleave received the $ 500, 000. 00 payment from General Insurance and executed the settlement agreement, Advantage Personnel and Timbermen led a " Disputed Claim for Compensation" ( Form 1008 Claim) asserking that under Louisiana Revised Statute 23: ll02 they were entitled to a credit against future benefits as a result of Van Cleave' s settlement. They subsequently asserted that under Section 23: 1102B, the settlement resulted in a complete forfeiture of future benefits because Van Cleave did not obtain written approval from Advantage Personnel or Timbermen before entering the settlement. Advantage Personnel and Timbermen filed a motion for summary judgment seeking a judgment as a matter of law on the issues raised in their Form 1008 Claim. In support of the motion, they relied on a copy of the settlement agreement, a certified copy of the General Insurance automobile policy, and a copy of a petition on behalf of Van Cleave and his wife against numerous defendants in state district court (" tort suit petition"), filed after execution of the settlement agreement. The tort suit petition included Marchand Machinery as a defendant based upon allegations that an employee had disengaged the passenger- side air bag and that Marchand failed to re- engage the air bag prior to the collision.l In opposition to the motion, the Van Cleaees argued that the payment from General Insurance consisted entirely of underinsured motorist benefits (" iJM") and did not trigger the forfeiture or credit provisions of Section 23: 1102B because the policy excluded any UM coverage for the benefit of a workers' compensation insurer. They further argued that Marchand and Marchand Machinery were not third person[ s]" as that phrase is used in Section 23: 1102 because the movers had not proved that Marchand or Marchand Machinery were at fault or otherwise liable for the accident and injuries sustained by Van Cleave. Marchand Machinery is named in the tort suit petition as " Mazchand Machinery Maintenance Co. K, LLC." 3 The Van Cleaves offered numerous e ibits, including a certified copy of the General Insurance policy that included a coverage section for " LOUISIANA LJNINSLIRED MOTORIST COVERAGE BODILY INJURY." That section contains an exclusion providing that the insurance does not apply to the " direct or indirect benefit of any insurer or self-insurer under any workers' compensation, disability benefits or similar law." The Van Cleaves also offered a copy of the 500, 000. 00 check from General Insurance that has a notation of" UIM BP' under a caption of" COVERAGE," and an affidavit from Van Cleave wherein he attested that the settlement with General Insurance was under the IIM coverage of the insurance policy. As to any potential liability of Marchand and Marchand Machinery, Van Cleave further swore that he had " no knowledge as to who or when and even if the passenger side air bag in the Marchand pick up [ truck] was turned off prior to the collision." The WCJ denied the motion for summary judgment. Thereafter, the request for a forfeiture or credit proceeded to a trial. By consent of the parties and order of the court, the matter was tried based upon the e ibits submitted by the parties. In addition to the exhibits previously filed in connection with the motion for summary judgment, the parties filed a copy of the uniform motor vehicle accident report generated by the Louisiana State Police and affidavits of representatives of Advantage Personnel and Timbermen who confirnaed that worker' s compensation benefits were paid to Van Cleave and that neither the employer nor the workers' compensation insurer approved or had been notified of the settlement prior to its execution. Pursuant to written reasons for judgment, the WCJ found that Advantage Personnel and Timbermen had not met their burden of proving that Van Cleave forfeited his right to future workers' compensation benefits or that the plaintiffs were entitled to a credit for the settlement, which the WCJ referred to as " the 4 uninsured motarist settlement." The court further found that the General Insurance policy clearly and unambiguously excluded Timbermen from receiving any type of direct or indirect benefit as a result of the UM settlement, and that the exclusion was not against public policy. The court relied upon Travelers InsuYance Company v. .Ioseph, 95-0200 (La. 6/ 30/ 95), 656 So. 2d 1000, wherein the supreme court held that a iTM carrier can validly exclude coverage for the benefit of a warkers' compensation insurer, and found that Travelers Insurance Company had not been overruled by more recent supreme court decisions addressing the reduction in liability of a UM insurer resulting from payments to the insured by a workers' the compensation arguments set insurer? The