JOSEPH HEBERT AND SIERRA WILLIAMS HEBERT v. LALUMINA LLC ALMATIS INC ARTHUR METALS LLC AND CINDY SNELLGROVE (2026)

Joseph Herbert ¹ and his wife, Sierra Williams Herbert (Plaintiffs), appeal the trial court's judgment which denied their motion for partial summary judgment and granted summary judgment in favor of Everest National Insurance Company (Everest), dismissing Plaintiffs’ claims against Everest. For the reasons that follow, we affirm.²

FACTS AND PROCEDURAL HISTORY

On April 1, 2020, Mr. Herbert sustained serious injuries in the course and scope of his employment with LAlumina, LLC (LAlumina). At the time the incident occurred, Mr. Herbert was carrying out a “pump swap” on Pump No. 3 of Unit 330 in the “Digestion Unit” of an alumina refining facility located in Burnside, Louisiana (the Facility). In the Digestion Unit, hot sodium hydroxide, or “caustic soda,” was used to dissolve bauxite into a slurry, which was pumped through pipes and into a screen box, or wire “basket,” to filter out larger solid debris. A pump swap was a routine maintenance procedure that involved shutting down an operational set of pumps and alternating the refining process to an adjacent set of inactive pumps. Once the newly in-service pumps were performing properly, the pumps being taken out of service would be drained, depressurized, and shut down. Sometimes, operators used an adopted procedure referred to as “cracking the basket” to complete a pump swap: an operator would hit the screen box, or the “basket,” with a mallet to crack open the screen box door, releasing pressure in the pump system and draining some of the material inside.

Plaintiffs filed the instant suit on September 10, 2020. Plaintiffs alleged that LAlumina willfully failed to properly maintain the Facility and provide a safe workplace, and as a result of LAlumina's actions and/or inactions, operators were required to “crack the basket” to complete a pump swap on Pump No. 3. Plaintiffs contended that the April 1, 2020 incident was substantially certain to occur and the exclusive remedy rule of workers’ compensation did not apply, such that they were entitled to assert tort claims and seek damages outside of the scope of workers’ compensation benefits. Plaintiffs also asserted a defamation claim against LAlumina's Safety and Training Superintendent, Cindy Snelgrove; a negligence claim against several entities that previously owned LAlumina and/or the facility where the April 1, 2020 incident occurred;³ and a direct-action claim against “placeholder” defendants as insurers of the named defendants.

LAlumina answered Plaintiffs’ suit and moved for summary judgment dismissing Plaintiffs’ claims. LAlumina argued Plaintiffs’ exclusive remedy was workers’ compensation, and further maintained Mr. Herbert was not following proper procedure when “cracking the basket.” In a March 27, 2023 judgment, the trial court dismissed Plaintiffs’ defamation claim against Ms. Snelgrove, but denied summary judgment “on all remaining issues,” finding “genuine issues of material fact exist.”

Thereafter, Plaintiffs amended their petition to name Everest National Insurance Company (Everest), LAlumina's workers’ compensation and employer's liability insurance carrier, as a direct defendant.⁴ Everest answered Plaintiffs’ original and amended petitions and filed a petition for intervention. Everest confirmed payment of workers’ compensation benefits to Mr. Herbert pursuant to Part One of Workers’ Compensation and Employer's Liability Policy No. CC5WC00034191 (WC/EL policy), which provided coverage for workers’ compensation benefits as required by law. However, Everest denied any additional liability for Plaintiffs’ damages under Part Two of the WC/EL policy, which provided employer's liability coverage for bodily injury “by accident” arising out of and in the course of the injured employee's employment with LAlumina, subject to certain exclusions, including bodily injury intentionally caused by LAlumina and any obligation imposed under workers’ compensation law.

