EMILE BONVILLIAN v. GREAT AMERICAN ALLIANCE INSURANCE COMPANY AND ROUSE ENTERPRISES LLC (2025)

Plaintiff/Appellant, Emile Bonvillian, appeals a summary judgment granted in favor of Defendants/Appellees, Rouse's Enterprises, LLC (“Rouse's”) and Great American Alliance Insurance Company (“Great American”), dismissing his claims against Rouse's and Great American with prejudice. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On March 14, 2022, Emile Bonvillian filed a “Disputed Claim for Compensation” with the Office of Workers’ Compensation, naming Rouse's as his employer and Great American as Rouse's insurer. Bonvillian alleged that on January 25, 2017, he was injured during the course and scope of his employment with Rouse's. He further contended his workers’ compensation rate was incorrect, there were errors concerning the calculation of his average weekly wage and with the payment of supplemental earnings benefits, and he was owed penalties, attorney fees, interest, and costs. Rouse's and Great American (collectively referred to as “Defendants”) filed an answer on April 27, 2022.

Defendants filed a motion for summary judgment on July 29, 2022, alleging there were no genuine issues of material fact and summary judgment should be granted as a matter of law. Defendants contended no penalties or attorney fees were owed to Bonvillian due to the miscalculation of his average weekly wage because Defendants “immediately rectified the deficiency upon notice and knowledge of such.” Defendants stated that Bonvillian informed them that “there would most likely be no claim for penalties and attorney's fees if Defendants accepted [Bonvillian's] average weekly wage calculation and made all back payments.” They further argued that the court must conduct a “good faith” analysis when looking at the Defendants’ actions and their failure to provide compensation under the scheme and that they were not in “bad faith” because they “immediately corrected the mistake and issued payment to [Bonvillian].” On March 2, 2023, Bonvillian filed an opposition and asserted the motion for summary judgment should be denied. No attachments were filed with Bonvillian's opposition. In response, Defendants filed a reply memorandum on March 5, 2023.¹

On November 17, 2023, the trial court heard Defendants’ motion. The trial court granted summary judgment in favor of Defendants and against Bonvillian, and dismissed Bonvillian's claim against Defendants with prejudice. The trial court indicated it found “an agreement (offer, acceptance and specific performance) was made between the parties regarding the calculation of the [average weekly wage] and [workers’ compensation rate] and all issues associated with the calculation of the [average weekly wage] and [workers’ compensation rate] which eliminated the assessment to Defendants of penalties, attorney fees, costs and interest.” The trial court signed a judgment to that effect on January 3, 2024.² Bonvillian appeals, contending the trial court erred in granting summary judgment in favor of Defendants and finding the parties entered into a compromise regarding penalties and attorney fees.

SUMMARY JUDGMENT

The determination of motions for summary judgment in workers’ compensation cases is subject to the same standards utilized in ordinary civil actions. Plant Performance Services, LLC v. Harrison, 2017-1286 (La. App. 1st Cir. 4/6/18), 249 So. 3d 1, 5. 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. Grady v. Ahles, 2024-0244 (La. App. 1st Cir. 12/20/24), ___ So. 3d ___, ___, 2024 WL 5182334, *2. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Leet v. Hospital Service District No. 1 of East Baton Rouge Parish, 2018-1148 (La. App. 1st Cir. 2/28/19), 274 So. 3d 583, 587.

The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1). 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. La. C.C.P. art. 966(D)(1). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Sylvest v. Rolling, 2024-0408 (La. App. 1st Cir. 11/13/24), ___ So. 3d ___, ___, 2024 WL 4762489, *2. If the adverse party fails to meet this burden, the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

DISCUSSION

The issue identified by the Defendants is whether Bonvillian is entitled to penalties and attorney fees due to the incorrect calculation of his average weekly wage under La. R.S. 23:1201. We note that while the trial court found that the parties reached a settlement regarding penalties and attorney fees, Defendants did not raise that argument in their motion for summary judgment. In their motion, Defendants contended that penalties and attorney fees should not be assessed under La. R.S. 23:1201 because they were in good faith and tendered payment to Bonvillian shortly after it was requested. As mentioned above, Defendants’ motion specifically stated that Bonvillian informed Defendants that “there would most likely be no claim for penalties and attorney's fees if Defendants accepted [Bonvillian's] average weekly wage calculations and made all back payments.” (emphasis added.) Thus, it appears that Defendants did not assert a settlement was reached.