WCJ adopted as further reasons for judgment forth in the pre- trial brief filed on behalf of Van Cleave. A judgment was signed in favor of Van Cleave and against Advantage Personnel and Timbermen, denying any and all requested relief on all issues and dismissing the proceeding with prejudice. Advantage Personnel and Timbermen now appeal the judgment and assert that the WC7 erred ( 1) in denying the motion for summary judgment, (2) in concluding that the settlement agreement was a settlement of UM claims only, ( 3) in finding that Van Cleave did not forfeit his right to future benefits by entering into a settlement with a third party without the written approval of the employer and/or insurer, ( 4) in concluding that Travelers Insurance Company and the LJM exclusionary provision in the General Insurance policy was controlling rather than Louisiana' s laws on solidary obligors, and ( 5) in concluding that Van Cleave' s receipt of $500,000. 00 from General Insurance did not entitle the appellants to a credit against their obligation to pay future workers' compensation benefits to Van Cleave. 2 See Bellard v. American Cenh-al Insurance Co., 07- 1335 ( La. 4/ 18/ 08), 980 Sa 2d 654, 666, and Cutsinger v. Redfern, 08- 2607 ( La. 5/ 22/ 09), 12 So. 3d 945. 5 LAW AND ANALYSIS A. Denial of Motion for Summary Judgment Advantage Personnel and Timbermen first contend that the WCJ erred in denying their motion for summary judgment' A motion for summary judgment may be granted only if" the pleadings, depositions, answers to irzterrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, Code Civ. Pro. art. and that mover 966B( 2) ( priar to judgment as is entitled to amendment by a matter of law." La. La. Acts 2013, No. 391, § 1). The party seeking summary judgment has the burden of proving an absence of a genuine issue of material fact. La. Code Civ. Pro. art. 966C. If the movant satisfies the initial burden, the burden shifts to the party opposing summary judgment to present factual support sufficient to show he will be able to satisfy the evidentiary burden at trial. La. Code Civ. Pro. art. 966C( 2); Suire v. Lafayette City Parish Consolidated Government, 04- 1459 ( La. 4/ 12/ OS), 907 So. 2d 37, 56. In the motion for summary judgment, Advantage Personnel and Timbermen alternatively claim that ( 1) Van Cleave forfeited his right to future benefits by failing to get written approval of the settlement, or ( 2) movers are entitled to a credit against future benefits in the amount of$ 500, 000. 00, the full amount paid to the Van Cleaves in the settlement. Since Advantage Personnel and Timbermen bear the burden of proving their right to a credit or a farfeiture of future benefits, they were obligated to prove that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law on one of these alternative claims. See High School Athletics Association, Inc. v. State, 12- 1471 ( La. 1/ 29/ 13), 107 So. 3d 583, 599. 3 The denial of a motion for smmnary judgment is generally a non-appealable, interlocutory judgment; however, it may be reviewed on an appeal of a final judgment in the suit. See La. Code Civ. Pro. arts. 968 and 2083; Starkey v. Livingston Parish Council, 12- 1787 ( La. App. 1 Cir. 8/ 6/ 13), 122 So. 3d 570, 573 n. l. 6 Advantage Personnel and Timbermen rely upon Section 23: 1102B, which provides as follows: If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee ar his dependents far any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, sess attorne fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or priar to such compromise. Written approval of the compromise must be obtained from the employer if the empioyer is self-insured, either in whole or in part. If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including 4 medical expenses. . . . Under this provision, an employee is obligated to obtain written approval from the employer or compensation insurer of a compromise with a third person; and, if he fails to do so, the employee forfeits his right to future benefits. If the employee secures the required approval, he preserves his right to future benefits, but the employer and compensation insurer are entitled to a credit against the payment of future benefits in the amount of the settlement By its express terms, the statute is only applicable to a " compromise with [ a] third person." Section 23: 1101A defines " third person" as a person who has a legal liability to pay damages," stating as follows: When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person ( in this Section referred to as " third person") other than those persons against whom the said employee' s rights and remedies are limited in R.S. 23: 1032, a legal liability to pay damages in respect thereto, the afaresaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, 