Thereafter, Plaintiffs and Everest filed competing motions for summary judgment. Plaintiffs filed a motion for partial summary judgment seeking a ruling that Part Two of the WC/EL policy provided employer's liability coverage for their damages. Everest sought summary judgment dismissing Plaintiffs’ claims. Everest argued Plaintiffs could not establish the April 1, 2020 incident was the result of LAlumina's intentional act, and thus, Plaintiffs’ exclusive remedy was workers’ compensation. Everest also argued that if Plaintiffs could establish the April 1, 2020 incident was the result of LAlumina's intentional act, the employer's liability portion of the WC/EL policy contained exclusions that still precluded coverage under Part Two of the policy.⁵ Specifically, Everest maintained that Part Two excluded coverage for “[b]odily injury intentionally caused or aggravated by [LAlumina,]” and therefore, provided no coverage if the April 1, 2020 incident was found to be the result of LAlumina's intentional act, rather than an accident.

At the hearing on the competing summary judgment motions, the trial court admitted both parties’ summary judgment evidence into the record without objection. After taking the matter under advisement, the trial court signed a written judgment on October 1, 2024, which provided, in pertinent part:

UPON CONSIDERATION of the Motions for Summary Judgment filed by Defendant, [Everest,] and Plaintiffs, [Mr. and Mrs. Herbert,] and for the above reasons:

IT IS ORDERED, ADJUDGED, AND DECREED that [Everest's] Motion for Summary Judgment is hereby GRANTED.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that [Plaintiffs’] Motion for Partial Summary Judgment is hereby DENIED.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ claims against [Everest] are DISMISSED WITH PREJUDICE.

Plaintiffs have appealed the adverse judgment.⁶ On appeal, Plaintiffs argue the trial court erred by denying their motion for partial summary judgment; granting Everest's motion for summary judgment; and dismissing Plaintiffs’ claims against Everest.

LAW AND DISCUSSION

Plaintiffs first argue that the March 27, 2023 judgment, which dismissed Plaintiffs’ defamation claim and denied LAlumina's motion for summary judgment on all other issues, precluded the October 1, 2024 judgment granting summary judgment in favor of Everest. Plaintiffs argue the summary judgment motions raised the same issue, i.e., whether Plaintiffs’ exclusive remedy was workers’ compensation, and were decided on the same evidence. Plaintiffs also assert the only difference between the two summary judgments was that one judge rendered the March 27, 2023 judgment, which granted LAlumina's summary judgment in part and dismissed Plaintiffs’ defamation claim, but denied LAlumina's summary judgment on all other issues, while a different judge signed the October 1, 2024 judgment granting Everest's summary judgment motion. Thus, Plaintiffs contend the trial court erred in “reconsidering” its earlier ruling.

We disagree. The judgments in question were rendered on different motions filed by different parties. However, even if the judgments in question were rendered on identical motions filed by the same party, the March 27, 2023 judgment would not have precluded the trial court from issuing the October 1, 2024 judgment. The jurisprudence of this Court, and other circuits, specifically allows a trial court to consider a second motion for summary judgment after a first motion for summary judgment on the same issue has been denied. The denial of a motion for summary judgment is an interlocutory judgment, which the trial court may change at any time prior to final judgment. Bozarth v. State LSU Medical Center/Chabe/t Medical Center, 2009-1393 (La.App. 1 Cir. 2/12/10), 35 So.3d 316, 323. This is true regardless of whether the mover files new evidence on the summary judgment issue. See Honor v. Tangipahoa Parish School Board, 2013-0298 (La.App. 1 Cir. 11/1/13), 136 So.3d 31, 34, writ denied, 2014-0008 (La. 2/28/14), 134 So.3d 1181; Alvin Fairburn & Associates, LLC v. Harris, 2020-1292 (La.App. 1 Cir. 10/4/21), 2021 WL 4551123, *3 (unpublished). Accordingly, the March 27, 2023 judgment dismissing Plaintiffs’ defamation claim and denying LAlumina's motion for summary judgment on all other issues did not bar the trial court from reconsidering any issue addressed therein. This assignment of error lacks merit.

