Opinion
No. 3928.
May 10, 1972. On Rehearing October 27, 1972. Rehearing Denied December 6, 1972.
Appeal from the 15th Judicial District Court, Parish of Lafayette, Lucien C. Bertrand, Jr., J.
Reuter, Reuter Schott, by Patrick Schott, New Orleans, for defendant-appellant-appellee.
Dodd, Hirsch, Barker, Avant Wall, by James D. Thomas, II, Baton Rouge, for defendant-appellee-appellant.
William E. Logan, Jr., Lafayette, for plaintiff-appellee.
Roderick L. Miller, Lafayette, for defendant-appellee.
Before FRUGÉ, HOOD, and CULPEPPER, JJ.
ON MOTION TO DISMISS SUSPENSIVE APPEAL
Plaintiff-appellee, McDowell Well Service, Inc., has made this motion to dismiss the suspensive appeal of defendants-appellants contending that the suspensive appeal was not filed timely.
Judgment was rendered in this case on the 27th of September, 1971. A motion for a new trial was made and that motion was taken under advisement by the trial judge. This motion was denied on January 20, 1972. The denial of the new trial was made in the record by minute entry on January 20, 1972. There is no requirement that an order denying a motion for a new trial be made in writing. It is merely sufficient that it be made as a minute entry. Simon v. Lumbermens Mutual Casualty Company, 138 So.2d 465 (La.App. 3rd Cir., 1962). It is irrelevant that a formal judgment was not signed until March 2, 1972.
The period for taking the suspensive appeal began to run after the denial of the new trial on January 20, 1972. Apparently, this is not a case in which appellants can avail themselves of the notice provision of LSA-C.C.P. Article 1914. There is no written request for notice in the record. In any event where notice is required, the period for appeal begins upon the date of mailing of the notice. LSA-C.C.P. Article 1914; Article 2123. The copy of the notice offered by the appellant indicates it was mailed on January 20, 1972. Hence, appellants' argument that time began when he received notice on February 16, 1972, is unfounded.
It is clear from the record that the suspensive appeal was not filed for timely. The suspensive appeal must be dismissed; however, the appeal will be considered as a devolutive one. Jackson v. Hannie, 225 So.2d 385 (La.App. 3rd Cir., 1969).
For the foregoing reasons, the suspensive appeal is dismissed. The costs to await the final outcome of the devolutive appeal.
Dismissed.
On Rehearing
McDowell Well Service, Inc., instituted this suit to recover the amount of an alleged overpayment of insurance premiums. The defendants are Casualty Insurance Company of California (the insurer); Gray and Company, Inc. (the insurer's general agent); and Carl Hurst Agency, Inc. (the producing agent).
Casualty and Gray answered, denying that there had been an overpayment of premiums, and they reconvened seeking to recover from plaintiff additional premiums alleged to be due. They also filed a third party demand against Hurst, asserting that a part of the debt claimed in the reconventional demand was owed by Hurst.
Judgment was rendered by the trial court in favor of plaintiff against all of the defendants. Casualty and Gray appealed suspensively from that judgment. Hurst did not appeal.
After the record was lodged in this court, plaintiff McDowell filed a motion to dismiss the suspensive appeals taken by Casualty and Gray, alleging as grounds therefor that the appeals were not timely perfected. We rendered judgment on May 10, 1972, dismissing the suspensive appeals taken by both of said defendants, but decreeing that they were valid as devolutive appeals. We subsequently granted rehearings to enable us to review and reconsider that judgment.
The motions to dismiss the suspensive appeals were argued before us on rehearing at the same time the case was argued on its merits. The matter is before us at this time to review on rehearing our earlier judgment dismissing the suspensive appeals, and to consider and decide the case on its merits.
On Motion to Dismiss Appeals
The judgment appealed from was signed by the trial court on September 27, 1971. Defendants, Casualty and Gray, timely filed motions for a new trial. These motions were taken under advisement, and the minutes of the court indicate that both motions were denied by oral order of the trial court on January 20, 1972. A formal decree denying the application for a new trial was signed by the trial judge on March 2, 1972, and the record shows that formal notices of the signing of that order were served on each counsel of record within a few days thereafter.
