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Patterson v. Martin Forest Products12/15/2000
ant case, the record shows that Allan received medical and disability benefits from Martin Forest Products' workers' compensation group. It is undisputed that these benefits were issued not pursuant to a request from the injured minor or his parents, but in accordance with a unilateral decision of the insurer. Allan's receipt of these benefits does not qualify as an election of remedies and while his acceptance of workers' compensation benefits will not bar his suit in tort, his employer (or its workers' compensation insurer) may be entitled to a credit or offset against any recovery Allan may realize in tort. See Gagnard v. Baldridge, 612 So.2d 732 (La. 1993).
Inasmuch as we have concluded that Allan's tort claim against his employer, Martin Forest Products, is not barred by the exclusivity provision of the workers' compensation act, we find, as did the trial court, that the provision in PLM's general liability policy which excludes coverage for workers' compensation claims (the basis for PLM's motion for summary judgment) is not implicated. We therefore uphold the trial court's denial of summary judgment to the insurer.
Conclusion
For the above stated reasons, we find that the trial court did not err in denying the motion for summary judgment filed by defendant- applicant, Pennsylvania Lumbermens Mutual Insurance Company. The trial court's judgment is hereby AFFIRMED and the matter is REMANDED for further proceedings. Costs are assessed to defendant-applicant, Pennsylvania Lumbermens Mutual Insurance Company.
PEATROSS, J., dissenting,
I respectfully dissent. Plaintiff sustained his on the job injury on April 4, 1996. In my opinion, the provisions of La. R.S. 23:1032, as amended by Act 432 of 1995 (effective June 17, 1995), unambiguously preclude Plaintiff from any recovery in tort. There is no showing that Plaintiff's employer acted intentionally or that the Child Labor Law specifically provides Plaintiff a tort remedy against Defendants. I would reverse and grant Defendants' motions for summary judgment.
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