Opinion
NO. 2021 CA 1156
08-02-2022
Rusten MAY, Bryan Boudreaux, John D. Lewis, III, Eric Jackson and Albert J. Walker v. Lane CARSON, in His Capacity as Secretary of Louisiana Department of Veterans Affairs; and The State of Louisiana Through the Department of Veterans Affairs Through Its State Director of Veterans Affairs, Bill Dixon
Hannah B. Salter, New Orleans, Louisiana, Attorneys for Plaintiffs-Appellees, Bryan Boudreaux and John D. Lewis, III John B. Dunlap, III, Jennifer A. Fiore, Alexis M. Breedlove, Erin G. Fonacier, Baton Rouge, Louisiana And Jeffrey Martin Landry, Attorney General, Matthew P. Roth, Assistant Attorney General, Baton Rouge, Louisiana, Attorneys for Defendants-Appellants, David Lacerte, in his Capacity as Former Secretary of the Louisiana Department of Veterans Affairs, and the State of Louisiana, through the Department of Veterans Affairs, through its State Director, Bill Dixon
Hannah B. Salter, New Orleans, Louisiana, Attorneys for Plaintiffs-Appellees, Bryan Boudreaux and John D. Lewis, III
John B. Dunlap, III, Jennifer A. Fiore, Alexis M. Breedlove, Erin G. Fonacier, Baton Rouge, Louisiana And Jeffrey Martin Landry, Attorney General, Matthew P. Roth, Assistant Attorney General, Baton Rouge, Louisiana, Attorneys for Defendants-Appellants, David Lacerte, in his Capacity as Former Secretary of the Louisiana Department of Veterans Affairs, and the State of Louisiana, through the Department of Veterans Affairs, through its State Director, Bill Dixon
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
MCDONALD, J.
In this case, the State appeals the district court's summary judgment determination that two veterans of the Louisiana National Guard have qualifying disabilities pursuant to La. R.S. 29:26.1 and are therefore entitled to the State's $100,000 lump sum disability benefit. After review, we find insufficient evidence to support summary judgment, and we reverse and remand.
FACTS AND PROCEDURAL HISTORY
Bryan Boudreaux and John D. Lewis, III (the plaintiffs) were members of the Louisiana National Guard and were ordered to active duty in the U.S. Army by the President of the United States for service in Afghanistan during Operation Iraqi Freedom. They were injured during their service. After their discharge from active duty, the plaintiffs filed disability claims with the U.S. Department of Veteran Affairs (USVA), pursuant to 38 U.S.C.A. § 1101, et seq., and thereafter with the State of Louisiana, Department of Veterans Affairs (the State), pursuant to La. R.S. 29:26.1. Louisiana Revised Statutes 29:26.1 provides, in part, for a lump sum disability benefit to members of the Louisiana National Guard activated by the Governor of Louisiana or the President of the United States who have a qualifying disability. Their claims for disability benefits pursuant to La. R.S. 29:26.1 were denied. The plaintiffs then filed suit in the district court on August 23, 2013, maintaining that they have qualifying disabilities that entitled them to the $100,000 lump sum payment provided by La. R.S. 29:26.1. They asked that the State be ordered to pay them the $100,000 lump sum disability benefit, along with damages, attorney fees, and costs.
The other plaintiffs in the suit, Rusten May, Eric Jackson, and Albert J. Walker, are not parties to this appeal.
The State filed an answer, asserting that the initial rating decisions by the USVA for Mr. Boudreaux and Mr. Lewis indicated that examinations would be scheduled at a future date to evaluate the severity of their disabilities as their conditions could still change. The State maintained that the initial rating decisions of the USVA for both Mr. Boudreaux and Mr. Lewis was not 100 percent, therefore neither was entitled to benefits under La. R.S. 29:26.1. The State asserted that it did not have the discretion under La. R.S. 29:26.1 to make an independent determination of disability in connection with Mr. Boudreaux or Mr. Lewis's application for a veteran disability benefit; rather, it was required to certify the initial rating decisions rendered by the USVA. The State maintained that the plaintiffs failed to state a cause of action, and that the action should be dismissed. The State filed peremptory exceptions raising the objections of no cause of action and nonjoinder of a party, and the dilatory exception raising the objection of prematurity.
The plaintiffs filed a motion for summary judgment on August 13, 2020, seeking a ruling that they each have a qualifying disability as defined by La. R.S. 29:26.1, and were therefore each entitled to the State's lump sum disability benefit. After a hearing, the district court took the matter under advisement. Thereafter, the district court granted the plaintiffs’ summary judgment, finding that the plaintiffs each have a qualifying disability as defined by La. R.S. 29:26.1 (as enacted at the time suit was filed in 2013) and were entitled to receive the State's $100,000 lump sum disability benefit. The judgment was designated as final and appealable. The judgment was signed on May 19, 2021. The State appealed that judgment.
THE ASSIGNMENTS OF ERROR
In assignments of error numbers one and two, the State maintains that the district court erred in finding that Mr. Boudreaux and Mr. Lewis have qualifying disabilities as defined by La. R.S. 29:26.1 and were thus entitled to receive the $100,000 lump sum disability benefit afforded to Louisiana National Guard veterans pursuant to La. R.S. 29:26.1. In assignment of error number three, the State maintains that the district court erred in overruling its objections to the plaintiffs’ Exhibits C, G, and H.
DISCUSSION
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882-883.
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is then on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).
The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The court may permit documents to be filed in any electronically stored format authorized by court rules or approved by the clerk of the court. La. C.C.P. art. 966(A)(4). The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. La. C.C.P. art. 966(D)(2).