As the movers on the motion for summary judgment, Defendants bore the initial burden of proof. However, where Defendants would not bear the burden of proof at trial, they are not required to negate all essential elements of Bonvillian's claim. See La. C.C.P. art. 966(D)(1); see also Pontchartrain Partners, LLC v. Terrebonne Levee and Conservation District, 2024-0982 (La. App. 1st Cir. 2/28/25), ___ So. 3d ___, ___, 2025 WL 656253, *5. Ordinarily, the claimant bears the burden of proving his entitlement to statutory penalties and attorney fees due to the employer's failure to timely pay workers’ compensation benefits. See Davis v. Farm Fresh Food Supplier, 2003-13 81 (La. App. 1st Cir. 5/14/04), 879 So. 2d 215, 220. But here, there is no dispute that the benefits were not timely paid. Defendants argue that even so, they should not be penalized. Thus, as to their defense against penalties, Defendants bore the burden of proof. See Harris v. Union National Fire Insurance Company, 2019-0443 (La. App. 1st Cir. 1/15/20), 311 So. 3d 1130, 1137, writ denied, 2020-00396 (La. 6/3/20), 296 So. 3d 1067 (stating that the “party who attempts to rely on the existence of a compromise agreement bears the burden of [proof]”); see also ABS Services, Inc. v. James Construction Group, L.L.C., 2016-0705 (La. App. 1st Cir. 12/21/18), 269 So. 3d 723, 73 5, writ denied, 2019-0473 (La. 6/17/19), 273 So. 3d 1212 (stating that the party asserting the existence of a compromise has “the burden of proof to show that the requirements of a valid compromise are present, including that the parties intended to settle ); see also Buck's Run Enterprises, Inc. v. Mapp Const., Inc., 1999-3054 (La. App. 1st Cir. 2/16/01), 808 So. 2d 428, 431 (stating generally that the defendant has the burden of proving an affirmative defense).

Louisiana Revised Statutes 23:1201(F)(1) and (2) provides, in pertinent part:

F. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section ․ shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars․ Penalties shall be assessed in the following manner:

(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.

(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Thus, under La. R.S. 23:1201(F), an employer or insurer shall be assessed with penalties and reasonable attorney fees for failure to timely pay compensation in accordance with La. R.S. 23:1201. This may include the failure to timely pay compensation due to miscalculation. See Sharp v. St. Tammany Marine & Powersports, 2008-1992 (La. App. 1st Cir. 9/10/09), 23 So. 3d 347, 353;³ see also Greer v. Whole Foods Market, Inc., 2013-0455 (La. App. 4th Cir. 1/15/14), 133 So. 3d 80, 90, writ denied, 2014-0258 (La. 4/4/14), 135 So. 3d 1184.⁴ The provision does not apply if the claim is reasonably controverted or if the nonpayment results from conditions over which the employer or insurer had no control. La. R.S. 23:1201(F)(2); Terrebonne v. St. Tammany Parish Hospital, 2021-1212 (La. App. 1st Cir. 7/20/22), 347 So. 3d 909, 916. To reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial or non-payment of benefits. Sharp, 23 So. 3d at 351-52

Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed regarding benefits, penal statutes are to be strictly construed. Terrebonne, 347 So. 3d at 916. The crucial inquiry in proving entitlement to statutory penalties and attorney fees is whether the employer has an articulated and objective reason for denying payment at the time it took that action. See Lee v. Smitty's Supply, Inc., 2024-0460 (La. App. 1st Cir. 12/20/24), ___ So. 3d ___, ___, 2024 WL 5182406, *6.

Through his Disputed Claim for Compensation and a subsequent email from Bonvillian's counsel to Defendants’ counsel, Bonvillian alleged that Defendants did not pay him the correct amount and that Defendants owed him an additional $10,289.51. Thereafter, Defendants filed their motion for summary judgment, contending penalties and attorney fees were not owed for the miscalculation of Bonvillian's average weekly wage because they immediately rectified the deficiency upon notice and knowledge of such and there was no bad faith on their behalf. In support of their motion, Defendants attached the “Workers Compensation – First Report of Injury or Illness;” the “Notice of Payment, Modification, Suspension, Termination or Controversion of Compensation or Medical Benefits;” a January 22, 2018 citation with attached documents addressed to Rouse's; a February 10, 2020 citation with attached documents addressed to Rouse's; a notice of trial; Bonvillian's pretrial statement; excerpts from the trial transcript; a letter from Rouse's counsel to Bonvillian's counsel; an email from Bonvillian's counsel to Rouse's counsel; another email from Bonvillian's counsel to Rouse's counsel; a copy of a check to Bonvillian from Great American; a notice of trial; a March 15, 2022 judgment; and a March 14, 2022 citation with attached documents addressed to Great American.⁵

Initially, the “Workers Compensation – First Report of Injury or Illness” establishes that Bonvillian's accident occurred at Rouse's on January 25, 2017. The report states that Bonvillian was lifting a table when he felt pain in his side. The report further provides that he notified his employer of the accident on February 21, 2017, and that his last day worked was February 27, 2017. Next, the “Notice of Payment, Modification, Suspension, Termination or Controversion of Compensation or Medical Benefits” indicates that the injury Bonvillian suffered was a rib fracture, that his average weekly wage was $950.20, and that he was to be paid indemnity benefits for temporary total disability in the amount of $633.47 per week.