Defendant Gray was granted a suspensive appeal by order of the trial court dated March 2, 1972. Casualty Insurance Company was granted a suspensive appeal by order signed on March 21, 1972.
We held in our earlier judgment that an order or judgment denying a motion for new trial need not be made in writing, and that under the circumstances presented in this case LSA-C.C.P. art. 1914 did not require that notices of the judgment rendered on January 20, 1972, denying motions for a new trial, be mailed to the parties. We concluded that the period allowed for taking a suspensive appeal began to run after the denial of a new trial on the above mentioned date, January 20, and that defendants' motions for suspensive appeals were not timely filed. We rendered judgment, therefore, dismissing the suspensive appeals taken by defendants, but recognizing them as devolutive appeals.
The first three paragraphs of Article 1914 of the Louisiana Code of Civil Procedure provide:
"When a case has been taken under advisement by the court for the purpose of deciding whether an interlocutory order or judgment should be rendered, the clerk shall make an entry in the minutes of the court of any such interlocutory order or judgment rendered thereafter.
"If a written request for notice of the rendition of the interlocutory order or judgment in such a case has been filed, the clerk shall mail notice thereof to the party requesting it; and the latter shall have ten days from the date of the mailing of the notice to take any action or file any pleadings he deems necessary, except as provided in the next paragraph.
"If the interlocutory order or judgment is one refusing to grant a new trial, the delay for appealing commences to run only from the date of the mailing of such notice, as provided in Articles 2087 and 2123."
Appellants rely on the third paragraph of that article. They argue that in all cases where a motion for new trial is filed and denied, the delay for appealing commences to run only from the date of the mailing of a notice of the judgment refusing to grant the new trial. They interpret the article as requiring that notice of the rendition of an order or judgment refusing to grant a new trial be given in every case.
We feel that the cited article requires the mailing of a notice of the rendition of a judgment refusing to grant a new trial only in a case where a written request for such a notice has been filed. We believe that the third paragraph of Article 1914 must be construed with the second or preceding paragraph of that article, and that the delays set out in the third paragraph apply only in cases where "a written request for notice of the rendition of the interlocutory order or judgment in such a case has been filed." No such request was filed in the instant suit, and the delays for appealing thus commenced to run from and after the rendition of judgment refusing to grant a new trial on January 20, 1972. The appellants obviously did not apply for a suspensive appeal timely, and their appeals must be dismissed insofar as they purport to suspend the execution of the judgment.
In view of the conclusions which we have reached as to this issue, it is unnecessary for us to consider the effect of a written notice of the rendering of the January 20, 1972, judgment refusing to grant a new trial, which notice was mailed to counsel for Gray and received by him on February 16, 1972. It is also unnecessary for us to consider the effect of the formal notices of the signing of the March 2 decree, refusing to grant a new trial, one of which notices was served on counsel for Gray on March 13, 1972, and another such notice was served on counsel for Casualty on March 6, 1972.
We reinstate the judgment which we rendered on May 10, 1972, dismissing the suspensive appeals taken by defendants Gray and Casualty, but decreeing that the appeals are valid as devolutive appeals, and that they will be considered and treated as such.
On the Merits
The sole issue presented on the merits is whether the premium due on the policy which Casualty issued to plaintiff should be based on the full payroll of the insured, McDowell, or whether it should be based on a limited payroll, as set out in a manual referred to in the policy. A resolution of that issue requires an interpretation of some of the provisions of the policy.
Plaintiff, McDowell Well Service, Inc., was engaged in the business of drilling and reworking oil wells in 1965 and 1966. It owned a drilling barge which it used in conducting its business operations in inland waters in Louisiana.
In December, 1965, Willard Barnes, president of plaintiff company, contacted Carl Hurst Agency, Inc., an insurance agency, to obtain workmen's compensation insurance coverage. At that time Barnes made it clear to Hurst that plaintiff did not want to pay premiums in excess of those which it was paying at that time under another workmen's compensation policy issued by a different insurer. The premiums which plaintiff was paying then were not based on the full payroll of plaintiff company, but instead were based on a limited payroll, that is, a payroll which was limited (solely for the purpose of computing the premiums due) to a maximum of $100.00 per week, or $5200.00 per year, per employee.