THE REVISED STATUTES
At the time the suit was filed, Louisiana Revised Statutes 29:26.1 provided:
The suit was filed on August 23, 2013. Louisiana Revised Statutes 29:26.1 was enacted by Acts 2011, No. 406, § 1, effective July 5, 2011. It was amended by La. Acts 2015, No. 77, § 1, effective August 1, 2015, La. Acts 2017, No. 37, § 1, effective August 1, 2017, and La. Acts 2020, No. 167, § 1, effective August 1, 2020.
A. Purpose. The purpose of this Section is:
(1) To establish an effective and efficient mechanism for providing ... disability benefits for Louisiana National Guardsmen called to active duty service by the governor or the president of the United States.
(2) To govern the submission, evaluation, and determination of claims submitted pursuant to this Section.
B. Definitions. As used in this Section, the following terms shall have the following meanings unless a different meaning is clearly required by context:
.....
(4) "Disabled or disability" means a physical condition affecting the ability of a guardsman to secure and follow a substantial and gainful occupation by reason of a service-connected injury or illness.
.....
(8) "Period of activation" means any of the following:
(a) That period, subsequent to September 11, 2001, for which the governor of the state of Louisiana orders a guardsman into state active service pursuant to R.S. 29:7.
(b) That period, subsequent to September 11, 2001, for which the president of the United States orders a guardsman into active military duty, pursuant to 32 U.S.C. 502(f)(1).
(c) That period, subsequent to September 11, 2001, for which the president of the United States orders a guardsman to federal active duty pursuant to 10 U.S.C. 12301, 12302, or 12303.
(9) "Qualifying claim" means an application for benefits by a guardsman ... for a qualifying ... disability incurred during a period of activation in the line of duty, and meeting the documentation requirements of this Section.
(10) "Qualifying disability" means a one hundred percent permanent total disability rating, or a permanent and total unemployability disability rating as determined by the United States Department of Veterans Affairs and certified by the Louisiana secretary of veterans
affairs in a final adjudication of the initial rating decision or as determined or certified by the proper state entity that adjudicates such claims for guardsmen in accordance with the workers’ compensation law of this state. A qualifying disability shall be certified by the Louisiana secretary of veterans affairs or his designee.
.....
D.(1) Benefits available. During periods of activation, subsequent to September 11, 2001, of a guardsman ordered by the governor or by the president of the United States, benefits in a lump-sum amount of ... one hundred thousand dollars for a qualifying disability shall be paid by the state to a guardsman ... when such ... disability occurs during a period of activation in the line of duty as required by this Section. Such benefits shall be paid only when funds are available, having been appropriated for the purpose.
.....
E. Determination of eligibility for payment of benefits. ...
(2) A qualifying disability shall be determined by the United States Department of Veterans Affairs or by the proper state entity that adjudicates such claims for guardsmen in accordance with the workers’ compensation law of this state and certified by the secretary of the Louisiana Department of Veterans Affairs or his designee.
.....
(4) Payment to an eligible recipient of a qualified claim for a disability benefit shall be made by the Louisiana Department of Veterans Affairs after a determination by the United States Department of Veterans Affairs and certification of eligibility by the secretary of the Louisiana Department of Veterans Affairs, and request for payment as required by this Section.
DISCUSSION
The State maintains that the plaintiffs’ evidence was insufficient to support their motion for summary judgment. The State asserts that the district court abused its discretion when it overruled the State's timely filed objections to the plaintiffs’ Exhibits C, G, and H. The plaintiffs’ Exhibit C is the deposition testimony of Mr. Boudreaux, which the State maintains does not contain a properly executed court reporter certificate, and is not signed by Mr. Boudreaux or attached to an affidavit executed by Mr. Boudreaux. The State argues that the plaintiffs’ Exhibit G, Mr. Boudreaux's USVA medical charts and records, were not properly certified, as required by Article 966, nor were they attached to an affidavit. The State avers that the plaintiffs’ Exhibit H, Mr. Lewis's USVA medical charts and records, were not properly certified, as required by Article 966, nor were they attached to an affidavit. The State contends that without Exhibits C, G, and H, the plaintiffs could not meet their burden of proof or establish that no genuine issue of material fact exists.
The issue before us is whether Mr. Boudreaux and Mr. Lewis have qualifying disabilities pursuant to La. R.S. 29:26.1 and are therefore entitled to the State's $100,000 lump sum disability benefit. In order to make that determination it is necessary to review the USVA's ratings of their disability or unemployability and determine whether they have qualifying disabilities. Letters from the USVA that provide the ratings for the percentage of Mr. Boudreaux and Lewis's disability or unemployability are contained in the plaintiffs’ Exhibits G and H. These letters are not accompanied by an affidavit. Mr. Boudreaux's deposition, contained in Exhibit C, is not signed by Mr. Boudreaux, nor is the certification signed by the court reporter.
Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to use unsworn and unverified documents as summary judgment evidence. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Unifund CCR Partners v. Perkins, 2012-1851 (La. App. 1 Cir. 9/25/13), 134 So.3d 626, 632.
In meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform them into competent summary judgment evidence. Unifund CCR Partners, 134 So.3d at 632. Thus, we find the district court abused its discretion in overruling the State's objection to the unsworn, unverified documents, i.e., Exhibits C, G and H.
After de novo review, we find that without the documents that were unsworn and unverified, there was insufficient evidence for the district court to grant the plaintiffs’ motion for summary judgment concluding that they have qualifying disabilities pursuant to La. R.S. 29:26.1 and are therefore entitled to the State's $100,000 lump sum disability benefit. Thus, we reverse the judgment and remand the matter for further proceedings.
CONCLUSION
For the foregoing reasons, the May 19, 2021 judgment is reversed and the matter is remanded. Costs of this appeal are assessed against Bryan Boudreaux and John D. Lewis, III.