Next, we consider the merits of the cross-motions for summary judgment before us. The cross-motions raise interrelated issues: whether summary judgment in favor of Everest was proper because workers’ compensation is Plaintiffs’ exclusive remedy, and whether summary judgment in favor of Everest and denying Plaintiffs’ motion for partial summary judgment was proper because coverage for Plaintiffs’ damages is precluded by certain exclusions in the employer's liability portion of the policy.⁷

Summary Judgment Law

“After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). A genuine issue is one as to which reasonable persons could disagree. Smith v. Our Lady of the Lake Hosp., Inc., 1993-2512 (La. 7/5/94), 639 So.2d 730, 751. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Smith, 639 So.2d at 751. Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact. Smith, 639 So.2d at 751.

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).

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Boudreaux v. Coco, 2021-1009 (La.App. 1 Cir. 4/28/22), 342 So.3d 354, 359. The decision as to the propriety of granting a motion for summary judgment must be made with reference to the substantive law that applies to the case. Zamora v. Equilon Enterprises, LLC, 2024-507 (La.App. 5 Cir. 5/14/25), 415 So.3d 365, 368, writ denied, 2025-00731 (La. 10/1/25), 417 So.3d 567. The substantive law that applies to this case is the Louisiana Workers’ Compensation Law (LWCA), La. R.S. 23:1020.1, et seq.

The LWCA provides coverage to an employee for personal injury caused by an accident arising out of and in the course of his employment. Starkey v. Livingston Parish Council, 2012-1787 (La.App. 1 Cir. 8/6/13), 122 So.3d 570, 574. Generally, workers’ compensation is the exclusive remedy of an employee injured in the course and scope of his employment. La. R.S. 23:1032. However, La. R.S. 23:1032(B) provides an exception to this tort immunity when the employee's injury is the result of an intentional act. The motion for summary judgment is a proper procedural device to penetrate a plaintiff's allegations that his injuries resulted from an intentional tort. Zamora, 415 So.3d at 368.

Workers’ Compensation Insurance

The Louisiana Workers’ Compensation Act mandates that employers carry workers’ compensation insurance or insure themselves through an approved self-insurance program. Rick J. Norman, Matthew B. Pettaway, Leah C. Cook, § 15:5 Worker's Compensation Insurance, La. Prac. Employment Law. Employers usually satisfy their obligation to provide workers’ compensation insurance by obtaining a Workers’ Compensation/Employer's Liability (WC/EL) policy. Workers’ compensation insurance is routinely written in combination with an employer's liability policy to provide protection for those situations where worker's compensation may not apply and thus avoid a gap in protection because employee claims subject to workers’ compensation law are generally excluded in other types of liability policies. Employer's liability insurance is intended to apply only to those situations where the insured employer is not subject to workers’ compensation law or where, even though subject to such law, the employee has the right to bring a tort action despite the employer immunity provisions of the workers’ compensation law. Id. Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. George S. May Intern. Co. v. Arrowpoint Capital Corp., 2011-1865 (La.App. 1 Cir. 8/10/12), 97 So.3d 1167, 1171.

Analysis

We begin by considering whether summary judgment in favor of Everest was proper on the basis that workers’ compensation is Plaintiffs’ exclusive remedy. See Miller v. Sattler Supply Co. Inc., 2013-2558 (La. 1/27/14), 132 So.3d 386, 387 (per curiam). If workers’ compensation is Plaintiffs’ exclusive remedy, then Plaintiffs’ damages are not covered by the employer's liability portion of the WC/EL policy. See WC/EL Policy, Part Two: Employers Liability Insurance, Exclusion (C)(4).⁸ See a/so § 15:5 Worker's Compensation Insurance, La. Prac. Employment Law.

In this matter, Plaintiffs do not allege that LAlumina consciously desired to cause harm to Mr. Herbert. Rather, they assert Mr. Herbert's injuries were substantially certain to follow from LAlumina's conduct. An act is considered intentional whenever the defendant either consciously desired to bring about the physical results of his act or believed they were substantially certain to follow from his conduct. King v. Schuylkill Metals Corp., 1990-0182 (La.App. 1 Cir. 1991), 581 So.2d 300, 302, writ denied, 1991-1353 (La. 1991), 584 So.2d 1161 (citing Bazley v. Tortorich, 397 So.2d 475 (La. 1981)). To meet the criteria of “substantial certainty” requires more than a reasonable probability that an injury will occur; this term has been interpreted as being equivalent to “inevitable,” “virtually sure,” and “incapable of failing”. King, 581 So.2d at 302. Louisiana courts of appeal have narrowly construed the intentional act exception according to its legislative intent and have almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment. Reeves v. Structural Preservation Sys., 1998-1795 (La. 3/12/99), 731 So.2d 208, 211-12.

Everest maintains the trial court's grant of summary judgment in favor of Everest and dismissing Plaintiffs’ claims against Everest was proper because Plaintiffs cannot prove the April 1, 2020 incident was substantially certain to occur, and therefore, workers’ compensation is Plaintiffs’ exclusive remedy. In support of its position, Everest submitted the deposition testimony of Ms. Snelgrove, LAlumina's Safety and Training Superintendent. According to Ms. Snelgrove, LAlumina's investigation into the April 1, 2020 incident concluded that Mr. Herbert did not follow proper procedure when he attempted to open the screen box door without draining the system first. However, Ms. Snelgrove acknowledged that the discharge drain valve on Pump No. 3 was replaced after the incident.

Everest also offered the deposition testimony of Benjamin Chaney, Mr. Herbert's direct supervisor; the deposition testimony of Mark Leonard Chaney, Jr., the supervisor for the shift that relieved Mr. Herbert's shift; and the deposition testimony of Lejerlme O'Neil Brocks, Sr., another LAlumina supervisor. Benjamin Chaney testified that the pump swap process occurred about once a week in the digestion unit. Benjamin Chaney, Mark Chaney, and Lejerlme Brocks, Sr., each testified they had “cracked the basket” at the Facility. However, Benjamin Chaney stated he did not condone “cracking the basket,” was not aware of any supervisor instructing operators to do it, and he did not know it was being done routinely.

Benjamin Chaney and Lejerlme Brocks both testified that the pump should be drained to relieve the pressure from the pump before “cracking the basket.” If there was a problem with the drains, Benjamin Chaney testified that it was the responsibility of the operators to unplug them. Benjamin Chaney acknowledged that Pump No. 3 did have a problem with the drain screen prior to the incident on April 1, 2020, that a work order had been submitted about it, and that operators were not responsible for repairing or replacing those screens. However, Benjamin Chaney testified that problems with the screen box would not prevent an operator from draining the liquid and that he did not believe the incident would have occurred if the box had been properly drained.

During his deposition, Lejerlme Brocks testified that a bolt should have been used to secure the door of the screen box, not a metal tie wire, and that he did not believe the accident would have happened the way it did if a bolt had been used instead of a metal tie wire. Benjamin Chaney testified that Mr. Herbert knew that a bolt was the appropriate way to secure the door and that bolts were “free issue” in the warehouse. Benjamin Chaney also testified that he believed the accident would have been “way less severe” if the bolt had properly been in place. Ms. Snelgrove testified that everyone at Llalumina had stop work authority, meaning that if they deemed something to be unsafe, they could stop work and go to their immediate supervisor and discuss the situation.

Regarding prior incidents, Benjamin Chaney testified that he was not aware of any other burn incidents that had occurred in the digestion unit, which included Pump No. 3. Ms. Snelgrove denied knowledge of any other incidents at the Facility that involved Pump No. 3. Mr. Brocks also testified that he was not aware of any other incidents that occurred at any of the blow-off pumps in the digestion unit.

In opposition to Everests arguments that workers’ compensation was Plaintiffs’ exclusive remedy, Plaintiffs offered three affidavits: the affidavit of Mr. Herbert; the affidavit of Merlin Littles, who was working with Mr. Herbert on Pump No. 3 at the time of the April 1, 2020 incident; and the affidavit of Durrell Scott, who worked alongside Mr. Hebert at the Facility prior to the April 1, 2020 incident. Although the three affiants disagreed on the exact length of time Pump No. 3 had been broken and/or clogged prior to the April 1, 2020 incident, they each testified that it had been badly broken and/or clogged for months, if not years. Specifically, Mr. Herbert attested Pump No. 3 had been broken and/or clogged “for at least 18 months” prior to the April 1, 2020 incident; Mr. Littles attested Pump No. 3 had been broken and/or clogged since he began working at the Facility in 2018 or 2019; and Mr. Scott attested Pump No. 3 had been broken and/or clogged since he began working in the Digestion Unit around 2016.