Defendants’ counsel sent a letter to Bonvillian's counsel, requesting Bonvillian's counsel confirm that he agreed to waive any entitlement to penalties and attorney fees for the calculation of the average weekly wage and corresponding compensation rate. In an email response, Bonvillian's counsel stated that if the parties went to trial on the issue, he agreed that Defendants’ counsel “probably would not be penalized.” The email went on to state that Bonvillian's counsel's intent was to provide a notice of disagreement and if the average weekly wage was disputed, Bonvillian would make penalties and attorney fees an issue moving forward. In a subsequent email dated August 20, 2021, from Bonvillian's counsel to Defendants’ counsel, the calculation of the average weekly wage was $1,075.53 and the corresponding compensation rate was $657.00. The email concluded by stating the total owed through August 31, 2021 was $10,289.51 and requesting the back payment to be sent. Great American then sent a check dated August 27, 2021, in the amount of $10,289.51.

Defendants do not dispute the amount due to Bonvillian was miscalculated and underpaid, so Defendants did not reasonably controvert Bonvillian's claim. See La. R.S. 23:1201(F)(2). The fact that Defendants may have mistakenly miscalculated the amount due or that they later paid the amount due after it was requested by Bonvillian's counsel does not exempt them from penalties and/or attorney fees. Further, while the trial court found an agreement was made between the parties regarding the calculation of the average weekly wage and workers’ compensation rate and all issues associated, which eliminated the assessment to Defendants of penalties, attorney fees, costs and interest, we disagree. Bonvillian's counsel did not agree to waive entitlement to penalties and attorney fees through his email exchange with Defendants’ counsel.⁶ After de novo review, we find Defendants did not meet their burden of proof which would entitle them to summary judgment as a matter of law. Therefore, the trial court erred in granting Defendants’ motion for summary judgment.

CONCLUSION

For the above and foregoing reasons, the January 3, 2024 judgment of the trial court granting Rouse's Enterprises, LLC and Great American Alliance Insurance Company's motion for summary judgment and dismissing Emile W. Bonvillian's claims against them, with prejudice, is reversed. Costs of this appeal are assessed to Rouse's Enterprises, LLC and Great American Alliance Insurance Company.

REVERSED.

FOOTNOTES

1.   Defendants filed attachments with their reply, which are not proper and will not be considered by this court. See La. C.C.P. art. 966(B)(3).

2.   We note Defendants filed a second motion for summary judgment regarding La. R.S. 23:1201.1 on October 3, 2023. That motion was also heard by the trial court on November 17, 2023, and was denied. The trial court's rulings on both motions for summary judgment were contained in the January 3, 2024 judgment. In that judgment, the trial court stated the second motion for summary judgment was denied because “there were steps that were not followed in the preliminary determination process under [La. R.S.] 23:1201.1 which negate the Defendants’ use of this statute to eliminate the assessment of penalties, attorney fees, costs and interest.”

3.   In Sharp v. St. Tammany Marine & Powersports, 2008-1992 (La. App. 1st Cir. 9/10/09), 23 So. 3d 347, 353, the injured employee, Matthew, was paid $121 per week for the first two weeks and $105 per week for the remainder of the time, when his weekly payments should have been $108.75. More than two years after his compensation benefits began, Matthew filed a disputed claim for compensation, alleging that his wage compensation rate was incorrect. Sharp, 23 So. 3d at 350. Based on this payment history, this court found that Matthew's compensation benefits after the first two weeks were underpaid due to miscalculation, and, pursuant to La. R.S. 23:1201(F), a penalty and reasonable attorney fee must be assessed for this claim. Sharp, 23 So. 3d at 353.

4.   In Greer v. Whole Foods Market, Inc., 2013-0455 (La. App. 4th Cir. 1/15/14), 133 So. 3d 80, 90, writ denied, 2014-0258 (La. 4/4/14), 135 So. 3d 1184, the parties stipulated that Mr. Greer's average weekly wage was $718.55, resulting in a compensation of $479.03. About two years after he was injured, Mr. Greer filed a supplemental and amended petition and requested penalties and attorney fees. Greer, 133 So. 3d at 84. Whole Foods presented evidence that Mr. Greer was paid benefits at a rate of $472.88 per week. Mr. Greer was underpaid weekly in the amount of $6.16. Because the indemnity benefits were not paid in full due to Whole Foods’ admitted miscalculation, the appellate court found that the penalty imposed by the trial court was warranted pursuant to La. R.S. 23:1201(F). Greer, 133 So. 3d at 90.

5.   The only documents that may be filed or referenced in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, certified copies of public documents or public records, certified copies of insurance policies, authentic acts, private acts duly acknowledged, promissory notes and assignments thereof, written stipulations, and admissions. La. C.C.P. art. 966(A)(4)(a). The court shall consider only those documents filed or referenced in support of or in opposition to the motion for summary judgment but shall not consider any document that is excluded pursuant to a timely filed objection. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. La. C.C.P. art. 966(D)(2). Here, Bonvillian did not object to the documents filed in support of Defendants’ motion for summary judgment.

6.   A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071. A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings. La. C.C. art. 3072.

MILLER, J.