4 Section 23: 1102B concludes with a" buy back" provision whereby an employee who failed to secure the necessary settlement approval may reserve the right to continued compensation benefits by reimbursing the employer or insurer the total amount of benefits previously paid to or on behalf of the employee, exclusive of attorney fees. This " buy back" provision is not at issue in the present case. 7 relations, or p rsonal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against uch third person to recover damages for the injury, ar compensable sickness or disease. See also Travelers Insurance Company, 656 So. 2d at i0 J2; Johnson v. Fireman' s Fund Insurance person' s " legal Company, liability 425 So. 2d ? 24, to pay darnages," 27 ( La. 1982). 5 In the absence of a an employee' s compromise with that person does not invoke the requirements or consequences of Section 23: 1102B. See Champagne v. State, Louisiana State University, 01- 0242 ( La. App. 1 Cir. 3/ 28/ 02), 819 So. 2d 1059, 1065 ( finding that Section 23: 1102B' s consent and forfeiture provisions did not apply to a settlement with a pariy who was entitled to workers' compensation immunity and, therefore, did not have a " legal liability to pay damages," and where second accident did not aggravate original injury); Ca?lihan v. Gulf Coast Marines, Inc., 97- 1705 ( La. App. 1 Cir. 5/ 15/ 98), 714 So. 2d 199, 202, writ denied, 98- 1633 ( La. 9/ 25/ 98), 725 So. 2d 489 ( party responsible for second accident was not a third person under Section 23: 1 IO2B because second accident did not aggravate wark-related injury). 1. Compromise with Insurance in its Marchand, CaPacify Marchand Company, and General Liability Insurer6 as Advantage Personnel and Timbermen argue that the undisputed evidence established that Van Cleave compromised his claims against Marchand, Marchand Machinery, and General Insurance by releasing them in the settlement agreement, and Van Cleave' s failure to obtain employer approval of the compromise mandates a forfeiture of future benefts. However, the inclusion of those parties in the settlement agreement, alone, does not invoke the provisions of Section 23: 1102B; rather, the movers were required to present undisputed evidence that Marchand, 5 The phrase also includes any party who causes an aggravation of the employment related injury. La. R.S. 23: 1 lO1C. 6 General Insurance in its capacity as a UM insurer for Van Cleave is addressed subsequently in this opinion. 8 Marchand Machinery, and General Insurance, as rheir liability insurer, had a " legal liability to pay damages" to Van Cleave for the compensable injuries. See La. R.S. 23: 1102A and B; La. R. S. 23: 11_OIA; La. C de Civ Pro: Insurance Com any, 556 o. 2d 819 So. 2d a.t 1065; C zllihan, ; at IOQ2; ., Tc hra,s 3 4 S. 2c at n, art. 25 So. 2d 966B( 2); at ? 27; Travelers hampagne, 02. Advantage I'ersonneI nci ' iflnberznen arg: e th t an alle at? in tlhe tort suit o petition and the $ 500, 00?. 90 setYlement Marchand Machir_ ery' s ci eck legal both conclusive evidence of a: liability to pay damages." We Marchand and disagree. The allegation in the tort suit is that an employee of Marchand " Machinery turned off the passenger side air bag and that Marchand, as the president of the company, failed to notice the disengaged air bag and did not turn it back on. This allegation was contradicted by the affidavit of Van Cleave wherein he stated that he had " no knowledge as to who or when and even if the passenger side air bag in the Marchand pick up [ truck] was turned off prior to the collision." No other evidence was presented to the effect that the air bag was manually turned off. The cause of tihe air bag failing ta deploy presented an unresolved issue of material fact. Additionally, whether ti e $ SOO, OQ0. 00 ttlement ch ck from General Insurance uas issued under the iiab lit}- coverage or the polzcy or was for UM benefits only presented an issue of r.aterial fact. The check indicates on its face l that it was issued under the " UIM" coverage, an3 Van Cleave attested in his affidavit that the settlement was under the UM portion of the General Insurance policy. Again, this evidence was sufficient to preclude summary jndgment. Advantage Personnel nd Timberznen also contend that regardless of whether Marchand and Marchand Machinery are at fault for cau5ing the accident, their mere rele se vvithout Van Cleave first obtaining writtexi approval is sufficient to warrant the application of Secti n 23: 1102B. For support movers cite Looney v. 9 Glassc ck DYidding, 25 l Sa: 2d i ( 993), writ a'enied, 630 So. 3 Cir. La. . 