Mr. Herbert, Mr. Littles, and Mr. Scott each attested it was “well-known” at the Facility that Pump No. 3 was “broken and/or clogged badly,” including by supervisors and/or management. The three men also attested that, “[b]ecause Pump [No.] 3 was so clogged, management taught us a procedure to drain the pumps. This process was known to us as “cracking the basket.” Mr. Herbert, Mr. Littles, and Mr. Scott further attested that “[m]anagement watched us crack the basket often” and “cracking the basket” “became the adopted procedure by the operators of the Facility because there was no other way to drain the pumps when they were broken.” Mr. Herbert, Mr. Littles, and Mr. Scott explained:

12. The procedure to “crack the basket” included first discharging the material through the drains. Then, the operators hit the drain basket 1 to 3 times with a mallet. Hitting the basket would slightly open the gate or door of the pump to release the material inside.

13. Cracking the basket ensures that any pressure that was inside of the pump would be released through the discharge.

14. Because the discharge drains were either broken or clogged, cracking the basket is the only way to shut down the pump.

Mr. Herbert, Mr. Littles, and Mr. Scott all attested that LAlumina's management and employees were “aware of the substantial risk of getting sprayed when cracking the basket.” The three men provided testimony that there were “so many instances of operators getting sprayed by caustic material” that the operators “[lost] track of the individual instances[,]” and “[g]etting sprayed by caustic material became the normal practice of operating the [F]acility.” Mr. Herbert, Mr. Littles, and Mr. Scott attested that “[m]anagement knew that we would get sprayed by caustic material daily[,]” that employees reported “numerous injuries” and incidents of being sprayed with caustic material, and that LAlumina's management and employees knew “that if you were at the wrong place at the wrong time, you could get seriously injured.” Mr. Herbert, Mr. Littles, and Mr. Scott attested that although management would indicate a work order had been placed for Pump No. 3, Pump No. 3 was not repaired, but remained in operation. All three men attested, “It became a normal day-to-day procedure to get sprayed. We knew that we would get sprayed, but it was just a question of how badly we would get sprayed.” Mr. Herbert, Mr. Littles, and Mr. Scott all attested it was “substantially certain” that someone would be seriously injured “because of Pump [No.] 3.” Mr. Scott further attested he was sprayed by caustic material while “cracking the basket” a few days prior to the April 1, 2020 incident, and Mr. Littles attested he saw Mr. Scott's incident occur.

As stated above, “substantially certain to follow” requires more than a reasonable probability that an injury will occur, and “certain” has been defined to mean “inevitable” or “incapable of failing.” Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Reeves, 731 So.2d at 213. Phrases using words such as “substantially certain” are not magical; their mere recitation does not transform a plaintiff's allegations into intentional acts. Henderson v. Claiborne Elec., 34,825 (La.App. 2 Cir. 6/20/01), 793 So.2d 247, 250, writ denied, 2001-2140 (11/9/01), 801 So.2d 373.

Here, it is not disputed that Pump No. 3 needed repairs at the time of the incident that injured Mr. Herbert. However, the evidence does not support a finding of intent within the meaning of the workers’ compensation intentional act exclusion. See Burrow v. Delta Container and XYZ Ins. Co., 2004-566 (La.App. 5 Cir. 10/26/04), 887 So.2d 599, 602. The summary judgment evidence does not indicate that Mr. Herbert's injuries were substantially certain to occur as a result of carrying out the “pump swap” on Pump No. 3 that day. Rather, the summary judgment evidence establishes that a “pump swap” was carried out on Pump No. 3 on an almost weekly basis without evidence of any prior injuries involving Pump No. 3. The injury causing event was not “incapable of failing” given the frequency with which the “pump swap” was successfully carried out without injuries before this incident. See Batiste v. Bayou Steel Corp., 2010-1561 (La. 10/1/10), 45 So.3d 167, 168; Henderson, 793 So.2d at 249-50.

