Dodson v. Old Republic Ins Co

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30917
Summary Calendar
RICHARD R. DODSON,
Plaintiff-Appellee,
versus
LOUISIANA WORKERS' COMPENSATION CORPORATION,
Intervenor-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-3041-N)
January 20, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Richard Dodson, Jr. was injured in an auto accident while in
the scope and course of his employment with Ameritek Heat Treating
Services, Inc. Ameritek had an insurance policy with Old Republic
Insurance Co., which included uninsured/underinsured motorist
coverage. The policy contained an exclusion that provided "[t]his
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." Ameritek also had a policy of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
workers' compensation insurance with Louisiana Workers'
Compensation Corporation. Louisiana Workers' Compensation Corp.
has paid benefits as a result of Dodson's injury, and so has Old
Republic.
Louisiana Workers' Compensation Corp. intervened in Dodson's
suit against Old Republic, seeking, inter alia, dollar-for-dollar
credits against future obligations for amounts paid by Old Republic
as a result of Dodson's injury. Old Republic and Dodson filed
motions for summary judgment seeking dismissal of Louisiana
Workers' Compensation Corp.'s claims, and Old Republic also sought
credits in the amount of Louisiana Workers' Compensation Corp.'s
payments. Louisiana Workers' Compensation Corp. moved for summary
judgment on its claims for subrogation, reimbursement and credits
for future obligations. The district court granted Dodson's and
Old Republic's motions, holding that Old Republic was entitled to
a credit in the amount of Louisiana Workers' Compensation Corp.'s
payments and dismissing Louisiana Workers' Compensation Corp.'s
claims. Louisiana Workers' Compensation Corp. appeals one issue:
the district court's determination that it was not due credits for
future obligations.
Under Louisiana law, a workers' compensation insurer has a
right of reimbursement against "legally liable third persons." See
LSA-R.S. 23:1101. "Third persons" includes uninsured/underinsured
motorist insurers. See Travelers Ins. Co. v. Joseph. 656 So.2d
1000, 1003 (La. 1995). However, in Travelers, the Louisiana
Supreme Court held that an uninsured/underinsured motorist insurer
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may exclude reimbursement of the workers' compensation carrier in
its policy. See 656 So.2d at 1005 (La. 1995). The court found no
statutory prohibition on a contractual exclusion of reimbursement
the compensation carrier might otherwise recover. See Travelers,
656 So.2d at 1004.
The exclusion contained in Old Republic's policy is the same
as that examined by the Louisiana Supreme Court in Travelers.
Following Travelers, Louisiana appellate courts have held that the
contractual language "direct or indirect benefit" covers credits or
reimbursements against future obligations of a compensation carrier
as well as reimbursement of compensation already paid. See Landry
v. Martin Mills, Inc., 737 So.2d 58, 62 (La. App. 3 Cir. 1999),
writ denied, 1999 WL 408136 (La. June 4, 1999); LeJeune v.
Brewster, 722 So.2d 74, 76 (La. App. 1 Cir. 1998); Watson v.
Funderburk, 720 So.2d 808-810-11 (La. App. 3 Cir. 1998), writ
denied, 736 So.2d 834 (La. 1999); Cleaning Specialists, Inc. v.
Johnson, 695 So.2d 562, 565 (La. App. 4 Cir. 1997), writ denied,
701 So.2d 210 (La. 1997). These courts would deny Louisiana
Workers' Compensation Corp. the credits it claims.
If a state's highest court has not decided an issue, we must
determine as best we can what that court would decide. See St.
Paul Fire & Marine v. Convalescent Servs., 193 F.3d 340, 342 (5th
Cir. 1999). Louisiana Workers' Compensation Corp. argues that
Watson and Cleaning Specialists were wrongly decided because these
decisions allow parties to an uninsured/underinsured motorist
policy to extinguish a workers' compensation carrier's right to
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credits against its future obligations. Absent a decision from a
state's highest court, a decision of an intermediate state
appellate court "is a datum for ascertaining state law which is not
to be disregarded by a federal court unless it is convinced by
other persuasive data that the highest court of the state would
decide otherwise." West v. American Tel. & Tel. Co., 311 U.S. 223,
237 (1940). We are persuaded Louisiana Workers' Compensation Corp.
is not entitled to the credits it seeks.
AFFIRMED.
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