Opinion
98-3362
April 22, 2002
The Court has been asked to review whether the intervention of the Louisiana Workers' Compensation Corporation is proper in this action. The parties waived oral argument and the matter was submitted for the Court's consideration on the briefs alone.
ORDER AND REASONS
I. BACKGROUND:
The plaintiff, Ken Avant, was employed as a pump operator for Superior Energy Services, Inc. ("Superior Energy"), aboard a fixed platform owned by Forest Oil Company, Inc. ("Forest"). Avant was injured when a piece of equipment broke free from a crane lifting it and fell trapping plaintiffs arm. The crane was owned and operated by defendant, Mega Crane Rentals, Inc. ("Mega"). Wadleigh Industries, Inc. ("Wadleigh") was a contractor of Forest. The plaintiff contends that Forest, Mega, and/or Wadleigh were negligent (1) in the operation of the crane; (2) in operating the crane in its condition; and, (3) in failing to maintain the Mega crane. At all pertinent times, the Louisiana Workers' Compensation Corporation ("LWCC") had issued, and there was in full force and effect, a policy of workers' compensation insurance to and in favor of plaintiffs employer, Superior. On August 16, 2000, the LWCC was granted leave to intervene in this matter without opposition having been filed by any party. Subsequently, however, the propriety of said intervention has been called into question.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
While the LWCC does not contest that there are written contracts between Forest and Wadleigh and Forest and Superior containing a waiver of subrogation, LWCC contends that there is no written waiver of subrogation with respect to Mega to affect LWCC's rights as to Mega. As such, LWCC has the right to intervene until such time as a valid waiver of subrogation has been proven for all parties. Alternatively, should it be found that LWCC does not have the right to intervene, a waiver of subrogation neither affects LWCC's right to a set-off, nor does it waive the requirement that the injured employee obtain written approval of any settlement from the employer and LWCC before the settlement is executed.
Mega has opposed the intervention asserting that the LWCC has no right to intervene as both the Forest and Wadleigh contract and Forest and Superior contract contain a written waiver of subrogation, which includes all of Forest's "subsidiaries, affiliated and related companies, and its and their working interests owners, co-lessees, co-owners, contractors and subcontractors, and any others for whom any of the foregoing may be acting; and the agents, directors, officers, employees, of any one or more of the above named or described parties." (Exhibit A) Mega is a subcontractor of Forest and therefore by definition is covered under the waiver of subrogation. As such, Mega is entitled to the same rights and benefits as Forest, Wadleigh and Superior.
The plaintiff, Ken Avant, likewise opposes the intervention of the LWCC. Mega, the only party which the LWCC contests the existence of a written waiver of subrogation, is subject to the Master Service Contract entered between Forest and Wadleigh, and its corresponding waiver of subrogation. As such, the LWCC has no right to intervene. Additionally, it is asserted that the Jackson v. Land and Offshore Services. Inc., 855 F.2d 244 (5th Cir. 1988) case, relied upon by the LWCC, should be limited to its facts, and not be used by the LWCC to hold a settlement hostage. Specifically, the Jackson case should not stand for the proposition that a workers' compensation carrier, having waived its right of subrogation can nonetheless prevent the settlement from occurring by refusing to offer its written approval of a settlement and then claim a set off against future compensation thereby effectively preventing any settlement from occurring. As such, the LWCC should be prevented from any credit or set off against any future amounts it may be required to pay.
In response, LWCC contends first that while Mega contends that it is a subcontractor of Forest, there has been no evidence or contract to substantiate such an assertion and therefore, LWCC should be allowed to intervene. Secondly, LWCC argues that it has not lost its right to a set off against future compensation and that the case relied upon by the plaintiff, Allen v. Texaco, Inc., 510 F.2d 977 (5th Cir. 1975), does not address that issue and does not apply to the case at hand.
III. LEGAL ANALYSIS:
Having reviewed the arguments of counsel, the evidence submitted, the law and applicable jurisprudence, this Court finds that it lacks sufficient information with respect to whether Mega was a subcontractor of Forest Oil Corporation. While both Mega and plaintiff have asserted that Mega was a subcontractor and therefore included in the waiver of subrogation provisions of Forest's contracts, this Court has no evidence before it to support such an assertion. This Court believes that it would be a waste ofjudicial resources to issue a ruling allowing the intervention to stand based upon a lack of proof herein, to only later have to dismiss the intervention if it is in fact found that Mega was subject to the waiver of subrogation clause contained in the Forest contracts. As such, this Court believes that the interests of judicial economy are best served by asking for supplemental briefing and documentation. Without making this initial determination, the subsequent issue with regard to the LWCC's right to set off against future payments shall likewise be deferred.
Accordingly,
IT [S ORDERED that the issue before the Court is hereby CONTINUED and reset upon the Court's docket for submission on May 22, 2002.
IT IS FURTHER ORDERED that Mega and/or plaintiff are to file supplemental memoranda on or before May 7, 2002, while the LWCC shall file any response on or before May 14, 2002.