author: | .PARRO, J.

text:
    Roger Paul CARIGNAN v. LOUISIANA COMPRESSOR MAINTENANCE COMPANY and Louisiana Workers’ Compensation Corporation.
    No. 2002 CA 0180.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 30, 2002.

      Frank A. Bruno, New Orleans, for Plaintiff-Appellee Roger Paul Carignan.
    Ashley Ragusa, Johnson, Stiltner & Rahman, Baton Rouge, for Defendants-Appellants Louisiana Compressor Maintenance Company and Louisiana Workers’ Compensation Corporation.
    Before: PARRO, JAMES, and PATTERSON, JJ.

      . Judge A. Clayton James, retired from the Twenty-Second Judicial District Court, and Michael A. Patterson are serving as judges pro tempore by special appointment of the Louisiana Supreme Court.

   | .PARRO, J.

In this workers’ compensation case, an employer appeals the judgment of the Office of Workers’ Compensation Administration granting its former employee’s claim for continued supplemental earnings benefits (SEB). For the following reasons, the judgment is amended and, as amended, affirmed.

Factual Background and Procedural History

On January 11, 2000, Roger Carignan (Carignan) was working in the course and scope of his employment as a mechanic’s helper with Louisiana Compressor Maintenance Company (LCM) when he sustained a crushing injury to the thumb on his right hand. Two days after the accident, Car-ignan returned to work with instructions from his treating physician that he be limited to work involving the use of one arm. Based on this restriction, he was assigned to work in the tool room. While working in the tool room, Carignan’s pay was based on the same hourly rate that he earned as a mechanic’s helper, $11.25 per hour. As a tool room worker, Carignan had the opportunity to work at least 40 hours per week. Check stubs reflect that Carignan worked less than 40 hours during some weeks. Carignan acknowledged that he sometimes left work early on Fridays so that he could get to his home in Carriere, Mississippi, sooner. Carignan complained to his supervisors that the job in the tool room required that he lift tools with both hands in violation of the work restrictions assigned by his treating physician. He was authorized to seek the assistance of the person who requested tools in retrieving the items. Additionally, Shawn Cannon (Cannon), LCM’s human resources manager since April 2000, was informed by Car-ignan that the men were giving him a hard time and accusing him of not working up to his capability. Cannon testified that he assured Carignan that he was being productive and that he had a job for as long as he was capable of performing the required duties of a tool room clerk. Nonetheless, Cannon confirmed that his assignment |3to the tool room was temporary and would end when his help was no longer needed there or Carignan was released to full duty and could return to his job as a mechanic’s helper.

On Friday, May 5, 2000, after being treated conservatively for four months, surgery was performed on his right thumb. Carignan testified that he returned to work on the following Monday. In June 2000, while Carignan was contemplating leaving LCM, Cannon advised Car-ignan that LCM was in the process of finalizing a contract with an offshore customer. The contract would require, among other employees, two maintenance coordinators. Cannon informed Carignan that he was being considered for one of the maintenance coordinator positions, which was to pay $20 per hour, because of his computer skills and maintenance background. Carignan visited the job site and advised Cannon that he was interested in the job. Admittedly, the maintenance coordinator position, which was of a sedentary nature involving mostly inside computer work scheduling maintenance for compressors used in the oilfield, was within his physical capabilities. Carignan was notified that he would be given one of the positions as soon as the contract was finalized. Cannon acknowledged that at the time the job was offered to Carignan, LCM was not sure that negotiations would result in it being awarded the contract. Nonetheless, based on negotiations that had taken place thus far, LCM had a good feeling that it would be granted the contract.

Carignan’s attendance card indicates that he last reported to work in the tool room on Thursday, July 20, 2000. However, his check stub reveals that he was paid for 37.25 hours of regular time during the week of July 22 to July 28, as well as five hours of regular time for the July 29 through August 4 pay period. According to Carignan, he decided to quit his job at LCM because he thought that he had no future with LCM and that it was time to find something else. Cannon testified that Carignan simply stopped showing up for work, without notice.

By mid August 2000, the contract was finalized, and LCM began work under the contract. One of the maintenance coordinators for this job began working on August 19, | ¿2000, earning no less than $4,700 per month at a rate of $18 per hour. Cannon testified that Carignan would have been given the other position of maintenance coordinator for this job had he been employed with LCM when the contract was finalized. The job that would have been given to Carignan was not filled until September 2000. Cannon explained that although LCM’s contract lasted for only one year, another comparable maintenance coordinator position became available soon afterwards.

