
    Joseph Adam LEDET, et ux., v. SEASAFE, INC., et al.
    No. W00-1205.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2001.
    Writ Denied June 1, 2001.
    
      Owen W. Joyner, Attorney at Law, Me-tairie, LA, Counsel for Intevenor/Respon-dent: Continental Casualty Company Manpower Services.
    Martin Edward Golden, Kantrow, Spaht, Weaver, et al., Baton Rouge, LA, Counsel for Defendant/Relator: Seasafe, Inc.
    Kent Mercier, Attorney at Law, Lafayette, LA, Counsel for Plaintiffs: Jospeh Adam Ledet, Margie Lou Ledet.
    Court composed of DOUCET, C.J., THIBODEAUX, and WOODARD, Judges.
   I,WOODARD, Judge.

Mr. Joseph and Ms. Margie Ledet filed suit against his direct employer, Manpower Temporary Service (Manpower), and his statutory employer, Seasafe, Inc. (Sea-safe), alleging that Mr. Ledet suffered injuries because of an intentional tort. Continental Casualty Company (Continental), Manpower’s workers’ compensation insurer, paid him workers’ compensation benefits for his injuries and intervened in his suit, asking for reimbursement, from Sea-safe, for benefits it had paid. In turn, Seasafe filed a motion for summary judgment, seeking to dismiss Continental’s intervention, as it could not be considered to be a “third person” under La.R.S. 23:1101 since it was Mr. Ledet’s statutory employer. When the trial court denied the motion, Seasafe applied for a writ of review in this case. We converted the writ to an ordinary appeal. We affirm the trial court’s decision and deny Seasafe’s writ application.

:¡í # * * *

On March 3, 1995, the Ledets filed suit against Seasafe and Manpower, alleging that Mr. Ledet had been the victim of an intentional tort. Manpower had directly employed him beginning September 25, 1991 and assigned him to work at Seasafe as a temporary general laborer, along with its permanent employees. Specifically, he asserted that the toxic chemicals and resins, used in the manufacturing process at Seasafe, had injured him.

He ceased his employment about March 31, 1994 and made claims for workers’ compensation benefits, which Manpower and its workers’ compensation insurer, Continental, paid from that date. After he filed his suit against Seasafe, Continental intervened and sought to recover all the workers’ compensation benefits it had paid to him. Seasafe filed a motion for summary judgment against Continental, contending that it could not intervene to recover the benefits it had paid, as Seasafe was Mr. Ledet’s statutory employer.

The trial court denied Seasafe’s motion without reasons. Seasafe filed an application for writs, requesting this court to reverse the trial court’s decision. Upon review, we converted the writ application into an ordinary appeal and offered the parties an opportunity to submit additional briefs.

la* * * * *

Appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.

La.Code Civ.P. art. 966 charges the moving party with the burden of proving that summary judgment is appropriate. In doing so, its supporting documentation must be sufficient to establish that no genuine issue of material fact remains to be decided. Once the mover makes a prima facie showing that there is no genuine issue as to a material fact and that summary judgment should be granted, the burden shifts to the nonmover. Furthermore, La.Code Civ.P. art. 967 provides, in pertinent part:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his responses by affidavits or otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

In summary, the threshold question in reviewing a trial court’s summary judgment is whether a genuine issue of material fact remains. After which, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Thus, summary judgment is apropos when all 13relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts.

Facts are material if they determine the outcome of the legal dispute. The determination of the materiality of a particular fact must be made in light of the relevant substantive law. If no material fact is in dispute, only a legal issue is presented.

Seasafe urges that, because of its statutory employer status, Continental has no right to seek reimbursement from it for compensation benefits which Continental paid. Continental counters that it does have that right under La.R.S. 23:1101(B)’s definition. of a “third person” definition.

This controversy appears to present a res nova issue. Namely, may the direct employer’s workers’ compensation insurer (Continental) intervene to recover, from a statutory employer, who has been sued for allegedly committing an intentional tort, benefits the insurer had paid?

There are two applicable statutes, La. R.S. 23:1032 and La.R.S. 23:1101. La.R.S. 23:1101 states:

A.When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as “third person”) other than those persons against whom the said employee’s rights and remedies are limited in R.S. 23:1032, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.
B. Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit \iagainst such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents. The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person and, where the recovery of the employee is decreased as a result of comparative negligence, the recovery of the person who has paid compensation or has become obligated to pay compensation shall be reduced by the same percentage.
C. For purposes of this Section, “third person” shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury.
D. (1) Any suit against a third person to recover amounts paid or obligated to be paid under the provisions of this Chapter or any intervention in an action against a third person involving an employee who has received or is receiving benefits under this Chapter seeking reimbursement or credit for benefits paid or obligated to be paid under this Chapter shall be tried before a district court judge only.
(2) No suit brought under this Sub-part or incidental action seeking reimbursement of amounts paid shall be allowed in a pending action involving a trial before a jury; however, such a suit or incidental action seeking such reimbursement may be tried before the judge involved in the jury trial but outside the presence of the jury.