2d 788 ( La. 1y94); hmwever, [ hi cc urk has pxeviously expressed its disagreement with the holding a oc I, ney c ned to f lic w t. See C' ailid an, 714 So. 2d ai and 202. More a= ry I., zey is distingaaislh bX ir abr tre '' ct of t.' cas, oa ni5 In injury injure aaney, : and beca: ne surgery hematoma era his lef rara'. yzed nr, was allowed back ee umderuen p ¬ io sr r e ' hn his remain on urgery f Yhe tiu3ist spine. r his wn r- related after a post- The employee filed a medical malpractice claim against the surgeon, which was settled for the 500, 000. 00 limit under the medica mal ractiie act. Looney, 625 So. 2d at 1110. The settlement was not approved by the employer, and the c.ourt affirmed a finding that the employee forfeited his right to futur benefts. The issue in I, 00ney uas whether the p zralysis thai occurred while the employee was receiving r edica compensable as a are far a a earlier injury sustained on the job was work- related irzjurv. so approval of the settler The cc urt found that it was work-related, s reqeaired. ent L eoney, 625. So. 2d at 1111-]. I12. The surgeon' s liability or fault for caus n xhe injury ivas not disputed, and the court of appeal specifically h ld: We find that Dr. Bernauer was a Phird person pursuant to LA.R.S. 23: 1101 and that the notice and consent provisions of 23: 1102 are triggered because L o: aey would have had the right to receive worker' s com. pensation b nefits as a resudt of the injuries he sustainad by Dr. Bernauer' s malpractice, and Glasscock would hai e a cause of action for Yeim$ ursem:,nt against d r, Beznauer undex La. R.S. 3: 1101. Looney, 625 So: d at 1112 ( em has: s dded. Those facts aYe distinguishable from the present ca e where the evidence presented ir connectiorA with ttie nnotion for summary ju lgm.ent estab ished that ?he alleged fault of Marchand and Marchand 1Vlackcinery for causing any injury to Van Cleave was contested. Looney offers no support for the p oposition that a released party need not be at fault to trigger Section 23: 1102B. sa Advantage Personnel and Timbe. rne r also cite Grimmer v. Beaud, 537 So. 2d 299 ( La. App. 1 Cir. 1988), x Nit denied, S3Fs So. 2d 613 ( La. 1989); Bennett v. Triniry Universal Insurance Company, OS- 1957 ( La. App. 1 Cir. 9/ 15/ 06), 943 So. 2d 1104; and, Laver^ v. Quaiity FabricatQrs ofEunicF, Inc., 04- 125 ( La, App. 3 gne Cir. 12/ 8/ 04). $ 84 So. 2d 1147, writ 5deni d, 0_ O r46 ( 896 So. 2d La. 3/ 1f 105), 1007, in support of th ir assertion tha4 Sect. o n 23; 11102B does nct reqnire that the i third person actually be liable for tha employee' s damages. Of these cases, only Lavergne involves a released party who was ultimately found to be free from fault; however, more importantly, all of the cited cases are distinguishable because the courts were applying Subpart C of Section 23: 11 2, not Section Subpart B. 23: 1102C applies only when ( 1) an employee has fil d a suit against a third party defendant, ( 2) the employer or its insurer has in ervened in the suit, ( 3) the employee and third party clefendant enter a com romise without the written approval of the employer or his insurer, and ( 4) the employee fails to pay to the employer or his insurer the total amount of benefits out of the funds received from the compromise. Under those circumstances9 the third party defendant or his insurer is required to reimburse the employer or his insurer the total amount of benefits previously paid to or on behali of th eznpXoyee. La. R,S. 23: 1102C( 1); see also Grimmer, S37 So. 2d at 3Ui- 02. Section 23: 1102C( 1) is factually inapplicable to this case, and dvantage Personnel and Tirzsbermen are not attempting to enforce it in this proceeding. No intervention had been filed on behalf of Advantage Personnel ar T'imbermen when the compromise was executed, because 'the comppomise was entered into before the tort suit petirion was filed. Because ? dvantage Personnel and Timbermen seek relief in tiiis proceeding under Section 2: 1102B, the cases cited by them construing Section: 23: 1102C( 1) are not applicable. i1 The evidence offered in c nnect?ora u zth *.he m tion for summary judgment does not establish s n undisp ated fac,t th t Marchar_ and Marchand Machinery d were " third persons" legally liab3e to pay damages to Van C' leave. This issue of material fact rzcludes a suznrnaxy` j dg ment ieclaring that Van Cleave forfeited his rigYa t tv fi. tiaxe bexiefits by wnterin Marchand and Marchand Machinery , th settlame t a r emerar, and releasing ttaout t:ze approvai Uf Ad antage Personnel or Timbermen. Accordingly, the trlal coart did not err in denying the motion for summary judgment on this basis 2. General Insurance in its Capacity as UM Insurer Advantage Personnel and Timbermen alternatively argue that es en if the 500, 000. 