Carignan held several jobs after he quit his job at LCM. He worked for the City of Picayune for approximately two months, beginning in October 2000, as a pipe fitter at a rate of $6.65 per hour. He next worked as a mechanic with Coles Rental World (Coles) for approximately six months, earning $8.50 per hour doing primarily small engine repair work. Upon leaving Coles on June 23, 2001, he went to work for Thompson Packers (Thompson) as a night manager for an annual salary of $30,000 and worked there for three months. Because the number of hours that he was required to work exceeded company representations and because of the pain experienced from working in a cold warehouse, Carignan quit his job with Thompson a few weeks before trial and began working as a general laborer for Slidell Landfill on September 4, 2001, earning $8 per hour.

After considering this evidence, the workers’ compensation judge (WCJ) awarded SEB in favor of Carignan for the period of January 11, 2000, to July 29, 2000, during which period Carignan was assigned to work in the tool room. Additionally, the WCJ ordered that Carignan was entitled to continued SEB, penalties, and attorney fees. In this appeal, LCM challenges only the WCJ’s determination relative to Carignan’s entitlement to SEB after July 29, 2000. Carignan filed an answer to LCM’s appeal seeking additional attorney fees and penalties for the work on appeal.

Applicable Law and Standard of Review

The particular statute at issue in the instant case is LSA-R.S. 23:1221(3), the SEB provision. The threshold prerequisite to recovery of SEB, as set forth in subparagraph (3)(a) of that statute, is that the employee’s injury results in his inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury. Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La.1989); Payne v. Country Pride Foods, Ltd., 525 So.2d 106, 109 (La.App. 3rd Cir.1988). The injured employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount. Daigle, 545 So.2d at 1007. The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation law is to be liberally construed in favor of coverage. Daigle, 545 So.2d at 1007. In determining if an injured employee has made a prima facie case of entitlement to SEB, the trial court may and should take into account all those factors which might bear on the employee’s ability to earn a wage. Daigle, 545 So.2d at 1007. It is not until the employee successfully bears his burden of proving his disability and resultant inability to earn at least 90 percent of his pre-injury wages that the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered or available to the employee in his or the employer’s community or reasonable geographic region. See Daigle, 545 So.2d at 1008-1009.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks, 696 So.2d at 556. Thus, if the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, 696 So.2d at 556.

Earning Ability

Because of the injury to his right thumb, Carignan was no longer capable at the time of trial of working as a mechanic’s helper for LCM; however, the record establishes that Carignan was physically capable of performing the tool room job when | ficonsidering the accommodations made by LCM. Admittedly, his assignment to the tool room was of a temporary nature. Nonetheless, there is no evidence in the record that his placement there would have ended at a given time, as Carignan could not return to his former position, and we do not know how long additional help was needed in the tool room.

For purposes of the SEB calculation, LSA-R.S. 23:1221(3)(c)(i) specifically states that if the employee is earning less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment which he was physically able to perform and which he was offered by the employer. Bertsch v. South Gateway Tire, 32,167 (La.App. 2nd Cir.8/18/99), 738 So.2d 1225, 1227. Accordingly, we conclude that the amount of SEB to which Carignan may be entitled after July 29, 2000, should be based on nothing less than the average monthly wages he was able to earn while working at least a 40 hour week in the tool room at LCM.

Although he received wages while working in the tool room based on the same hourly rate paid before the injury, Carig-nan’s earnings were significantly less because he was no longer able to work as many overtime hours, thus rendering him unable to earn wages equal to 90 percent or more of the wages he was earning at the time of the injury. This finding is not disputed by the parties. Accordingly, the WCJ’s obvious finding that Carignan met his burden of proving by a preponderance of the evidence that his thumb injury resulted in his inability to earn wages equal to 90 percent or more of the wages he was earning at the time of the injury is reasonably supported by the record and is not manifestly erroneous.

Job Offering or Availability

Based on Carignan’s satisfactory proof of his inability to earn at least 90 percent of his pre-injury wages, the burden shifted to LCM who, in order to reduce or defeat Carignan’s claim for SEB, must prove job availability by establishing by competent evidence, at a minimum, the following:

(1) the existence of a suitable job within Carignan’s physical capabilities and within his or LCM’s community or reasonable geographic region;
17(2) the amount of wages that an employee with Carignan’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that Carig-nan received notification of the job’s existence.

See Banks, 696 So.2d at 557.

