Duarte-Ortega v. Disaster Recovery Services, LLC , 2012 La. App. LEXIS 1788 ( 2012 )

h WRIT DENIED

Disaster Recovery Services, LLC d/b/a D R Services (relator-employer) and Dallas National Insurance Carrier (relator-insurer), seek this Court’s supervisory review of the trial court’s ruling granting plaintiffs Motion to Compel Retainer of Licensed Claims Adjuster in accordance with LSA-R.S. 23:1161.1. Upon review of the writ application, the opposition thereto, and the reply to the opposition, on the showing made, we find no error in the trial court’s ruling. We find that reading this statute in its entirety in pan materia with other statutes found in Title 22 (the Insurance Code), such as LSA-R.S. 22:337, provides a proper basis for the trial court’s conclusion that LSA-R.S. 23:1161.1 requires the relator-insurer to either establish and maintain a claims office within the state of Louisiana or retain a Louisiana licensed claims adjuster. Accordingly, we find no abuse of discretion in the trial court’s ruling.

We also find that the trial court had jurisdiction to consider plaintiffs motion. Plaintiffs motion sought enforcement of LSA-R.S. 23:1161.1, and therefore was a claim or dispute for application of the Workers’ Compensation Act and the special remedies therein. Wilson v. Louisiana Safety Ass’n of Timberman, 29,263 (La.App. 2 Cir. 2/28/97), 690 So.2d 974, 979. Plaintiffs motion did not seek a ruling imposing the statutory penalties on the relator-insurer found in the Insurance Code (such as those found in LSA-R.S. 22:337, involving the refusal, suspension, or revocation of the relator-insurer’s certificate of authority) for its non-compliance with LSA-R.S. 23:1161.1.

Further, the issue of the constitutionality of LSA-R.S. 23:1161.1 was not raised in the trial court, and therefore is not properly before this Court at this time.

For the foregoing reasons, this writ application is denied.

/s/ Jude G. Gravois JUDGE JUDE G. GRAVOIS

/s/ Marc E. Johnson JUDGE MARC E. JOHNSON

/s/ Robert A. Chaisson JUDGE ROBERT A. CHAISSON