Roger v. Estate of Moulton

The primary issue in this case is whether or not there was a valid rejection of uninsured motorist (UM) coverage. The Court of Appeal found there was a valid rejection. We reverse.

The automobile liability policy was issued by Liberty Mutual Insurance Company (Liberty Mutual) to United Parcel Service (UPS). The appellate court found relevant a letter written in 1981 which the trial court had ruled was inadmissible. It also determined the letter constituted a valid rejection of UM coverage in Louisiana, when considered in pari materia with the policy and a previous 1974 letter which was statutorily ineffective as a rejection. Our threshhold concern is the sufficiency of the 1981 letter to effect a rejection of the UM coverage.

FACTS

This case arises out of a vehicular collision which occurred along Highway 333 in Vermilion Parish during a rain storm. Liability is not now at issue and we recite only those facts necessary for an understanding of the procedural posture.

On the morning of July 3, 1981, plaintiff Donald Roger was traveling south on Louisiana Highway 333 in a truck owned by his employer, UPS. At this same time, Tad Moulton and three passengers were in an automobile proceeding north on Highway 333. The four were returning home after a two week tour of duty on an offshore oil rig. As these two vehicles entered a curve in the highway, Moulton swerved his vehicle across the double yellow line of the highway, striking the front left side of the UPS truck. Tad Moulton died at the scene from injuries sustained in the collision. Donald Roger was seriously injured.

A third vehicle, a pickup truck owned by Pierce Enterprises, Inc. (Pierce) and driven by its employee, Owen Schexnyder (Schex-nyder), was also allegedly involved in the accident. Prior to the accident, Schexny-der, because of transmission failure, pulled onto the eastern shoulder of Highway 333 to attempt to effect repairs. Allegations were made that Moulton was forced to cross the highway’s centerline by the position of the pickup truck on the shoulder.

PROCEDURAL HISTORY

Three separate law suits were filed as a result of this accident. Initially, Roger filed suit against the Estate of Tad Moul-ton; Frank R. Moulton, Jr., administrator; and Maryland Casualty Company (Maryland), insurer of the vehicle owned by Frank Moulton. Roger later added as defendants Global Marine, Inc. (Global), who was Tad Moulton’s employer; Pierce, and its insurer, Maryland.

Liberty Mutual, in its capacity as workers’ compensation carrier for UPS, filed a separate suit against the Estate of Tad Moulton, Frank R. Moulton, Jr., and Maryland as Moulton’s insurer, seeking reimbursement for workers’ compensation benefits and medical expenses paid to Roger. Added later to this suit as defendants were Pierce, its insurer Maryland, and Global.

These two actions were consolidated, with Liberty Mutual being designated by stipulation as intervenor in Roger’s suit. Prior to trial, Roger settled his claims against the defendants named in his original suit and dismissed the suit with prejudice, reserving his right to proceed against Liberty Mutual as UM carrier for UPS.

Following this settlement, Roger filed a separate suit against Liberty Mutual in its capacity as UM carrier for UPS. He later added Liberty Mutual in this same capacity as a defendant in his original suit. His separate action against Liberty Mutual for UM benefits was also consolidated, and as consolidated, all three suits proceeded to trial.

After a four day trial of these consolidated suits, the trial court determined (1) the accident was caused solely by the negligence of Tad Moulton; (2) UPS had not rejected UM coverage in Louisiana, and therefore UM coverage was required to be provided in amounts equal to the liability limits of $200,000; (3) Roger had suffered $406,579.06 in damages; and, (4) Liberty Mutual was not entitled to recover from Maryland, Moulton’s liability insurer, the workers’ compensation benefits it paid to Roger.

The trial court allowed oral arguments on Liberty Mutual’s motion for a new trial, but rejected Liberty Mutual’s claim for reimbursement of Roger’s compensation benefits out of his judgment against Liberty Mutual based upon the UM coverage. The trial court did, however, acknowledge Liberty Mutual’s right as compensation carrier to sue itself.

Liberty Mutual both in its capacity as UM carrier and as workers’ compensation carrier appealed. On original hearing the Court of Appeal affirmed in part and reversed in part. It affirmed the trial court’s determination that the accident was solely the fault of Tad Moulton. It reversed the trial court’s finding of UM coverage, holding UPS had validly rejected the coverage in Louisiana.

COURT OF APPEAL OPINION

In reaching its conclusion, the Court of Appeal first concluded:

The Liberty [Mutual] policy, although issued and delivered outside the State of Louisiana, provides coverage for UPS trucks and other vehicles located in Louisiana. ... Under these circumstances ... insofar as such policy applies to UPS motor vehicles registered and principally garaged in the State of Louisiana, such policy was “issued for delivery in this state” and therefore, the provisions of La.R.S. 22:1406D(l)(a) apply.

In finding La.R.S. 22:1406(D)(l)(a) did mandate UM coverage, the Court of Appeal distinguished Snider v. Murray, 461 So.2d 1061 (La.1985). After concluding our law required UM coverage be provided, the Court of Appeal then determined UPS had validly rejected UM coverage in Louisiana based on a combined reading of the policy and the two letters.

The first letter dated January 2, 1974 was an express rejection of UM coverage in Louisiana. It is undisputed this letter was never physically attached to the original policy issued in 1974, or any subsequent renewals. Accordingly, it alone could not operate as a valid rejection of UM coverage under Stroud v. Liberty Mutual Insurance Co., 429 So.2d 492 (La.App. 3d Cir.1983), writ denied, 437 So.2d 1147 (La.1983).

The second letter dated March 2, 1981 had been excluded from evidence in the trial court on the grounds of relevancy. The letter was allowed to be offered as a proffer of proof. In choosing to consider the 1981 letter, the Court of Appeal found, “The trial court clearly erred in disallowing this evidence.” This letter in its entirety states:

In accordance with our standard procedure and instructions to Liberty Mutual please reject the Uninsured Motorist coverage in the state of Pennsylvania, effective March 1, 1981.

Since this is our standard practice, regarding Uninsured Motorists coverage in the event any other state changes their law or regulations to allow rejection of this coverage, please do so immediately on the earliest possible effective date.

Taking both letters into account, the Court of Appeal concluded:

Were it not for the letter of March 2, 1981, Stroud, supra, would dictate the result reached by the trial court. However, when the contents of this letter are considered together with the body of the other evidence presented, it is crystal clear that UPS validly rejected UM coverage under the 1981 policy.... (Emphasis added.)

On rehearing, the Court of Appeal reinstated its earlier opinion holding the 1981 letter was admissible and that there was a valid rejection of UM coverage by UPS. In addition, the court rejected arguments by Roger that the 1981 letter, standing alone, must be sufficient to reject UM coverage. The court reasoned:

Even if, arguendo, one would assume that the 1981 letter standing alone was insufficient to reject UM coverage, when the policy (which shows no UM coverage in Louisiana) and the two letters (1974 and 1981 documents) are considered in pari materia, the only conclusion which can be reached is that UPS validly rejected UM coverage in this state.

Roger applied for writs of certiorari and review asking us to consider the finding of a valid rejection of UM coverage. We granted writs on December 12, 1986. 498 So.2d 1 (La.1986).

VALIDITY OF REJECTION

Roger asserts initially the March 2, 1981 letter does not meet the statutory requisites for a valid rejection of UM coverage in Louisiana. He argues the Court of Appeal determination that the 1981 letter indicated a desire on the part of UPS to reject UM coverage in every state where possible is not sufficient, as their reliance on “intent” and “desire” to find such a rejection avoids the purpose and public policy behind requiring UM protection. He also urges this finding undermines the formal requirements of R.S. 22:1406(D)(l)(a).

The Louisiana UM statute, contained in R.S. 22:1406(D)(l)(a), provides the following:

(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.

In Louisiana, UM coverage is provided for by statute and embodies a strong public policy. A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981); Breaux v. Government Employees Ins. Co., 369 So.2d 1335 (La.1979). The object of the statute is to promote recovery of damages for innocent automobile accident victims by making UM coverage available for their benefit as primary protection when the tortfeasor is without insurance, and as additional or excess coverage when he is inadequately insured. Block v. Reliance Ins. Co., 433 So.2d 1040 (La.1983); Johnson v. Fireman's Fund Ins. Co., 425 So.2d 224 (La.1982). Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982).

To carry out this objective of providing reparation for those injured through no fault of their own, this Court has held the statute is to be liberally construed. Hoefly, supra. Thus, the requirement that there be UM coverage is an implied amendment of any automobile liability policy, even one which does not expressly address the subject matter, as UM coverage will be read into the policy unless validly rejected. A.I.U. Ins. Co., supra.

UM coverage is determined not only by contractual provisions, but also by applicable statutes. In the absence of a specific rule, general insurance law governs. A.I.U. Ins. Co., supra. The liberal construction given the UM statute requires the statutory exceptions to the coverage requirement be interpreted strictly. Any exclusion from coverage in an insurance policy must be clear and unmistakable. Dorsey v. Board of Trustees, State Employees Group Benefits Program, 482 So.2d 735 (La.App. 1st Cir.1985), writ denied, 486 So.2d 735 (La.1986); Landry v. La. Hosp. Service, Inc., 449 So.2d 584 (La.App. 1st Cir.1984); Stewart v. La. Farm Bureau Mutual Ins. Co., 420 So.2d 1217 (La.App. 3d Cir.1982). In accordance with this strict construction requirement, the intermediate courts have held the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Cheadle v. Francois, 470 So.2d 255 (La.App. 4th Cir.1985); Aramburo v. Travelers Ins. Co., 426 So.2d 260 (La.App. 4th Cir.1983), writ denied, 433 So.2d 161 (La.1983).

In addressing Roger’s contentions, we first note the question of whether or not R.S. 22:1406(D)(1)(a) mandates UM coverage in this instance. We agree with the Court of Appeal determination the holding in Snider, supra, does not control. In Snider we held R.S. 22:1406(D)(l)(a) should not be interpreted to require UM coverage, not otherwise provided, in a policy delivered elsewhere to insured vehicles registered and garaged elsewhere, simply because the named insured moved to Louisiana after issuance and during the term of the policy.

While Liberty Mutual’s policy was neither delivered nor issued for delivery in this state, it did provide coverage for vehicles registered, garaged and licensed in Louisiana. Because of the vital interest Louisiana has in the application of the UM statute as a matter of public policy, we hold Liberty Mutual’s policy, insofar as it applies to the vehicle in question, must provide UM coverage unless validly rejected.

Having found UM coverage is provided by the statute, we now consider whether or not the 1981 letter effected a valid rejection. Viewing this in light of the rules of construction which are accorded our UM statute, we conclude it did not. As stated in the case of Jordon v. Honea, 407 So.2d 503 (La.App. 1st Cir.1981), writ denied, 409 So.2d 654 (La.1982):

[The] expression of a desire not to have UM coverage, however clear, does not necessarily constitute a valid rejection if the expression of rejection does not meet the formal requirements of law. Under Louisiana law, uninsured motorist coverage is provided for by statute and embodies a strong public policy. 407 So.2d 503, 506.

In order to have a valid rejection, the rejection must be in writing, and signed by the “named insured” or his “legal representative.” R.S. 22:1406(D)(l)(a). Cheadle, supra; Duhe v. Maryland Cas. Co., 434 So.2d 1193 (La.App. 1st Cir.1983). Though the 1981 letter obviously is a writing, it does not suffice as a rejection for other reasons.

The first paragraph of the 1981 letter is an obvious statement of UPS’s rejection of UM coverage in Pennsylvania. The second paragraph, however, on which Liberty Mutual must rely cannot effect rejection of this coverage in Louisiana. It does not satisfy our formal requirements which must be met for exclusion of coverage. The language is prospective in nature. There were no changes in Louisiana law after March 2, 1981, the effective date of the letter, which would allow rejection of UM coverage in this state. Although changes to the UM statute were made in 1977, these amendments did not alter the substantive right to reject UM coverage. That right had existed previously. Rather, the amendment clarified the law as regards the form of rejection or selection of lower limits. For the first time the statute contained a requirement that a rejection or selection of lower limits must be in writing. A.I.U. Ins. Co., supra. Additionally, the document rejecting the coverage or selecting lower limits was presumed to be a part of the policy “irrespective of whether physically attached hereto.” UPS could have rejected UM coverage in 1974 when the policy under consideration was first written and issued by Liberty Mutual. This being so, it is obvious the March 2, 1981 letter could not have pertained to Louisiana when it stated “in the event any other state changes their law ... to allow rejection ..., please do so immediately on the earliest possible effective date.” Such imprecise and prospective language falls far short of meeting the strict requirements of our law. Public policy, legislative intent, and strict statutory interpretation of exceptions to coverage, all require clear, unmistakable rejection. We do not find it in this instance.

Plaintiff also challenges the Court of Appeal’s consideration of the 1974 letter in conjunction with the 1981 letter to find that “UPS ... desired to reject UM coverage in Louisiana.” Essentially, the Court of Appeal allowed the insufficient 1981 rejection to ratify the ineffective 1974 rejection. It acknowledged the 1974 letter was ineffective because it was not attached to UPS’ policy as required by law in effect at the time. Though ineffective, the court allowed the 1981 letter to ratify or breathe new life into the otherwise ineffective 1974 rejection. The court’s “in pari materia” reading of these two documents in order to find a valid rejection resulted in error premised upon the “intent” of the insured.

A letter rejecting UM coverage in Louisiana written prior to September 9, 1977, the effective date of Act 438 of 1977, which did not comply with the existing formalities under La.R.S. 22:628 is totally void of any legal effect as a valid rejection of UM coverage in this state. Stroud, supra.

The law imposes UM coverage in this state notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment. Alexander v. Allstate Ins. Co., 493 So.2d 677 (La.App. 2d Cir. 1986). Accordingly, to effect a valid rejection of the UM coverage under La.R.S. 22:1406(D)(1)(a), the insured or his authorized representative must expressly set forth in a single document that UM coverage is rejected in the State of Louisiana as of a specific date in a particular policy issued or to be issued by the insurer. A writing, regardless of the intention of the insured, of a less precise nature is insufficient to effect a valid rejection. This narrow reading of La.R.S. 22:1406(D)(1)(a) is in accord with the liberal construction afforded the uninsured motorist statute in order to carry out its objective of protecting an innocent insured who becomes the victim of the negligent uninsured or underinsured motorist. Hoefly, supra. In the present case, only the letter written in 1981 may be considered to find a valid rejection of UM coverage by UPS. This letter simply was not an express rejection as required by law.

The plaintiff also attacks the validity of the 1981 letter as a rejection of UM coverage because it was not executed prior to the effective date of the policy and because it allegedly was not executed by an authorized legal representative of the insured corporation. In addition, Roger asserts the 1981 letter should have been ruled inadmissible. Having concluded that the 1981 letter was not an express rejection of UM coverage, we pretermit discussion of other assigned errors arguing against the letter’s validity as a rejection and its admissibility.

PRESCRIPTION

We now consider the plea of prescription advanced by Liberty Mutual in its capacity as UM carrier for UPS. Liberty Mutual asserts even if UPS did not validly reject UM coverage, Roger’s action for UM coverage prescribed because it was filed more than two years after the date of the accident in which the damage was sustained. La.R.S. 9:5629.

Roger was injured on July 3, 1981. Unless prescription was interrupted as to his UM claim by the filing of his original suit on June 19, 1982, or by Liberty Mutual’s suit for recovery of compensation benefits filed July 2, 1982, his action for UM coverage prescribed on July 3, 1983. Roger maintains the filing of either of these suits was sufficient to interrupt prescription.

In order to fully appreciate and understand this issue, it is necessary to delineate the procedural steps leading to the trial. Roger instituted his initial suit against the Estate of Tad Moulton, Frank R. Moulton, Jr. (administrator of the estate) and Maryland Casualty Company (Maryland). This suit was filed timely on June 19, 1982, and bears docket number 82-44653-H of the Fifteenth Judicial District Court. Later amendments to the suit added Tad Moul-ton’s employer, Global Marine, Inc. (Global), Pierce Enterprises, Inc. (Pierce) and its insurer, Maryland as defendants.

In the meantime, on July 2, 1982, in a separate suit, bearing docket number 82-44730-G, Liberty Mutual, the workers’ compensation carrier for UPS, filed suit against the Succession of Thaddeus R. Moulton and Maryland for sums paid and to be paid to Roger for workers’ compensation benefits. Through two supplemental and amended petitions, Liberty Mutual added Pierce, Pierce’s insurer (Maryland), and Global as defendants.

By order of court dated April 7, 1983, suit No. 84-44730-G was consolidated with the earlier suit filed by Roger, and Liberty Mutual was designated as “intervenor” in the earlier suit.

On October 31, 1983, Roger settled his claims against the Estate of Thaddeus Moulton, Frank R. Moulton, Jr., Global Marine, and Maryland (Moulton’s insurer). Accordingly, a “Restricted Motion and Order of Dismissal” was filed, releasing the above defendants, but expressly reserving relator’s rights against any and all uninsured motorist carriers. Likewise, on December 14, 1983, Roger settled his claims against Pierce and its insurer, Maryland, and dismissed these defendants, expressly reserving his rights to proceed against Liberty Mutual as the uninsured motorist carrier of UPS.

Following Roger’s dismissal of Pierce and Maryland, the claims remaining under docket number 82-44653-H consisted of Liberty Mutual’s intervention for workers’ compensation benefits against the Succession of Thaddeus Moulton, Maryland (Moul-ton’s insurer), Pierce, Maryland (Pierce’s insurer) and Global.

While these claims were pending, Roger filed a separate suit against Liberty Mutual in its capacity as uninsured motorist carrier for UPS seeking recovery of benefits under the uninsured motorists provisions of the UPS liability policy. This suit, filed January 17, 1984, bears docket number 84-47463-A of the Fifteenth Judicial District Court.

In February 1984, Roger also filed an Amended Petition in suit number 82-44653-H, adding Liberty Mutual as a defendant in that suit, and seeking recovery of uninsured motorists benefits.

UPS and Liberty Mutual subsequently intervened in suit number 84-47463-A, seeking subrogation to Roger’s rights against Liberty Mutual as uninsured motorist carrier for UPS. (In effect, Liberty Mutual sued itself.)

On May 16, 1984, suit number 84-47463-A was consolidated with suit number 82-44653-H, and all three cases were eventually set for trial.

It is important to note as regards this trial and the procedural steps preceed-ing it, from the time of the plaintiff’s original suit, the- auto accident and the negligence of the driver, Tad Moulton, was always the underlying cause of action at issue and continued to be the major issue litigated by the remaining parties at the trial, including Liberty Mutual.

We have held a plaintiff’s timely and properly filed law suit against a tort feasor interrupts prescription as to the uninsured motorist carrier. Hoefly, supra. Thus, even though Liberty Mutual was not named as a defendant in Roger’s original suit, prescription as to the UM claim was interrupted.

As a general rule, if prescription is interrupted, time that has run prior to the interruption is not counted. Prescription commences to run anew from the last day of the interruption. La.Civ.Code art. 3466. An interruption of prescription resulting from the proper filing of a suit continues so long as the suit is pending. La.Civ.Code art. 3463.

Liberty Mutual, in support of its plea of prescription, points to the last sentence of art. 3463.

Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit at the trial. La.Civ.Code art. 3463 (1982).

This phrase, formerly art. 3519, constitutes an exception to the general rules regarding interruption of prescription. Liberty Mutual argues art. 3463 serves to nullify the interruption of prescription effected by the filing of Roger’s original suit because prior to trial, Roger had settled and voluntarily dismissed his claims against all defendants named in his original action.

In Hebert v. Cournoyer Oldsmobile-Cadillac GMC, Inc., 419 So.2d 878 (La.1982), we held La.Civ.Code art. 3519 (now art. 3463) does not apply after the defendant has made a general appearance, because after the defendant answers the trial court is vested with the discretion to dismiss the suit with prejudice. La.Code Civ.P. art. 1671. To maintain Liberty Mutual’s plea of prescription, Roger must have voluntarily dismissed his claims prior to defendants making a general appearance.