Relative to the position of maintenance coordinator, Carignan conceded that he was physically able to perform the job and that the job was suited to his training, skills, and experience. The wage history for that position was $18 per hour rather than the $20 per hour that was conditionally offered to Carignan, and this history shows that the amount of wages Carignan could have expected to earn in the new position would have eliminated his entitlement to SEB. Therefore, the first and second prongs of the job availability test set forth above were met in this case.

We now examine whether the third prong was established. The third prong of the job availability test can be satisfied by the employer’s showing that an offer of employment was made in good faith with a willingness to accommodate the employee. See Bertsch, 738 So.2d at 1228.

It is undisputed that LCM conditionally offered Carignan one of the maintenance coordinator positions. This offer was admittedly made prior to the time it actually became available. Thus, Carignan urges this court to ignore the fact that LCM offered this position to Carignan in light of the fact that the job was not available at the time that it was offered.

LCM contends that the offered position was not speculative and that LCM had good reason to believe that it would be available soon. In fact, the contract was awarded to LCM within a few weeks of Carignan’s departure from LCM. Furthermore, Cannon testified that had he stayed in LCM’s employment, Carignan would have been able to begin his new position in mid-August 2000. Accordingly, LCM maintains that Carignan’s inability to earn at least 90 percent of his pre-injury wages was caused by his abandonment of his employment with LCM, not because of his injury. On the other hand, Carignan argues that the promotion was speculative in that it was contingent on LCM being awarded the contract and that it was questionable whether LCM would have Ishonored its offer after obtaining the contract. Furthermore, Carignan argues it is irrelevant whether he was employed by LCM when the job became available; it is the employer who bears the burden of proving job availability. The WCJ’s determinations relative to these competing positions are dependent on his findings of fact.

It is undisputed that Cannon was aware that Carignan wanted to quit his job with LCM and that at some point in time, Cannon suggested that Carignan take a week off from work to think about his decision to quit. Carignan said he took such time off beginning on July 21, 2000, ultimately resulting in his non-return. On the other hand, Cannon testified that this discussion occurred during the month of June, prompting LCM to consider him for the maintenance coordinator job. However, Carignan’s recount of the events is supported by LCM’s record of his attendance. According to LCM’s record, the only absences Carignan had during the month of June were on Monday, June 19 and Friday, June 30.

Carignan testified that, upon his departure, he informed Cannon that he was interested in a maintenance coordinator position. According to Carignan, he asked Cannon to call him once it became available. During that conversation, Carignan reportedly told Cannon that he would accept the position if he was not working. By mid-August 2000, the contract was finalized, and LCM began work under the contract. On August 19, 2000, one of the two positions for maintenance coordinator for this job was filled. In September 2000, when Carignan was still unemployed, Cannon contacted Carignan to inquire about his condition and work status. Admittedly, LCM still had not filled both maintenance coordinator positions by that time. Nonetheless, Cannon made no mention of the availability of this job. Carignan testified that he would have accepted the job if Cannon had offered it to him once the contract was finalized in August 2000. Cannon explained that he was reluctant to rehire Carignan because of the nature of his July 2000 departure from the company, which Cannon felt reflected negatively on his dependability.

The facts in this case establish two permissible views as to the facts surrounding Carignan’s departure. The WCJ apparently chose the view presented by Carig-nan, which 19we find to be reasonably supported by the record and not dearly wrong. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993).

Although a conditional offer was clearly made in this case, the facts as apparently found by the WCJ draw into question whether LCM made such an offer in good faith. When it seemed to him that LCM’s promise of a promotion was questionable, Carignan, apparently following the directive of Cannon, took time off to give consideration to his decision to quit. Although Carignan did not return, he reportedly expressed his continued interest in a maintenance coordinator position and asked to be contacted once the contract was finalized. When Cannon contacted Carignan afterwards, he did not inform Carignan that the job had become available. Furthermore, there was no communication of that fact to Carignan at any point in time when the job was shown to be available. These facts provide a reasonable basis for a finding that LCM’s conditional offer of a maintenance coordinator position was not made in good faith. Absent such proof, we are unable to conclude that the WCJ clearly erred in finding that LCM failed to prove by competent evidence that an actual position was available for that particular job at the time that the claimant received notification of the job’s existence. Accordingly, the award of continued SEB is reasonably supported by the record and is not manifestly erroneous.

Attorney Fees and Penalties

Carignan filed an answer to the appeal seeking additional attorney fees and penalties for the work performed by his attorney on appeal. An award for additional penalties in connection with the additional work necessitated by an appeal is not authorized by law. Therefore, Car-ignan’s request for such is denied. However, a workers’ compensation claimant is entitled to an increase in attorney fees to reflect [inadditional time incurred in defending an employer/carrier’s unsuccessful appeal. See Genusa v. Dominique, 97-0047 (La.App. 1st Cir.2/20/98), 708 So.2d 784, 792. The instant appeal necessitated additional preparation by Carignan’s attorney. Accordingly, we find that he is entitled to an additional $1,000 in attorney fees for his counsel’s time spent in preparing for this appeal.