00 payment to Van Cleave was completely under the UM coverage of the General Insurance policy, his execution of the settlement agreement releasing General Insurance triggers the application of-S ction 23: 1102B because General Insurance, as a UM insurer, is a " third person" legally liable for the compensable injury. See Travelers Insurance Corimpany, 656 So. ? d at 1002. In Ti^aveleYS Insurance Company, a compensation insurer filed su? pursuant t to Louisiana Revised Statute 23: i lOiB against the employer' s LTi insurer seeking to recover compensation benefits paid to an employee injured in an automobile accident. Travelers Insurance Company, 656 So. 2d at 1001. Section 1101B provides that an employer or compensation insurer who has paid compensation benefits may bring " a suit in district court against such third person to recover any amount which he has paid or becomes obligated to pay- as compensation to such employee or his dependents." La. R.S. 23: 1101B. The UNI insurer filzd a motion for summary judgment asserting that it was not a third person or, alternatrvely, that its policy excluded reimbursement of For these same reasons, the trial court did not err when it refused to find that General Insurance, in its capacaty as the iiability insurer of Marchand and Mazchand Machinery, was a third person" legally liable to pay damages to Van Cleave. 12 workers compensatzon payments pia: suant tc ; ri ehclus. c+ that precluded coverage n for " the direct or i xdirect 'a netzt af aa} insurer ar se:tf insur°r under ar y workers compensation, disability benefzts ar similar law." Travel rs Insurance Company, 656 So. 2d at 1001, 1003: R The rr al court granted the summary iudgment on both grounds, but the ourt of appeal rEVersed. 7`rav Zers Irssurance Company, 656 Sa 2d at 1001. The supreme coazri granted 4vrits a d eld Yhat a L'; I insurer is a " third person" legally liable to pay an employee damages resulting from a work-related automobile accident however, the cour[ further held that an employer is not statutorily prohibited from contracting with its UM insurer to exclude compensation reimbursement. Tratielers Insurance Company, 656 So.2d at 1004. Thus, a UM policy may validly exclude compensation reimbursement to a workers' compensation insurer; and such where an exclusion exists, the compensation insurer has no cause of action for reimbursement against the employer' s UM insurer. Travelers Insurance Company, 656 So. 2d at 1004- 1005. See also Bergeron 1084, 1Q88, writ v. Williams, 99- 0886 ( La. App. denied, OQ- 1697 ( La. 911510), 1 Cir. 5/ 12/ 00), 764 So. 2d 768 So. 2d 1281. Finding the policy excluded coverage for the " direct or indirect benefit oP' a connpensation insurer or self-insurer, the court granted summary judgment and dismissed the suit against the iJl insurer, Travelers Insurance ompany, 656 So. 2d at 1003- 1005. Although TNavelers InsuNarzce Company addressed tne ri ht of action granted by Section 23: 1101B to an. employer or compensation insurex aga?nst a third person I gally liable for the compensable injury, this cor rt extended the rationale of tha decision to liold that a eompensation insurer is not entitled to a credit against future benefits under Section 23` 1102B for UM benefits paid under a policy containing the same Bergeron, 764 So. 2d exclusion. at 1089. The Bergeron court con luded that disallowing a credit under those circumstances 8 The exclusion is sometime referred to herein as the" Tr,xvelers exelusion." 13 protects the employee' s xight to full reca ery as a victim of an underinsured tortfeasor and respects the righis of the empleyer and its U1 1 insurer to freely contract regarding matters not forbidden by law. Bergeron, 764 So. 2d at 1089. See also Cleaning Specic lists, Iac. v. .Fohnsoa, 96- 2 77 ( La. App. 4 Cir. S/ 21/ 97), 695 So. 2d 5 2; 56, Tolbird v. wrzt d 7- 16K7 ( La. 1/ na', a. Wyble, 3 8; 969 ( i. Ap. 2 C' r. 1_'./ 3 97j, 701 S. 2d 21; but see 1 S/ 04), 892 So. 2d 103, lll, w it denied, OS- 0444, OS- 0449 ( La. 4/ 29/ OS), 901 So. 2d 1066, 1067. Advantage Personnel and Timbermen contend that Bergeron is not controlling because it was decided prior to the decisions in Bellard and Cutsinger, wherein the supreme court held that a iJM insurer and warkers' compensation insurer are solidary obligors to the extent their obligations are co- extensive for lost wages and medical expenses. Bellard, 980 So. 2d at 666; Cutsinger, 12 So. 3d at 951- 953. The argument continues that as to a debt for which the insurers are solidarily liable (the payment of lost wages and medical expenses), the payment of the debt by one exonerates the other from liability. We find both Cutsinger and Bellard to be distinguishable. In Cutsinger and Bellard, the Louisiana Civil Code article 1794 supreme cou rt interpreted and applied hich generally goverres solidazy obligorse Neither Cutsinger° nor Bellard