(Emphasis added.)

Under La.R.S. 23:1032, those persons against whom workers’ compensation is the employee’s exclusive remedy are the claimant’s employer; co-employees; principal; principal employer; partner, or employee of such employer; director; or stockholders of the employer or the principal. Normally, such persons cannot be considered to be a “third person” under La.R.S. 23:1101. However, because this is an intentional tort suit, La.R.S. 23:1032’s exclusivity provisions do not limit Mr. Le-det’s rights and remedies. Accordingly, we see no reason why Seasafe should not be treated as a “third person” and, thus, why Continental should not have the right to pursue its intervention.

Furthermore, there are strong public policy considerations which support this result. Mr. Ledet may enjoy a double recovery if we do not permit the intervention to proceed. More significantly, our law should encourage the recovery of workers’ | ^compensation benefits from those parties directly responsible for the injuries in order to lower the overall costs for workers’ compensation insurance and further the goal of liberal payment of compensation benefits. Last, as a practical matter, there is little, if any, prejudice of such a decision on Seasafe. Assuming that it is obligated to pay damages for the intentional tort, whether it pays all of them to Mr. Ledet or a portion to Continental, the total amount, which it, ultimately, must pay for Mr. Ledet’s injuries is unchanged.

Accordingly, we affirm the trial court’s dismissal of Seasafe’s summary judgment motion against Continental.

CONCLUSION

We hold that Seasafe is a “third person,” pursuant to La.R.S. 23:1101, for purposes of Continental’s intervention and affirm the trial court’s decision; therefore, denying Seasafe’s writ application. We cast Seasafe with the costs.

WRIT DENIED.

DOUCET, C.J., concurs.

WOODARD, J., concurs and assigns written reasons.

hDOUCET, C.J.,

concurring.

| WOODARD, J.,

concurring.

Footnoting court opinions — an odd topic to trigger a concurring opinion, particularly since it was not an issue which the parties or the opinion addressed. Notwithstanding, since Chief Judge Doucet has found it fit to place, what amounts to, his stylistic preference for legal opinion writing at issue in this public forum, fairness dictates that his comments be addressed in a similar fashion.

Specifically, rather than focusing on the merits of the opinion, Chief Judge Dou-cet’s sole reason for concurring lies in his objection to the use of citational footnotes in the instant opinion. Surprisingly, albeit having used citational footnotes in his own legal opinions, Chief Judge Doucet advances that this circuit’s rules, as [;>well as The Bluebook’s, prohibit their use and that citations must appear, solely, in the body of the opinion.

Contrary to Chief Judge Doucet’s assurances, there is no legal proscription against using citational footnotes. As his authority, he refers to “this court’s officially adopted citation rules,” known as “Citation Manual,” and The Bluebook: A Uniform System of Citation, Rule 1.1 and Practitioner’s Note 2 (16th Ed.1996). This court’s current citation manual simply refers judges to The Bluebook concerning this issue. Bluebook Rule 1.1 does not address location of citations in legal opinions. Nevertheless, when taken out of context, one might conclude that Practitioner's Note 2, impliedly, supports Chief Judge Doucet’s proposition. However, to discern their true meaning, The Bluebook provisions, in question, should be interpreted in the proper context; namely, The Bluebook’s Introductory Note, 1.3, which provides that “[i]n court documents and legal memoranda, citations generally appear within the text of the document, as full sentences or as clauses within sentences, directly after the propositions that they support.” (Emphasis added.) Thus, it is evident that The Bluebook does not dictate the location of citations but simply relates a common practice. And, it does not prohibit placing a citation in a footnote, which is appended to, and immediately follows, its proposition. Furthermore, Praotitioner’s Note 2 is not intended to be a mandatory rule but a mere example.

“The basic purpose of a legal citation is to allow the reader to locate a cited source accurately and efficiently.” Whether the citation is in the body of the opinion or in a footnote, on the same page, is of no moment because both accomplish the same purpose. The major difference is that placing it in a footnote provides an added advantage to the reader — an uncluttered, easy-to-read opinion.

| aMoreover, both, the United States and the Louisiana Constitutions and statutes are silent concerning the specific content and form of judicial opinions. And finally, our Uniform Rules — Courts of Appeal Rule 2-16(A), pertaining to an opinion, only provide that “[t]he decisions of a Court of Appeal may be expressed in ... a full opinion which gives the judgment of the court and a full statement of the reasons supporting the judgment[.]”