In this instance, prior to dismissal, all original defendants had made general appearances by filing a pleading or other entry into the case. La.Code Civ.P. art. 7. Accordingly, the last sentence of art. 3463 does not apply.

In addition, Liberty Mutual’s suit for compensation reimbursement against the Estate of Tad Moulton and others filed July 2, 1982 served to continuously interrupt prescription on Roger’s claims arising out of the accident. In Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983), we answered a similar question certified to us by the United States Court of Appeal, Fifth Circuit, and said, “When an employer’s compensation insurer files suit to recover compensation benefits paid to an injured employee and thereby interrupts prescription on the employee’s claim arising from the same cause of action, prescription is continuously interrupted during the pendency of the insurer’s suit.” Louviere, supra, at 98. As we noted above, the cause of action in all three suits arose out of the same automobile accident and addressed the negligence of Tad Moulton.

Accordingly, under our holdings in Hebert and Louviere, supra, we find Roger’s suit against Liberty Mutual as UM carrier for UPS to have been timely filed.

INTERYENOR

Liberty Mutual, intervenor, filed an original brief in this matter in its capacity as workers’ compensation carrier for UPS. In brief, Liberty Mutual renews its claim to be reimbursed for compensation benefits it has paid to Donald Roger out of any judgment he obtains against Liberty Mutual as UM carrier for UPS. Liberty Mutual asks this court, in the event we reinstate the trial court’s UM judgment, to remand for an evidentiary hearing to determine the precise amount of compensation reimbursement owed.

As compensation carrier, Liberty Mutual initially filed a separate suit for reimbursement. This suit was consolidated for trial with those suits filed by Roger. The trial court acknowledged Liberty Mutual’s right to seek reimbursement from an employer’s UM carrier, but rejected the claim under the express terms of Liberty Mutual’s policy which provided, “Any amount payable under UNINSURED MOTORISTS INSURANCE shall not be reduced by any sums paid or payable under any workers’ compensation law.” The court also felt because the policy limits were far below the court’s award, a reduction of plaintiff's award would impose the cost of compensation upon the employee.

The Court of Appeal, after concluding UPS had validly rejected UM coverage in Louisiana, found it unnecessary to consider Liberty Mutual’s claim for reimbursement as it had been rendered moot.

We have recognized the right of an employer’s workers’ compensation carrier to seek reimbursement from UM coverage paid for by the employer. Johnson, supra. In Johnson we held that allowing the compensation carrier to be reimbursed for benefits paid to an employee from the employer’s UM carrier does not violate the statutory rule prohibiting compensation reimbursement out of UM coverage purchased by the injured employee. Thus, if Liberty Mutual’s claim for reimbursement is properly before us, remand might be required for proper determination of the amount of reimbursement owed.

In a Motion to Strike Brief and Memorandum in Support thereof filed on behalf of Roger, it is argued that Liberty Mutual, as compensation carrier, did not apply for certiorari and therefore its claim for reimbursement is not properly before this court. We agree with plaintiff.

It is the long standing policy of this court that a judgment will not be amended by this court to benefit a party who did not apply for certiorari. Seals v. Morris, 423 So.2d 652 (La.App. 1st Cir.1982). Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). The judgment of the Court of Appeal finding a valid rejection of UM coverage by UPS was clearly adverse to Liberty Mutual’s claim for compensation reimbursement. When an adverse judgment is rendered by the Court of Appeal, that judgment becomes final unless timely application for certiorari is filed. La.Code Civ.P. art. 2166. Only Donald Roger applied for certiorari. Liberty Mutual as compensation carrier did not seek writs. Having failed to do so, the judgment of the Court of Appeal as to Liberty Mutual’s claim for reimbursement is now final. Accordingly, we need not consider it.

DECREE

Accordingly, the judgment of the Court of Appeal is reversed and the judgment of the trial court is reinstated. Liberty Mutual is to bear all costs of court.

REVERSED.

MARCUS, J., dissents and assigns reasons.

LEMMON, J., dissents and will assign reasons.

. 494 So.2d 1226 (La.App. 3d Cir.1986).