inv lves the interpretation of Seetion 23: ll02B. Our holding in Bergeron was based upon our interpretation of Section 23: 1102B and the policy considerations involved in its enactment and was not dependent upon the nature of the obligation and whether it was solidary or otherwise. Accordingly, we find that Bergeron is controlling in this case, and was not overruled or modified by the supreme court' s decisions in Bellard and Cutsinger. The exclusion in the General Insurance policy applicable to u orkers' compensation insurers is identical to the exclusion that was beforz the courts in Travelers Insurance Company and Bergeron. Therefore, Advan.tage Yersonnel anci 14 Timbermen are no entitled to made to the Van Cleaves 2d 1089; Cleanin at cr: tndLr Snecicalz ts, t a airisr uta ze benefits for any payrr ents z ica c f che policy. Bergeron, 764 So. the ,' I0 7 zc.; 7Ql So. ; at 65. Never h less, r dvar tage k exsc r. el aazd Tiinbermen stili cc i tend that because Van Cleave clid not otat. in yxitter Section 23: 11028, he forfe t i is p re val c f the L' 7 settleme; t under b° ne its, ture This cqntexitian cannot be reconciled with the holdings of TravElers Insurance Company and Bergeron. Under those cases, when a iJM policy contains a Travelers exclusion, the employer and its compensation insurer cannot pursue a : eimbursement claim against the UM carrier under Section 23: 1101B, nor are they entitled to a credit against future compensation benefits in the amount of the settlement under $ ection 23: 1102B. See Travelers Insurance Company, 656 S o. 2d at 1Q04- 1005; Bergeron, 764 So. 2d at 1089. V6'e see no rationale for requiring employer approval of a settlement under such circumstances. Requiring approval of the settlement by an employer or compensation insurer who has no financial interest in the settlement would serve no beneficial purpose, nor would penalizing the employee with a farfeiture of future benefits for failing to secure Yhat approval. Accordingly, the evidence offered on the motzon for sumbnary judgn; ent does not establish that Advantage Personnefl aa d Timbermen are entitled to judgment as a matter of law decflarang ather a ca°edit against fizture benefits or a forfeiture of future benefits based upon the settlemen;t of Van Cieave' s UM claixn against General Insurance, This assignment B. Trial on the Meritse Credit and f error has no merit: orfeiture of Benefits under Section 23 ll 02B Now, addres ing the issues raised following the trial, on the merits, Advantage Personnel and Timbermen assert several assignments of error concerning the determination by the WCJ that the settlement agreement did not result in the fQrfeiture of future benefits or a credir against those b nefits_ is In workers' compensation cases, the apprropriate standard of review to be applied by appellate courts is the manifest error clearly wrong standard. Smith v. Lafarge North Ame ica, L.L.C,, 112- 0337 {La. App. 1 Cir. 11/ 2/ 12), 111 So. 3d 379, 382; Dabc% v. Ter^rEbonne Gene al !Lledaccrd (' enter, 10- 213Q ( La. App. 1 Cir. son 5/ 19/ il), 6 So. 3d 622, To 626. e exse f tual £ nd ng by a workers' compensaYion jud e, the app AlatL co rt flr usY fxid ;firorn the iecord that a reasonable factual basis does not exist for the finding of the judge and th.at the record establishes that the finding is clearly ivron, Smith, 111 So. 3d at 382; Dawson, 69 So. 3d at 626. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact-finder' s conclusion was a reasonable one. Smith, 111 So. 3d at 382; Dawson, 69 So. 3d at 627. Where two permissible views of the evidence exist in a warkers' compensation case, the fact- finder' s choice between them cannot be manifestly ezroneous or clearly wrong. Smith, 111 So. 3d at 382; Dawson, 69 So. 3d at 627. 1. Forfeiture or Credit under Section 23: 1102B In assignments of error II, III, and Vy Advantage Personne: and Timbermen contend that the WCJ erred in concluding that ( I} the settlement agreement was a settlement of UM claims only, ( 2) Van C'leave did not forfeit his right to future benefits, a d compensation ( 3) appellants benefits in the wez e not amount of entitled to the settlement. a credit against future As explained above, the critical determination under Section 23: 1102B in this' case is whether Advantage Personnel and Timbermen proved that Van Cleave compromised a claim against a third person," that is, a person who had a " legal liability to pay damages" for the injuries sustained in the accidente Whether the settletr ent was limited to a LTi 1 claim only is onlv part of the evidence introduced reflative to this issue. According to the uniform motor vehicle incident report, which was led as an exhibit wbthout objection, the accident occurred when the adverse driv r, 16 