Decree

For the foregoing reasons, the judgment is amended to increase the workers’ compensation judge’s award of attorney fees by $1,000; otherwise, it is affirmed. Costs of the appeal are assessed to Louisiana Compressor Maintenance Company.

AMENDED AND, AS AMENDED, AFFIRMED.

      . The workers' compensation judge in this case was Honorable Glynn F. Voisin, of District 9.

      . Carignan's average weekly wage as a mechanic’s helper was stipulated to be $814.92.

      . As a mechanic’s helper, he worked on average in excess of 60 hours a week.

      . LCM’s record of Carignan's attendance discloses that in addition to missing Friday, May 5, 2000, Carignan was out of work for the following week and that he actually returned to work on Monday, May 15, 2000.

      . Of course, nothing prevents LCM from seeking the reduction or termination of these benefits if it is subsequently able to establish the existence of one or more jobs within Carig-nan's physical capabilities and within his or LCM's community or reasonable geographic region, the amount of wages that an employee with Carignan’s experience and training can expect to earn in that job, and an actual position available for that particular job at the time that Carignan receives notification of the job's existence. See Banks, 696 So.2d at 558-559.


source: Caselaw Access Project

author: | ¡.PARRO, J.

license: Public Domain

text:
    Darnell JOHNSON, Individually and in Their Own Right Whitney Jones, Kelly Jones, and Darnell Jones v. EVAN HALL SUGAR COOPERATIVE, INC., City of Donaldsonville, State of Louisiana Through the Department of Transportation and Development, and Eugene Gravois Services, Inc.
    No. 2001 CA 2956.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 30, 2002.

      Sidney A. Marchand, III, Donaldson-ville, for Defendant-Appellant Eugene Gravois Services, Inc.
    Patricia J. Delpit, Egan, Johnson and Stiltner, Baton Rouge, Kristi S. Burnt-horne, Lynn L. White, Taylor, Wellons, Politz and Duhe, New Orleans, for Defendant-Appellee Louisiana Workers’ Compensation Corporation.
    Before: PARRO, JAMES, and PATTERSON, JJ.

      . Judge A. Clayton James, retired from the Twenty-Second Judicial District Court, and Michael A. Patterson are serving as judges pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡.PARRO, J.

Eugene Gravois Services, Inc. (Gravois) appeals a judgment that granted a motion for summary judgment filed by its insurer, Louisiana Workers’ Compensation Corporation (LWCC), and dismissed Gravois’ claims against LWCC for liability insurance coverage and defense of the lawsuit. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a personal injury suit filed by Darnell Johnson against several defendants, claiming damages for back injuries he incurred in a one-vehicle accident while in the course and scope of his employment with Gravois. Johnson was driving a tractor-trailer rig and hauling a full load of sugar cane when the rig overturned, causing his injuries. His claim against Gravois is that it destroyed the allegedly defective trailer that Johnson claims was a cause of the accident, thus depriving him of his ability to pursue his claims against the owner and the manufacturer of the trailer.

Gravois filed a third-party claim against its liability insurer, LWCC, claiming LWCC was obligated to provide coverage for the claim and to provide a defense to the lawsuit under an employers liability insurance policy it had issued to Gravois. LWCC denied that its policy provided coverage for Johnson’s “spoliation of evidence” claim against Gravois, because the policy stated that it only covered “bodily injury caused by accident” and would only pay “damages because of bodily injury.” LWCC filed a motion for summary judgment on this basis, which the district court granted, dismissing Gravois’ claims against LWCC with prejudice. The judgment was designated by the court as a final judgment, and Gravois appealed. The res nova issues presented in this appeal are: (1) whether a spoliation of evidence claim is covered under a liability insurance policy covering only bodily injury caused by accident; and (2) whether the insurer owes its insured a defense to such a claim.

^STANDARD OF REVIEW

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. West v. Clarendon Nat’l Ins. Co., 99-1687 (La.App. 1st Cir.7/31/00), 767 So.2d 877, 879. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Lee v. Grimmer, 99-2196 (La.App. 1st Cir.12/22/00), 775 So.2d 1223, 1225. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Perry v. City of Bogalusa, 00-2281 (La.App. 1st Cir.12/18/01), 804 So.2d 895, 899. Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute which can be properly resolved within the framework of a motion for summary judgment. Doiron v. Louisiana Farm Bureau Mut. Ins. Co., 98-2818 (La. App. 1st Cir.2/18/00), 753 So.2d 357, 362 n. 2.

DISCUSSION

The allegations against Gravois in the petition are that on or about October 18, 1999, while driving a loaded rig for Gra-vois, Johnson was injured when the rig overturned. Johnson claimed a causative factor in the accident was that the Aztec trailer he was pulling was defective, in that it leaned to the right when fully loaded. He alleged in the petition that Gravois intentionally destroyed the trailer, with the sole intent of destroying evidence that would prove his injuries were partially caused by its defective condition. Johnson’s petition further stated that Gravois knew the destruction of the trailer would reduce, if not eliminate, his recovery of damages from the owner of the trailer and its manufacturer.

LWCC supported its motion for summary judgment with a copy of the original petition and Gravois’ answer and third-party demand, as well as a certified copy of the Lpolicy it issued to Gravois. The employers liability insurance section of the policy states, in pertinent part:

A. How This Insurance Applies
This employers liability insurance applies to bodily injury by accident or bodily injury by disease. Bodily injury includes resulting death.
B. We Will Pay
We will pay all sums you legally must pay as damages because of bodily injury to your employees, provided the bodily injury is covered by this Employers Liability Insurance.
D. We Will Defend
We have the right and duty to defend, at our expense, any claim, proceeding or suit against you for damages payable by this insurance. We have the right to investigate and settle these claims, proceedings and suits.
We have no duty to defend a claim, proceeding or suit that is not covered by this insurance.

The policy does not define “bodily injury.” LWCC argued that the policy language was clear and that Johnson’s claim in the petition was not one for “bodily injury by accident,” but was a totally separate claim for economic injury caused, not by the accident, but by Gravois’ alleged intentional interference with Johnson’s underlying tort claim against third parties. Therefore, the LWCC liability policy provided no coverage and LWCC had no duty to defend these claims against Gravois.

An insurance policy is an agreement between the parties and should be interpreted according to the general rules of contract interpretation as set forth in the Louisiana Civil Code. Ledbetter v. Concord Gen. Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, 1169, decree amended, 95-0809 (La.4/18/96), 671 So.2d 915. When interpreting insurance contracts, the court’s responsibility is to determine the parties’ common intent. Louisiana Ins. Guar. v. Interstate Fire, 93-0911 (La.1/14/94), 630 So.2d 759, 763. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. LSA-C.C. art.2045; Ledbetter, 665 So.2d at 1169.

However, when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art.2046. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the |Bwords have acquired a technical meaning. LSA-C.C. art.2047; Ledbetter, 665 So.2d at 1169. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. Ledbetter, 665 So.2d at 1169. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or to achieve an absurd conclusion. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions on the policy obligations they contractually assume. Campbell v. Markel American Ins. Co., 00-1448 (La.App. 1st Cir.9/21/01), 822 So.2d 617, 623, writ denied, 01-2813 (La.1/4/02), 805 So.2d 204.

Generally, the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. Yount v. Maisano, 627 So.2d 148, 153 (La.1993). The insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiffs petition, with the insurer being obligated to furnish a defense unless it is clear from the petition that the policy unambiguously excludes coverage. See Yount, 627 So.2d at 153. Thus, assuming all the allegations of the petition are true, if there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Prestage v. Clark, 97-0524 (La.App. 1st Cir.12/28/98), 723 So.2d 1086, 1092, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800.

This case is appropriate for a motion for summary judgment, in that no one claims that there are any factual matters in dispute; only legal issues concerning insurance policy interpretation are involved. In the employers liability insurance section of its policy, LWCC is obligated to provide coverage to Gravois for claims involving “bodily injury by accident” and to pay “damages because of bodily injury” to its employees. Although the policy does not define “bodily injury,” these are common, ordinary words with no technical meaning. In the ordinary sense of the words, bodily injury means injury to the body. Kite v. Gus Kaplan Inc., 98-0751 (La.11/17/99), 747 So.2d 503, 514. According to a leading treatise on the subject, “bodily injury” means an “actual physical injury.” William Shelby McKenzie & H. Alston Johnson, III, \ ¿insurance Law and Practice, § 163, p. 336, in 15 Louisiana Civil Law Treatise (2d ed.1996).

In this case, Johnson’s “bodily injury” claims involve the damages he incurred as a direct result of the actual physical injury to his person. The claim against Gravois is not derived from the injuries to his body; it is based on a completely separate incident that occurred sometime after the accident that caused his bodily injuries. The petition alleges that Gravois destroyed the trailer, thus depriving Johnson of his ability to prove his tort claims against other parties based on the allegedly defective condition of the trailer. Several recent cases have examined “spoliation of evidence” claims in the context of determining whether such a claim can be brought by an employee against his employer. In Pham v. Contico Int’l, Inc., 99-945 (La.App. 5th Cir.3/22/00), 759 So.2d 880, 882, the Fifth Circuit noted that, except for intentional acts, an employer is granted immunity from tort suits by an employee on account of an injury for which he is entitled to compensation under the workers’ compensation statutes. The court distinguished the spoliation of evidence claim from the bodily injury claim, stating:

Pham’s suit against the defendants is not on account of his injury, but is based upon the employer’s post-accident conduct in failing to preserve evidence.

The court found, however, that Pham had not alleged an intentional act, nor had he alleged that the particular item of evidence had actually been destroyed or concealed, and thus had failed to state a cause of action against his employer(s) for spoliation of evidence. The Third Circuit concluded, in Bethea v. Modern Biomedical Svces, Inc., 97-332 (La.App. 3rd Cir.11/19/97), 704 So.2d 1227, 1233, that the plaintiffs cause of action against her employer for its failure to preserve evidence was not precluded by the general tort immunity given an employer. The issue was also examined by the Second Circuit in Carter v. Exide Corp., 27,358 (La.App. 2nd Cir.9/29/95), 661 So.2d 698. In that case, the plaintiff conceded that he could not recover tort damages from his employer for the work-related bodily injuries he had sustained when a battery exploded. However, he claimed his employer’s tort immunity for such claims did not |7extend to its alleged post-accident failure to preserve the battery for inspection and use in third-party litigation, which involved “conduct occurring after and apart from, though admittedly with some factual ties to, the work accident.” Carter, 661 So.2d at 704. The court agreed, remanding the case to the trial court to allow the plaintiff to amend his petition to allege with more particularity his claim against his employer for failing to preserve the battery remains, after promising to do so.

This jurisprudence, while it does not directly address the issue before this court, recognizes that an employee’s spoliation of evidence claim against his or her employer falls outside the general tort immunity granted by the workers’ compensation statutes, because the claim is not “on account of an injury” for which the employee is entitled to compensation under those laws. As such, these cases are instructive in the matter we are reviewing. Here, there is no dispute that Johnson was paid workers’ compensation benefits for the physical injuries to his person that occurred while he was in the course and scope of his employment. The claim he now asserts against Gravois is for economic injury in the form of a reduced or eliminated recovery from third parties for their fault in causing his accident. We conclude that this claim is different from Johnson’s claims for damages because of bodily injury. As such, the LWCC employers liability insurance policy, which is limited to paying “damages because of bodily injury,” does not cover this spolia1 tion of evidence claim. Therefore, we find no legal error in the trial court’s granting of LWCC’s motion for summary judgment on the coverage issue.

Furthermore, the precise nature of Johnson’s claim against Gravois can be determined from reading the allegations of his petition. Assuming all those allegations are true, it is clear from the petition that there is no coverage under the policy for Johnson’s spoliation of evidence claim. Accordingly, the trial court did not err in dismissing Gravois’ claim alleging LWCC owed it a defense in this lawsuit.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Gravois.

AFFIRMED.

      . LWCC also provided workers' compensation insurance to Gravois, and it paid Johnson’s medical expenses and workers’ compensation benefits in accord with its policy. This appeal does not involve that coverage.

      .The court stated that among its reasons for certifying the judgment as final was the fact that Gravois, a closely held family corporation, had a pressing need to have the issue of liability insurance coverage and defense determined, because the costs of defense are significant, the exposure to a substantial judgment exists, and the solvency and continued operation of the small corporation may be jeopardized. See LSA-C.C.P. art.1915.

      . As an employee of Gravois, Johnson could not bring these bodily injury claims in a tort action against his employer; his exclusive remedy against Gravois for such claims is provided by the workers' compensation statutes. See LSA-R.S. 23:1032.


author:
l,SOL GOTHARD, Judge. JjCHEHARDY, J„
      hDUFRESNE, J.,

text:
    Rosella HEBERT, et al. v. CHATEAU LIVING CENTER, L.L.C., et al.
    No. 02-CA-462.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Brett M. Dupuy, Metairie, LA, for Plaintiffs/Appellants.
    James E. Wright, Amy M. Winters, Conrad Meyer, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR„ SOL GOTHARD, THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   l,SOL GOTHARD, Judge.

Plaintiffs appeal a decision of the trial court that maintained an exception of prematurity for failure to first present their claim to a medical review panel pursuant to the Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq. For reasons that follow, we reverse.

The only issue for our review in this appeal is whether a plaintiff, who has stated a cause of action under the Nursing Home Residents’ Bill of Rights Act embodied in LSA-R.S. 40:2010.8, et seq. (NHRBR), must first present the claim to a medical review panel. We find that, in enacting the NHRBR, the legislature clearly intended to establish an independent cause of action for offenses listed in the NHRBR, which is separate from, and in addition to, any medical malpractice claim a patient may have. We further find that the claims made in the petition filed in this action allege violations of the NHRBR.

The instant matter arises out of the death of Edward Hebert, who was a resident of Chateau Living Center (Chateau) from December 27, 2000 through April 4, 2001. The petition stated a claim pursuant to NHRBR and alleges that during his residency in Chateau, Mr. Hebert’s health deteriorated and he was transferred to a hospital on April 4, 2001 with pneumonia, acute renal failure, sepsis, malnutrition, and other medical problems, directly related to the inadequate care provided by Chateau and its personnel. Mr. Hebert died on April 9, 2001.

LSome of the allegations of negligence made in the petition include: 1) allowing decedent’s health to deteriorate; 2) failure to properly nourish and hydrate decedent; 3) failure to properly monitor and/or respond to decedent’s changing vital signs; 4) failure to properly superase and monitor decedent; 5) hiring and retention of incompetent staff; 6) failure to properly train staff in the care of elderly patients; and, 7) all other acts of negligence which may be discovered and proven at trial.

In maintaining the exception of prematurity, the trial court found that the acts or omissions that constitute plaintiffs’ claim are the result of “healthcare of professional services rendered” and fall under the Medical Malpractice Act. The court also stated:

This Court finds that nursing homes were included within the definition of hospitals in the Medical Malpractice Act prior to the Act 108. Finally, it is the opinion of this Court that hiring and training of staff was included within the definition of malpractice as defined by the Act prior to August 15, 2001.

This case presents a res nova issue for our review. Accordingly, we look to the law, and the intent of the legislature for guidance. LSA-R.S. 40:2010.8 is entitled “Residents’ Bill of Rights” and it applies to all nursing homes. Part (7) of that law gives residents the right to receive adequate and appropriate health care and protective and support services. Also, the important part of the law for our purposes herein is R.S. 40:2010.9 which provides as follows:

A. Any resident whose rights, as specified in R.S. 40:2010.8, are deprived or infringed upon shall have a cause of action against any nursing home or health care facility responsible for the violation. The action may be brought by the resident or his curator, including a curator ad hoc. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in |4such action shall be entitled to recover reasonable attorney’s fees, costs of the action, and damages, unless the court finds that the losing plaintiff has acted in bad faith with malicious purpose, and that there was an absence of a justiciable issue of either law or fact, in which case the court shall award the prevailing party his reasonable attorney fees.
B. The remedies provided in this action are in addition to and cumulative with other legal and administrative remedies available to a resident and to the Department of Health and Hospitals or other governmental agencies.

In enacting the act the legislative intent was as follows:

The legislature finds that persons residing within nursing homes are isolated from the community and often lack the means to assert their rights as individual citizens. The legislature further recognizes the need for these persons to live within the least restrictive environment possible in order to retain their individuality and some personal freedom. It is therefore the intent of the legislature to preserve the dignity and personal integrity of residents of nursing homes through the recognition and declaration of rights safeguarding against encroachments upon nursing home residents’ right to self-determination. It is further the intent that the provisions of R.S. 40:2010.6 through R.S. 40:2010.9 complement and not duplicate or substitute for other survey and inspection programs regarding nursing homes.

We find the legislature clearly intended to establish an independent cause of action for offenses listed in the NHRBR, which is separate from, and in addition to, any medical malpractice claims the patient may have. Therefore, we hold that an action arising under the NHRBR Law may be brought in district court without a requirement of submission to a medical review panel and we reverse the trial court on that issue.

Some of the allegations made against defendant in the instant case include failure to properly nourish and hydrate, and a failure to hire, train, supervise and retain competent staff. When, as in the instant case, it is alleged that a resident of a nursing home is sent to a hospital only after he is starved, dehydrated and allowed to deteriorate to the extent that he cannot be helped, a cause of action has been asserted under several sections of the NHRBR, at the very least as a violation of his right to be treated with dignity, but specifically as a violation of:

|b(7) The right to receive adequate and appropriate health care and protective and support services, including services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules promulgated by the Department of Health and Hospitals.
(22) The right to have any significant change in his health status immediately reported to him and his legal representative or interested family member, if known and available, as soon as such a change is known to the home’s staff.