Hurst contacted Gray and Company, Inc., a general agent, who made an examination of plaintiff's records and then, as general agent for Casualty Insurance Company of California, wrote or issued a policy of insurance for and in behalf of that insurer to plaintiff. The policy was countersigned by Gray and Company, Inc., as the authorized representative of Casualty.
The policy was issued on December 7, 1965, and it provided coverage for a term beginning on December 7, 1965, and ending on December 7, 1966. It was written on a form designated as a "Standard Workmen's Compensation and Employer's Liability Policy," and in that contract the insurer, Casualty Insurance Company, agreed to pay all compensation and other benefits required of plaintiff under the Louisiana Workmen's Compensation Laws. Attached to the policy were three endorsements providing coverage of risks compensable under the Longshoremen's and Harbor Workers' Compensation Act, the Outer Continental Shelf Lands Act and the Jones Act.
In Item 4, appearing on the first page of the policy, there are provisions indicating that the "Premium Basis" is the "Estimated Total Annual Remuneration." And, the estimated total annual remuneration is listed in the policy as being $2400.00 for clerical-office employees, and $75,000.00 for all other employees. The "Total Estimated Annual Premium" is listed as being $19,006.80.
The policy, however, contains the following additional provisions relating to the manner in which premiums are to be computed:
"When used as a premium basis, `remuneration' means the entire remuneration, computed in accordance with the manuals in use by the company, earned during the policy period . . .
"The premium stated in the declarations is an estimated premium only. Upon termination of this policy, the earned premium shall be computed in accordance with the rules, rates, rating plans, premiums and minimum premiums applicable to this insurance in accordance with the manuals in use by the company . . ." (Emphasis added.)
The evidence shows that the "manual in use by the company," is one entitled "The Basic Manual of Rules, Classifications and Rates for Workmen's Compensation and Employers' Liability Insurance," issued by the National Council on Compensation Insurance. This manual, issued by the National Council on a nation-wide basis, is used generally by the insurance industry throughout this country. It contains a section relating to premium rates for Louisiana Workmen's Compensation policies. Section VI(d) of the Louisiana section of that manual provides, in part, that:
". . . there shall be excluded from the remuneration upon which the premium for the policy is based that part of the remuneration of each such employee which is in excess of an average weekly remuneration of $100 per week." (Emphasis added.)
While the policy was in effect plaintiff's secretary submitted to Hurst each month a report showing the amount of the payroll for the preceding month. The premium due on the policy for that month was computed from that payroll report, and the amount due as the premium for that month was paid. In each of these monthly reports the secretary reported a maximum of $100.00 per week, or $5200.00 per year, for each employee. Plaintiff paid the aggregate sum of $29,056.74 as premiums due on the policy.
In April, 1967, Casualty Insurance Company had an audit made of plaintiff's payroll, which audit showed a total earned premium for the entire year of $31,682.79, with a credit of $29,056.74 paid, leaving an additional premium of $2,626.05 due by plaintiff. Defendant Hurst sent a copy of this audit to plaintiff, with a bill for the additional premium alleged to be due. In that audit the premium was computed on the basis of plaintiff's full or entire payroll.
McDowell immediately complained that the audit was incorrect, and following that complaint its records were re-audited, based upon a limited payroll of $100.00 per week for each employee. The second audit showed a total earned premium of $22,979.00 due, with a credit of $29,056.00 paid, leaving a return premium of $6,076.00 due the insured McDowell.
Following this second audit, defendants returned the sum of $4,397.70 to plaintiff as a partial refund of premiums. Plaintiff thereafter instituted this suit against Casualty, Gray and Hurst to recover the balance alleged to be due as a refund of the premiums which it had paid. Defendants answered, resisting plaintiff's demands on the ground that the policy provides that premiums are to be computed on the full payroll of plaintiff, and not on a limited payroll. They contend that they erred in making a partial refund to plaintiff, and they have reconvened to recover from plaintiff the additional premiums alleged to be due by it under the policy.