Furthermore, while legal scholars and opinion writers on this topic do oppose the use of substantive footnotes in judicial opinions; generally, they commend the use of citational footnotes. They sharply distinguish between the two: Citational footnotes are those which state the legal authority for a proposition by merely providing authority references to other legal sources; a footnote that serves any purpose, other than a simple citation to authority, is a substantive footnote.

Some of the highly respected jurists in Louisiana, who have used citational footnotes in their opinions, include United States Fifth Circuit Court of Appeal Judges Alvin Rubin and John Minor Wisdom, who began the practice in 1983, and recently retired Judge Melvin Shortess of the Louisiana First Circuit Court of Appeal.

Advanced legal writing scholars, such as Bryan A. Garner, recommend citational footnotes as the preferred legal opinion writing style. And, Garner notes that such a practice is the nationwide trend in, both, federal and state courts. For example, four of the five judges on the Delaware Supreme Court and two justices of the Texas Supreme Court use citational footnotes, as do all judges in Alaska and all appellate judges in California.

On the contrary, there is much rancor in the legal community concerning the use of substantive footnotes in legal opinions. For example, one law professor wrote that “[ajccording to the ‘devil | ¿theory of footnoting,’ any note other than a ‘pure’ citation is excrement in the corridors of academe.” (Emphasis added.) Similarly, Noel Coward is quoted in The Art of Footnote as having stated: “Encountering [a footnote] is like going downstairs to answer the doorbell while making love.” And Judge Mikva, one of their fiercest opponents, described footnotes as “phony excrescences” and “an abomination.” He explained that “[i]n the pure application, a footnote that merely cites a case or other writing is the easiest to defend — and the least troublesome!.]” “If I thought I was fully cured and that my crusade [to eliminate substantive footnotes] was catching on, I would use footnotes just for authority citations. If footnotes were confined to that use solely, readers could make up their own minds whether they were reading for profit or pleasure. A reader who just wanted to know what a judge was saying about the case being decided could ignore the footnotes altogether. The reader who wanted to wade in more deeply — check the authority, or distinguish it for future cases — could turn to the footnotes. As it is, because I am still full of footnote toxin, I put my authority citations right in the text. The result is hardly conducive to a flowing style of writing.” (Emphasis added.)

To say the least, this debate has generated some passion. However, none of these contemptuous denunciations were aimed at citational footnotes, which Chief Judge Doucet criticizes and uses, but rather at substantive footnotes, which Chief Judge Doucet, also, uses in his opinions.

IrjOriginally, judges did place citations in the body of the text, as opposed to in footnotes, not for any profound legal reason, but because of the mechanical limitations of typewriters, which were the tools available at that time. However, with subsequent technology, that limitation and, therefore, the real reason for putting citations in the text no longer existed. From that point on, presumably, judges were left with the option of placing citations in footnotes or in the body of their opinions. Indeed, Judge Mikva pointed out that using citational footnotes is a matter of individual, opinion, writing style.

In his concurrence, Chief Judge Doucet presented no authority to the contrary. His concurring opinion is disconcerting because it transcends the mere issue of the “correctness” of using citational footnotes in our opinions. He seems to suggest that all judges must adopt the same writing style — under the auspices of uniformity. Although I understand the importance for using a uniform citation form as a way to facilitate legal research for our profession, commanding uniform writing styles serves no endorsed, beneficial purpose. Instead, it thwarts a coveted safeguard in our judicial system — judicial independence. And, using a particular style in judicial opinions, including citational footnotes, is strictly within the realm of each judge’s independence.

United States District Judge Leonie M. Brinkema summed it up when she said that, “efforts to homogenize the federal courts of this nation are shortsighted. Diversity among our federal courts encourages experimentation and progress and is one of the reasons the federal judiciary has remained so dynamic ... no federal judge is required to follow any particular form for his or her opinions. Some judges value brevity; some use literary flourishes; some include many footnotes, others use few; some follow Blue Book format, others do not; some only cite to the official source, and others include parallel cites. To mandate that judicial opinions conform.J^fo a specific format ... seriously invades judicial independence.” (Emphasis added).

I fully support Judge Brinkema’s appreciation of judicial independence and its relevance to opinion writing. Her understanding is consistent with Cannon 1 of the Code of Judicial Conduct, which mandates that judges have a duty to protect, not subvert, their peers “in the exercise of judicial independence.”

In exercising that independence, my objective for using citational footnotes, as opposed to placing a string of citations in the middle of a sentence, is to write my opinions in an uncluttered, flowing, writing style in order to make them accessible and understandable, not only, to lawyers and judges, but also, to litigants and to the people whom I was elected to serve, without depriving the legal community of necessary references.

I disagree with Chief Judge Doucet’s assertion that it is a requirement that legal citations be placed in the body of the opinion. