Limberg et al v. Starr Indemnity & Liability Company

Filing 41

ORDER AND REASONS - IT IS ORDERED that Defendant Starr Indemnity & Liability Company's 27 motion for partial summary judgment that Plaintiff Chris Limberg is not entitled to recover the amount written off by his medical providers is hereby GRANTED. Signed by Judge Susie Morgan. (bwn)

TFlUNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRIS LIMBERG ET AL.
Plaintiffs

CIVIL ACTION

VERSUS

NO. 16-15217

STARR INDEMNITY
& LIABILITY CO.,
Defendant

SECTION: “E”(5)

ORDER AND REASONS
Before the Court is Defendant Starr Indemnity & Liability Company’s (“Starr”)
motion for partial summary judgment. 1 Starr seeks a judgment that Plaintiff Chris
Limberg is not entitled to recover the amount written off by Plaintiff’s medical providers
who have already been paid by Starr under a workers’ compensation policy. 2 Plaintiff
opposes the motion. 3 For the reasons that follow, the motion is GRANTED.
BACKGROUND
These are the undisputed facts relevant to this motion. On October 15, 2015,
Plaintiff Chris Limberg was in an automobile accident with an underinsured motorist. 4
At the time of the accident, Plaintiff was operating a vehicle owned by his employer,

R. Doc. 27. This motion only involves Plaintiff Chris Limberg’s claims, and does not impact Plaintiff Diane
Limberg’s claim for loss of consortium.
2 Starr provides workers’ compensation coverage and uninsured/underinsured motorist coverage for
Plaintiff’s employer. Starr initially moved for summary judgment that (1) Plaintiff may not recover damages
for medical expenses already paid by Starr under the workers’ compensation policy and (2) Plaintiff is not
able to recover the amount written off by his medical providers. R. Doc. 27-1 at 1. In Plaintiff’s opposition,
he concedes Starr is entitled to a credit for lost wage and medical benefits it has already paid him. R. Doc.
33 at 3-4.
3 R. Doc. 33.
4 R. Doc. 27-4 at ¶ 1; R. Doc. 40-1 at ¶ 1. It is not clear whether the motorist was underinsured or uninsured.
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Gunite Express, LP (“Gunite”), and he was acting within the course and scope of his
employment. 5 Plaintiff does not allege his employer was at fault. 6
After the accident, Plaintiff initiated a workers’ compensation (“WC”) claim with
Starr, which is Gunite’s WC insurer as well as Gunite’s uninsured/underinsured motorist
(“UM”) insurer. 7 Pursuant to the WC policy issued to Gunite, Starr paid for Plaintiff’s
medical care related to the accident 8 and also his indemnity benefits. 9 Plaintiff has now
reached a lump sum settlement with Starr on his claim for indemnity benefits. 10 Limberg
has not settled his WC claim for future medical expenses, and Starr continues to pay his
medical expenses. 11
Plaintiff filed a complaint in this Court on October 4, 2016 against Starr, seeking
damages under the UM policy. 12 Chris Limberg claims damages for his past and future
medical expenses, physical pain and suffering, mental pain and anguish, physical
disability, loss of wages, loss of enjoyment of life, and loss of earning capacity. 13
Starr now moves for summary judgment regarding the amount of damages
Plaintiff Chris Limberg is entitled to recover under the UM policy. 14 Plaintiff filed an

R. Doc. 27-4 at ¶ 1; R. Doc. 40-1 at ¶ 1.
See R. Doc. 1.
7 R. Doc. 27-4 at ¶ 2, 5; R. Doc. 40-1 at ¶ 2, 5.
8 R. Doc. 27-4 at ¶ 3; R. Doc. 40-1 at ¶ 3.
9 The parties dispute the period of time during which Plaintiff received indemnity benefits. R. Doc. 27-4 at
¶ 4; R. Doc. 40-1 at ¶ 4.
10 It is undisputed that Plaintiff’s indemnity claim was settled. R. Doc. 27-4 at ¶ 4. R. Doc. 40-1 at ¶ 4.
Although the parties appear to dispute when the settlement occurred, the settlement agreement supplied
by Plaintiff is dated February 9, 2017. R. Doc. 33-1 at 3. The settlement agreement provided that Plaintiff
would receive a lump sum of $40,000 “to close in full and final settlement all issues of permanent partial
disability, permanent total disability, vocational disability and vocational rehabilitation, as related to an
injury occurring on or about 10.12.2015.”10 The agreement further provided, “Future medical services shall
remain open as provided by the Alabama Workers’ Compensation Law.”10
11 R. Doc. 27-4 at ¶ 3. R. Doc. 40-1 at ¶ 3.
12 R. Doc. 1. Plaintiff filed an amended complaint On October 21, 2016. R. Doc. 6.
13 R. Doc. 1 at 3.
14 R. Doc. 27.
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opposition on May 22, 2018, 15 and Defendant filed a reply in support of its motion for
summary judgment on May 30, 2018. 16
LEGAL STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 17 “An issue is material if its resolution could affect the outcome of the action.” 18
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.” 19 All reasonable inferences are drawn in favor of the nonmoving party. 20
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law. 21
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 22 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the

R. Doc. 33.
R. Doc. 37.
17 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
18 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
19 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
20 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
21 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
22 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
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record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 23
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim. 24 When proceeding under the first option, if the
nonmoving party cannot muster sufficient evidence to dispute the movant’s contention
that there are no disputed facts, a trial would be useless, and the moving party is entitled
to summary judgment as a matter of law. 25 When, however, the movant is proceeding
under the second option and is seeking summary judgment on the ground that the
nonmovant has no evidence to establish an essential element of the claim, the nonmoving
party may defeat a motion for summary judgment by “calling the Court’s attention to
supporting evidence already in the record that was overlooked or ignored by the moving
party.” 26 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant. 27 If the movant meets this
burden, “the burden of production shifts [back again] to the nonmoving party, who must
Celotex, 477 U.S. at 322–24.
Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential
element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
25 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
26 Celotex, 477 U.S. at 332–33.
27 Id.
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either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule
56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided
in Rule 56(f).” 28 “Summary judgment should be granted if the nonmoving party fails to
respond in one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the court that
there is no genuine issue of material fact for trial.” 29
“[U]nsubstantiated assertions are not competent summary judgment evidence.
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports the claim.
‘Rule 56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a party’s opposition to summary judgment.’” 30
LAW AND ANALYSIS
Under Louisiana law, a WC carrier pays medical expenses according to a
reimbursement schedule. 31 Fees in excess of this reimbursement schedule are not
recoverable against the employee, employer, or workers’ compensation insurer. 32
Accordingly, WC carriers often pay a lower price for medical procedures than the amount
listed on the patient’s bill, and the medical provider is not entitled to recover the unpaid
amount from the employee or the WC carrier. The difference between the amount billed
by the medical provider and the amount it must accept from the WC insurer to satisfy the

Celotex, 477 U.S. at 332–33, 333 n.3.
Id.; see also First National Bank of Arizona, 391 U.S. at 289.
30 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
31 LA. REV. STAT. ANN. § 23:1034.2.
32 LA. REV. STAT. ANN. § 23:1034.2(D).
28
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full claim is referred to as the “write-off” amount. 33 Because Chris Limberg’s medical care
is ongoing, the total amount of medical bills paid by Starr, and, in turn, the total write-off
amount, are as-yet undetermined. 34
Starr moves for summary judgment that Plaintiff may not recover the write-off
amount under the UM policy. Whether Plaintiff may recover the write-off amount is
contingent upon whether the collateral source rule applies. If the collateral source rule
applies, the plaintiff may recover the full value of his medical expenses under the UM
policy, including the write-off amount. 35 If the collateral source rule does not apply,
however, the plaintiff may not recover the write-off amount; the total amount the plaintiff
may recover will be limited to the amount actually paid for medical expenses. 36
“Under the collateral source rule, a tortfeasor may not benefit, and an injured
plaintiff’s tort recovery may not be reduced, because of monies received by the plaintiff
from sources independent of the tortfeasor’s procuration or contribution.” 37 The
payments a plaintiff receives from an independent source are not deducted from the
award the aggrieved party would otherwise receive from the tortfeasor. As the Louisiana
Supreme Court explained in Bozeman v. State, “[a]s a result of the collateral source rule,
the tortfeasor is not able to benefit from the victim’s foresight in purchasing insurance
and other benefits.” 38