The parties have stipulated that McDowell's books and records were maintained so as to show separately by employee, and in summary by class of work, the total remuneration earned by each employee. They have agreed that if the basis of the premium is to a limited payroll, that is, a maximum of $100.00 per week for each employee, then McDowell is entitled to recover $3,133.28 from defendants. If it is determined, however, that the premium basis is the total annual remuneration, then Gray and Casualty are entitled to recover the aggregate sum of $6,708.28.
The trial judge concluded that under the provisions of the insurance contract the premium was to be computed on a limited payroll basis, that is, on a limitation of $100.00 per week per employee, and that plaintiff thus is entitled to a refund of the excess premium paid by it. Judgment accordingly was rendered in favor of plaintiff and against defendants for the stipulated sum of $3,133.28.
We agree with the trial judge that under the provisions of the policy issued by Casualty to plaintiff, the premium must be computed on a limited payroll basis, that is, on a limitation of $100.00 per week per employee. We do not interpret Item 4, appearing on the first page of the policy, as providing that premiums must be based on the full payroll of the insured. The term "Total Annual Remuneration," as used in Item 4, must be construed with the other above quoted provisions of the policy. The quoted provisions stipulate, partly by reference to a manual of rates, that the "remuneration" which serves as the premium basis is to be computed by using a limited payroll, that is, a limit of $100.00 per week per employee.
Plaintiffs introduced some parol evidence which tends to show that agents or representatives of the parties agreed orally prior to and at the time the policy was issued that the premium was to be based on a limited payroll. Defendants argue that this parol evidence should not be considered since it tends to alter the terms of the contract and there have been no allegations of fraud or error.
We have not considered these arguments relating to parol evidence, because we think the provisions of the policy alone are sufficient to support plaintiff's demands. We believe that the parol evidence which was offered to identify the "manuals in use by the company" is admissible. It is unnecessary for us to rely on parol evidence even for that purpose, however, because the parties apparently agree that the manual in use by the company is "The Basic Manual of Rules, Classifications and Rates for Workmen's Compensation and Employers' Liability Insurance," issued by the National Council on Compensation Insurance.
Defendants contend, finally, that the "manuals in use by the company" (Basic Manual of Rules, Classifications and Rates for Workmen's Compensation and Employers' Liability Insurance) cannot be applied here to require that the premium basis be determined by the use of a limited payroll. They argue that that manual relates only to policies providing protection against claims under the Louisiana Workmen's Compensation Act, whereas the policy involved in this suit includes protection against claims under the Federal Maritime Law.
We have pointed out that there are three endorsements attached to the policy providing coverage under the Longshoremen's and Harbor Workers' Compensation Act, the Jones Act and the Outer Continental Shelf Lands Act.
The endorsement providing coverage under the Longshoremen's and Harbor Workers' Compensation Act contains the provision "Percentage of Increase-Non-F-Rates-100%." The other endorsements contain no provisions relating to rates, but they do provide, in effect, that nothing in those endorsements shall vary, alter or extend any other provisions of the policy.
The evidence indicates that the work performed by plaintiff was of such a nature that exposure under the Federal Maritime Law was greater than its exposure under the Louisiana Workmen's Compensation Act. Defendant argues, therefore, that the policy was intended primarily to cover risks against federal statutes and maritime law, and that the provisions of the "Basic Manual" on compensation insurance thus does not apply.
Regardless of the nature of the risks which are covered by the policy, the defendant insurer chose to issue to plaintiff a "Standard Workmen's Compensation and Employer's Liability Policy." The premium rates provided in the policy are those specified for "Louisiana" under the above mentioned "Basic Manual." For reasons which we have already pointed out, we do not feel that Item 4, on page one of the policy, can be isolated from other provisions of the contract and interpreted as meaning that the premium is to be based on the full payroll of the insured. We think the policy provides that the premium is to be based on a "limited payroll," and the endorsements attached to it do not provide for any other method of computing the premiums.
We agree with the trial judge that the premium due on the policy at issue here must be computed on the limited payroll basis, that is, a limit of $100.00 per week per employee.
The judgment appealed from is affirmed. The costs of this appeal are assessed to defendants-appellants.
Affirmed.