We believe the circumstances of this case as alleged in plaintiffs’ petition represent exactly what the legislature had in mind when it enacted the NHRBR. We find the intent of the legislature was to create a cause of action for maltreatment of the ill that was allegedly suffered by Mr. Hebert. Because we find a cause of action stated under the NHRBR is a distinct and separate action from any medical malpractice claim, we reverse the trial court’s judgment in which it granted the exception for prematurity for failure to present the claim to a medical review panel, and remand the matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DUFRESNE and CHEHARDY, JJ., dissents.

JjCHEHARDY, J„

dissents:

I would affirm the trial court’s finding of prematurity. Although it has been held that an action arising under the Nursing Home Bill of Rights may be brought in a district court without a requirement of submission to a medical review panel, I believe the alleged actions made the basis of this suit are appropriately classified as medical malpractice and, thus, the complaint requires submission to a medical review panel prior to suit.

“Malpractice” is defined by La.R.S. 40:1299.41(A)(8) as “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.” Cole man v. Deno, 01-1517, p. 16 (La.1/25/02), 813 So.2d 303, 315.

Whether conduct by a qualified health care provider constitutes “malpractice” as defined under the MMA is determined by the following factors: (1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient «relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and |z(6) whether the tort alleged was intentional. Coleman, 01-1517, page 17, 813 So.2d at 315-316.

Reviewing plaintiffs’ allegations in light of these factors establishes that the trial court did not err in finding that the allegations fit within the statutory definition of medical malpractice rather than the NHRBR.

First, the petition concerns the provision of medical treatment and alleges negligent care and want of professional skill by Chateau Living Center and its employees and that, as a result of inadequate care by defendants, decedent’s health deteriorated. These allegations relate to Factor (1), “whether the particular wrong is “treatment related” or caused by a dereliction of professional skill.”

Second, expert medical testimony is required to determine whether Chateau Living Center breached the applicable standard of care in monitoring requirements for nutrition, hydration and monitoring of the decedent. This satisfies Factor (2), “whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached.”

Third, plaintiffs allege that defendants were responsible for monitoring and assessing decedent’s condition and failed to provide such treatment. These allegations satisfy Factor (3), “whether the pertinent act or omission involved assessment of the patient’s condition.”

Fourth, plaintiffs allege that Chateau Living Center failed to provide services and activities it is licensed to perform. Chateau Living Center is a licensed nursing home facility and is required to provide services to its residents, pursuant to the Louisiana Administrative Code, including but not limited to service to persons requiring systematic nursing supervision because of illness or physical handicap. La.Admin.C. 48:I.7521(A)(2). Plaintiffs’ allegations regarding failure to properly nourish and hydrate the decedent, failure to properly monitor his vital signs, and failure to hire, train, and retain competent staff satisfy Factor (4), “whether an 1..¡incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform.”

Fifth, plaintiffs assert that the decedent’s medical condition 'deteriorated as a result of the alleged inadequate care and treatment, thus alleging a cause-and-effect relationship between the alleged failure of care and the injuries. These allegations satisfy Factor (5), “whether the injury would have occurred if the patient had not sought treatment.”

Sixth, plaintiffs do not allege that any of defendants’ actions were intentional, thus satisfying Factor (6), “whether the tort alleged was intentional.”

Accordingly, I would affirm the judgment granting the exception of prematurity-

hDUFRESNE, J.,

dissents:

I agree with Judge Chehardy’s dissent and would affirm the trial court’s judgment granting the exception of prematurity.

      . We note that Gorham v. HCA Health Services of La., 34,721 (La.App. 2 Cir. 5/17/01), 786 So.2d 348, 350 makes the statement that "In any event, an action arising under the Nursing Home Bill of Rights may be brought in a district court without a requirement of submission to a medical review panel." However, a careful reading of the case shows that that statement may be an argument put forth by one of the parties, or is at best, dicta from the court. The Gorham case only resolved the issue of “whether the amendment to the medical malpractice claim substituting the sister of the decedent for the grandchildren of the decedent related back to the date of the grandchildren’s filing of the original claim."

      . Gorham v. HCA Health Services of Louisiana, 34,721 (La.App. 2 Cir. 5/17/01), 786 So.2d 348.