We thus conclude Plaintiffs’ exclusive remedy was workers’ compensation and, accordingly, the trial court did not err by granting Everest's motion for summary judgment. Because we find Plaintiffs’ exclusive remedy was workers’ compensation, we also find no error in the trial court's judgment denying Plaintiffs’ Motion for Partial Summary Judgment regarding coverage under the employer's liability portion of the WC/EL policy.

CONCLUSION

For the foregoing reasons, we affirm the October 1, 2024 judgment denying the motion for partial summary judgment sought by Plaintiffs Joseph Herbert and Sierra Williams Herbert; granting the motion for summary judgment sought by Defendant Everest National Insurance Company; and dismissing the Herberts’ claims against Everest National Insurance Company. Costs of this appeal are assessed against Joseph Herbert and Sierra Williams Herbert.

AFFIRMED.

Given the specific facts and circumstances of this case, I respectfully dissent from the majority's holding that the trial court properly granted summary judgment in favor of Everest. The Louisiana Supreme Court has consistently held that an intentional act, within the context of the Louisiana Workers’ Compensation Act, LSA-R.S. 23:1020.1, et seq., requires the actor to either (1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Batiste v. Bayou Steel Corp., 2010-1561 (La. 10/1/10), 45 So.3d 167, 168. Here, I find that Plaintiffs and Everest presented contradictory evidence sufficient to create a genuine issue of material fact and preclude summary judgment in favor of Everest.

Specifically, Plaintiffs and Everest presented contradictory evidence regarding whether LAlumina directed employees to, or had knowledge that employees regularly did, “crack the basket.” Despite Ms. Snelgrove's testimony that Mr. Herbert did not follow proper procedure when he attempted to carry out the pump swap by “cracking the basket,” Benjamin Chaney, Mark Chaney, and Lejerlme Brocks, Sr. - all LAlumina supervisors - testified they had “cracked the basket” at the Facility. Additionally, although Benjamin Chaney testified that he did not condone “cracking the basket,” was not aware of any supervisor instructing operators to do it, and did not know it was being done routinely, Mark Chaney testified he taught the procedure to other employees and that it was commonly used, and Lejerlme Brocks testified management was aware the procedure was used.

Plaintiffs and Everest also presented contradictory evidence as to whether LAlumina responded to employee complaints regarding dangerous circumstances and directed employees to return to work without correcting said circumstances. Here, Mr. Herbert, Mr. Littles, and Mr. Scott consistently attested that LAlumina was aware of badly broken and clogged drains, specifically including Pump No. 3; that LAlumina's employees were taught to “crack the basket”; that “cracking the basket was the only way to accomplish a pump swap when pumps were broken or clogged”; that employees and management were “aware of the substantial risk of getting sprayed when cracking the basket;” and that it was not a question of whether employees would get sprayed with caustic material while “cracking the basket,” but of “how badly” the employees would be sprayed. In short, Plaintiffs offered three affidavits containing testimony that the only way to accomplish a pump swap on Pump No. 3 was by “cracking the basket,” and that an incident such as the April 1, 2020 incident in which Mr. Herbert was injured was therefore inevitable. Mr. Scott further attested he was sprayed by caustic material while “cracking the basket” a few days prior to the April 1, 2020 incident, and Mr. Littles attested he witnessed this incident.

The trial court may not evaluate the weight of the evidence or make a credibility determination on a motion for summary judgment. Further, any doubt as to a dispute regarding an issue of material fact must be resolved against granting the motion and in favor of a trial on the merits. See Velocity Investments, LLC v. Pasqua, 2022-0626 (La.App. 1 Cir. 1/10/23), 361 So.3d 23, 27. Given the specific facts and circumstances of this case, and particularly the conflicting testimony offered by the LAlumina supervisors and the affidavit testimony offered by Plaintiffs, I cannot say there is no genuine issue of material fact as to whether the April 1, 2020 incident was substantially certain to occur. Therefore, I am constrained to find summary judgment in favor of Everest was not proper based on the unique facts presented.