See Bozeman v. State, 2003-1016 (La. 7/2/04); 879 So. 2d 692-93.
R. Doc. 27-4 at ¶ 3. R. Doc. 40-1 at ¶ 3.
35 Bozeman, 879 So. 2d at 703–06. See also Griffin v. La. Sheriff’s Auto Risk Ass’n, 1999-2944 (La. App. 1
Cir. 6/22/01), 802 So. 2d 691, 713–15, writ denied, 2001-2117 (La. 11/9/01), 801 So. 2d 376.
36 Bozeman, 879 So. 2d at 703–06. Plaintiff admits in his opposition to the motion for summary judgment
that Starr is entitled to a credit for any medical expenses paid under the WC policy. R. Doc. 33 at 4.
37 Id. at 698.
38 Id.
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There are two primary considerations for determining whether the collateral
source rule applies: “(1) whether application of the rule will further the major policy goal
of tort deterrence; and (2) whether the victim, by having a collateral source available as a
source of recovery, either paid for such benefit or suffered some diminution in his or her
patrimony because of the availability of the benefit, such that no actual windfall or double
recovery would result from application of the rule.” 39 For example, in Bozeman, the
Louisiana Supreme Court held that Medicaid recipients cannot collect Medicaid write-off
amounts as damages because recipients provide no consideration for the Medicaid
benefit, and therefore the victim’s patrimony has not been diminished. 40 The court
concluded that a plaintiff’s recovery is limited to what is actually paid by Medicaid. 41
In Bellard v. American Cent Insurance Co., the UM carrier for the plaintiff’s
employer sought a credit for disability wage and medical benefits paid by the employer or
its WC carrier. 42 Plaintiff’s employer was not alleged to be at fault in the accident. 43 The
court acknowledged that the third party tortfeasor would not receive any benefit or
reduction in liability as a result of the credit and also emphasized that the plaintiff had
not given consideration for WC benefits:
[U]nlike sick leave, annual leave, or employer-provided health insurance,
workers’ compensation benefits cannot be considered a fringe benefit in the
nature of deferred compensation that would otherwise be available to the
plaintiff but for his injury. To the contrary, workers’ compensation benefits
are required by law, and that same law prohibits an employer from
assessing an employee, either directly or indirectly, with the cost of workers’
compensation insurance. 44
Lockett v. UV Ins. Risk Retention Grp., Inc., 15-166 (La. App. 5 Cir. 11/19/15), 180 So. 3d 557, 570 (citing
Bellard v. Am. Cent. Ins. Co., 2007-1335 (La. 4/18/08)); 980 So. 2d 654, 669. See also Hoffman v. 21st
Century N. Am. Ins. Co., 2014-2279 (La. 10/02/15); 209 So. 3d 702.
40 Bozeman, 879 So. 2d at 705.
41 Id. at 705–06.
42 Id. at 670.
43 Id.
44 Id.
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According to the Louisiana Supreme Court, application of the collateral source rule in
such circumstances would allow the plaintiff to receive an undeserved windfall or double
recovery. 45 As a result, the Court held the collateral source rule did not apply, and plaintiff
was not permitted to recover twice for his medical expenses. 46
In Cutsinger v. Redfern, the Louisiana Supreme Court applied Bellard and held
that, because the collateral source rule did not apply, a plaintiff’s uninsured motorist
carrier should be allowed to reduce its payments by the amount of workers’ compensation
benefits the plaintiff had received. In that case, the Court grounded its decision in the
policy goal of tort deterrence. The court explained:
The collateral source rule exists to prevent the tortfeasor from benefitting
from the victim’s receipt of monies from independent sources. In this way,
the collateral source rule furthers the major policy of tort deterrence. In this
case, the tortfeasor is not requesting the credit for workers’ compensation
benefits paid. The tortfeasor will reap no benefits if the collateral source rule
is not applied and the uninsured motorist carrier is allowed to reduce its
payments to plaintiff by the amount of workers’ compensation benefits she
received. The tortfeasor’s position will not change whether or not the credit
is allowed. Thus, application of the collateral source rule would not further
the major policy goal of tort deterrence. 47
Subsequent Louisiana state cases interpret Cutsinger to stand for the proposition that,
“when the tortfeasor is not the one from whom recovery is sought, tort deterrence is not
furthered.” 48 For instance, deterrence is not advanced “when an employer’s [UM] insurer
seeks a reduction in damages for payments made by the employer and/or its [WC] insurer
to the injured employee, rather than when it is the tortfeasor or her insurer who seeks the