Temple, crossed the centerline and impacte the Marchand truck in a head-on collision as the Marchand. tra ck , vas braking a- a nte.ring th shUUider dn its side of the road in an ppareni attempt : o avozd tY e oncc mir g Temple vehicle. Two motorisEs tsaveling ah ad of IvIa4°chan l ir iqc:ned the snvesti acir g officer that the Temple u motorists hicle h to gan veer onta crossing xtxe the sh ulder centerl'aAre af as x4 approatd ed, the roaai to a oid a collisic. fQrcin both Tt3e Temple vehicle continued across the roadway until it impacted the Marchand truck. Temple was issued multiple citat ons, including operating a vehicle while intoxicated, and the investigating officer concluded that Temple' s actions were the cause of the accident. Temple was clearly at fault in causing the accident. The settlement check was also before th court at the trial but does not support a finding of liability on the part of Marchand and Marchand Machinery. As previously noted, the check indicated on its face that it was issued under the UIM" coverage, and Van Cleave attested in his affidavit that the settlement was under the iJM portion of the General Insczrance policy. However, the policy declaration page identifies only $ IOQ, OQ0. Q0 in UM coverage and $ 1, 000,000. 00 in liability limits, which suggesis that at leasY some of t e settlement funds were paid under the policy' s liability caverage. A certified copy of the General Insurance policy was adrr ittad into evidence and contains only a blank, unsigned UM rejection form. No other evidence of UM rejection was introduced, The blank, unsigned UM rejection form does not reflect a - alid rejection of' UM coverage or selection of lower limits. Absent a valid rejection or selection of lower LTM limits, the General Insuraaice policy provided LTl 1 c ve ag in a amount equal to the liability limits af$ 1, 000, 006. 00 See La. R.S. 22: 1295( 1)( a)( ij. Th.e settlement agreement reflects that the Van Cleaves " agreed to split the policy limit . , . an a SO/ 50 basis with the Marchand family." Marchand was the driver of the insured vehicle, so any payment to his family under the policy was v necessariiy l; mited to the UI4 cu3 era e. Nlarchand' s family had no claim to any proceeds under the liability coverage of the oiicy because that coverage protects Marchand ( the insured driver) agaanst claims by other parties; it does not provide first-party coverage for Mar.c iand' s injurzes. 9 Based on tb.e evidence presented, the lower court' s conaiu. in the amount ion thaY tkie GeraeraD. T 1, 00O, OOeJ. 4C of and adu a ace pe tk at tk e ., cy I coverage c.c ntzit?. ' ed I Qlicy lzmit w-as eyu l.y split between the Van Cleaves and the Marchand fa.mily vvas reasonable and not clearly wrong. We find no manifest error in. the conclusion by the WCJ that Advantage Personnel and Timbermen did not meet their burden of proving that d'an Cleave forfeited his right to future workers' compensation benefits ar that the claimants were entitled to a credit against those benefits pursuant to Section 23: 1102B. 2. Credit for Payment by Solidary Obligor under Louisiana Civil Code Article 1794 In the remaining assignment of error, appellants contend that the trial court erred in failing to apply the law of solidary obligQrs providing that payment by one solidary obligar relieves La. Civ. Code art. the 1794. other solidary obligor of liability ko the oblige. See Relying on the holdings in Bel ard and Cutsinger, Advantage Personnel and Timbermen argue that they are solidary oblagors with General Insurance for the payment of lost wages and medzcal expenses for Van Cleave, so the $ 500,000. 00 payment by General Insiu ance extinguisheri their obligation to pay future benefits up to the amount of that payment. The workers' compensation insurer and L1M insurer are solidary obligors only to the extent that their obligations are co- e ensive for lost wages and medical expenses. Cutsinger, 12 So. 3d at 951- 952; Bellard, 980 So. 2d at 666. The insurers are not s lidary obligor. for other damages, such as pain and suffe: ing or s 9 The liability portion of th policy contains the typical insuring agreement whereby the insurer agrees to pay " ali sums an ` insured' legally must pay as damages" cansed by an accident and subject to variaus exclusions. 