In all other respects, I agree with the majority.

FOOTNOTES

1.   While the case caption identifies Plaintiffs’ last name as “Hebert,” the record as a whole indicates that the correct spelling of Plaintiffs’ last name is “Herbert.”

2.   Generally, an appeal may not be taken from the trial court's denial of a motion for summary judgment. See La. C.C.P. art. 968 (“An appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment.”). However, the denial of a motion for summary judgment may be reviewed on an appeal of a final judgment in the suit when the issue raised in the motion for summary judgment is raised again on appeal. Naquin v. Church Mutual Insurance Company, 2024-0303 (La.App. 1 Cir. 12/30/24), 403 So.3d 1188, 1201, writ denied, 2025-00144 (9/10/25), 415 So.3d 1279.

3.   Said entities included Almatis, Inc., Arthur Metals, Inc., and Almatis Burnside, LLC. In the course of litigation, Almatis, Inc. and Arthur Metals, Inc. were dismissed. Almatis Burnside, LLC changed its name to LAlumina, LLC before the incident at issue; thus, Almatis Burnside, LLC and LAlumina are one and the same.

4.   At the time Mr. Herbert was injured, Everest also insured LAlumina under Commercial General Liability Policy No. CC5GL00023191. The Commercial General Liability Policy is not at issue in this appeal.

5.   Everest also argued in its summary judgment motion that Part Two of the WC/EL policy excluded coverage for damages imposed by workers’ compensation law and “[d]amages arising out of coercion, criticism, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination against or termination of any employee, or any personnel practices, policies, acts[,] or omissions[.]” However, these arguments are not raised again on appeal. Additionally, we note that Plaintiffs are not seeking coverage under workers’ compensation law in the instant suit, nor are they seeking coverage for damages arising from coercion, criticism, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination against or termination of any employee, or any personnel practice, policy, act, or omission.

6.   The October 1, 2024 judgment contained language purportedly designating the trial court's ruling as final and appealable under La.C.C.P. art. 1915. However, because the judgment dismissed Plaintiffs’ claims against Everest, the judgment was final and appealable pursuant to La. C.C.P. art. 1915(A).

7.   On appeal, Plaintiffs contend the trial court erred in finding workers’ compensation was their exclusive remedy, and Everest and LAlumina request that we affirm said finding. However, as set forth above, the judgment on appeal does not contain said finding. Rather, the trial court's determination that workers’ compensation was Plaintiffs’ exclusive remedy is contained in the October 1, 2024 reasons for judgment issued in connection with the judgment on appeal. It is well-settled that as an appellate court, we review judgments, not reasons for judgment, and we may affirm a judgment for reasons other than those given by the trial court. See Walton v. State Farm Mutual Automobile Insurance Company, 2018-1510 (La.App. 1 Cir. 5/31/19), 277 So.3d 1193, 1199. Further, when conducting our de novo review of a summary judgment, we afford no deference to the trial court's underlying reasoning. See Schwehm v. Jones, 2003-0109 (La.App. 1 Cir. 2/23/04), 872 So.2d 1140, 1145; John River Cartage, Inc. v. Louisiana Generating, LLC, 2020-0162 (La.App. 1 Cir. 3/4/20), 300 So.3d 437, 453 n.12. Accordingly, the issue before us is not whether the trial court properly determined that workers’ compensation is Plaintiffs’ exclusive remedy, but rather, whether the trial court properly granted summary judgment in favor of Everest, denied partial summary judgment in favor of Plaintiffs, and dismissed Plaintiffs’ claims against Everest.

8.   The employer's liability portion of the WC/EL policy states that it “does not cover ․ [a]ny obligation imposed by a workers compensation, occupational disease, unemployment compensation, or disability benefits law, or any similar law[.]”

GREENE, J.

McClendon, C.J. dissents in part and agree in part for Reasons Assigned.