Id. at 669.
Id. at 670.
47 Cutsinger v. Redfern, 2008-2607 (La. 5/22/09); 12 So. 3d 945, 954.
48 Howard v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 2017-1221 (La. App. 1 Cir. 2/16/18); 243 So. 3d
4, 9, writ denied sub nom. Howard v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 2018-0435 (La. 5/11/18),
241 So. 3d 1017 (citing Bellard, 980 So. 2d at 670-71) (emphasis original).
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reduction.” 49 Further, “[w]hile it is important to consider whether the plaintiff paid for
the collateral source or suffered some diminution in [his] patrimony . . .

this

consideration alone is not the determinative factor in deciding whether the collateral
source rule applies.” 50
As explained above, it is undisputed that Plaintiff was injured in the course and
scope of his employment, his employer was not at fault, his medical expenses were paid
by his employers’ WC carrier, and he is now suing his employer’s UM insurer. 51 Bellard
and Cutsinger foreclose Plaintiff’s recovery for the write-off amount, as “[t]he collateral
source rule has no application in cases where the plaintiff is injured in the course and
scope of his employment at the hands of a third party tortfeasor and the employer is
without fault.” 52
Plaintiff attempts to distinguish his case from Bellard by asserting that he did in
fact suffer a diminution of his patrimony sufficient to justify the application of the
collateral source rule. His argument is unconvincing. 53 Plaintiff asserts “in negotiating the
settlement of his workers’ compensation indemnity benefits, [he] accepted a lesser
amount than he would otherwise have accepted in order to maintain his entitlement to
future coverage for future medical expenses.” 54 Plaintiff concedes he continues to receive
medical payments, but contends, “in essence, he has given consideration for the collateral
source benefit of his workers’ compensation coverage of medical expenses accruing after
[settlement]” by accepting a lower amount to settle his claim for lost wage benefits. 55

Id.
Id.
51 See supra notes 4 through 9.
52 Bellard, 980 So. 2d at 670.
53 See R. Doc. 27-4 at ¶5; R. Doc. 40-1 at 2.
54 R. Doc. 33 at 9.
55 Id. at 10.
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Under Bellard and its progeny, the collateral source rule does not apply to
payments made on behalf of a plaintiff by a WC carrier when the plaintiff sues his
employer’s uninsured motorist insurer and the employer is not at fault. In this case,
Plaintiff concedes that his medical benefits were (and continue to be) paid by his
employer’s WC insurer, and he seeks to recover the write-off amount from his employer’s
UM insurer. Plaintiff is not seeking damages from the tortfeasor. 56 As a result, application
of the collateral source rule in this case would not serve the goal of tort deterrence. Nor
has Plaintiff’s patrimony been diminished, as the Louisiana Supreme Court has
determined as a matter of law that there is no diminution of an employee’s patrimony as
a result of the receipt of WC benefits because they are required by law. 57 The terms of
Plaintiff’s settlement agreement do not change this result. 58
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Defendant Starr Indemnity & Liability Company’s motion
for partial summary judgment that Plaintiff Chris Limberg is not entitled to recover the
amount written off by his medical providers is hereby GRANTED.
New Orleans, Louisiana, this 11th day of July, 2018.
_____________________ __________
SUSIE MORGAN
UNITED STATES DISTRICT COURT

R. Doc. 33 at 3 n.5.
Cf. Royer v. State, Dep’t of Transp. & Dev., 16-534 (La. App. 3 Cir. 1/11/17); 210 So. 3d 910, 922 (injured
plaintiff’s patrimony was not diminished because workers’ compensation insurer paid his medical bills).
58 Even if whether Plaintiff accepted a lesser amount on his indemnity settlement were material, Plaintiff
has not created a disputed fact by producing competent summary judgment evidence. Plaintiff has supplied
only a conclusory and self-serving affidavit devoid of any facts to support his claim that he could have
negotiated a higher amount for his indemnity claim if he had also settled his entitlement to future medical
expenses. Nor does the settlement agreement itself contain any facts to support Plaintiff’s argument.
56
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