18 loss of consortiazm, becaus the workers' cozn e nsation insurer has no liability far ttaose damages undeY ' he mect exclusiv; rnyisian af the re rkers' compensation act. See La. R.S, 2: 1032. I'he payment r cord , dntain consiste compensation of re.» n, lost wa. t r * ther daznage pf h w ma h, if acay, of trie and rriac ic.: vxpenses, t"iat ane re:;;: verable r y the ,' as Sf?0, 000.00 ppc ed to an Cleaves only from General Insurance. Accordingly, Advantage Personnel and Timbermen failed to prove to what extent, if any, General Insurance paid the parties' solidary obligation for medical expenses and lost wagec o CONCLUSION Finding no errors by the VVCJ, we affirm the August lb, 2012 judgment denying the claimants' motion for .summary judgment and the March 7, 2013 judgment denying all reliefto the claimants and dismissing he case with prejudice_ A11 costs of this appeal are assessed to Advantage Persoi ra.e and Louisiana Safety Association of Timbermen. FFIRMED. 10 In light of the ai sence of any evidence of pavment of the solidary obligation, we pretermit discussion of whether an empAOyer or ompensation ins aser cam seek a credit ander Firticle 1? 94 for a payment b; a third pexson to the employee, or whether Section 23- 1102B exclusively governs tha crediY, xf an} r, arising out of such a payment. 19 STAT ADVANTAGE PERSONNEL AND OF LOUISIANA LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN S`TATE OF LOUISIANA VERSUS GOtiRT OF APPEAL AARON L. VAN CLEAVE N G' iBER 2013 CA 1618 WHIPPLE, C.J., con urring. The crucial issue in determining whether Van Cleave was obligated under LSA-R.S. 23: 1102( B) to giv notiee ( and obtazn writ en approval) of his settlement is whether the workers' compensation insurer would liave had a cause of action for reimbursetnent of benefits paid under LSA- R. S. 22: 1101. Allstate Ins. Co., 554 So.2d 1261, 1266 ( La. App. Hanover Ins. Co. v. lst Cir. 1989). Accordingly, the critical fact herein is simply whether the settlement was tendered pursuant to the UM provisions of the policy or the general liability provisions of the policy. If tendered pursuant to the LIM provisions, the H orkers' compensation insurer would not have a cause of action for reimbursernent oI benefits, regardless of the settlement, because the LTM provisions of the General Insurance policy contain a Travelers' Travelers Ins. Co. v. Joseph, 95- 0200 ( La. 6/ 30/ 95), 656 exclusion." So. 2d 1000, 1005 ( A LJM insurer may expressiy exclude a compensation insurer' s reimbursement in its UM policy under the Civil C'ode' s freedom to contract on all matters not forbidden by law or public policy.) See also, Bergeron v. Williams, 99- 0886, 99- 0887 ( La. App. lst Cir. 5/ 12/ 00), 764 80.2d 1084, 1089, writ denied, 2Q00- 1697 ( La. 9( 15/ 00) ( Where UM policy has a Travelers' exclusion, it precludes a compensation insurer' s right to claim a future credit, just as it precludes the right to claim reimbursement.) When the motion for summary judgment was denied, genuine issues of material fact existed as to whether the settlement was tendered pursuant to the LJM provisions of the policy or the general liability provisions. Accordingly, I concur 1 with the result reached by the majarity°, finding the trial court did not exr in denying the motion for summary judgment. Moreover, after a trial on the marits, the trial court concluded that the settlement agreement was a sett ernent of L elaims only. Based on the evidence in the record, as summarized by the majority, this factual finding was not clearly wrong. Based on this finding, the workers' compensation insurer would not be entitled to reimbursement or future credit, given the specific exclusionary language in the UM provisions of the policy, and accordingly, Van Cleave should not be penalized under LSA-R. S. 23: 1 i02(B for his failure to obtain the compensation insurer' s approval ofthe settlemenz. t Thus, I concur in the result reached by the majority, finding the trial court did not err in denying relief to Advantage Pexsonzlel and Timbermen and dismissing the case with rejudice.` Due to the quasi- penal nature of S etion 23: 1102( Bj, it must be strictly construed. Johnson v. Star Enterprises, 97- 461 ( La. App. Sth Cix. 12/ 10/ 97), 704 So. 2d 857, 860; Fausht v. Ryder/ P* I* E Nationwide. Inc., 543 So. 2d 918, 924 ( La. App. lst Cir. 1989), writ denied, 545 So. 2d 1040 ( La. 1989). ZCt.Bennett v. Arkansas B1ue Cross Blue Shield, 2011- 1180 ( La. App. lst Cir. 2% 12), 91 13/ So. 3d 356, 360- 36L ( The workers' compensation claimant forfeited her right to future compensation under LSA-R.S. 23: 1102( B) by settling her third-party tort action without the consent of her employer or her employer' s workers' compensation insurer. The lease agreement between employer and the third-party tortfeasor provided that the employer waived all subrogation rights against the tortfeasor. However, in a prior decision, this court determined that the waiver in the lease did not apply to the claimant' s allegations related to defects in the tortfeasor' s property. Thus, the subrogaYion clause of the lease did not excuse the claimanYs failure to obtain her employer' s approval of the settlement.) 2
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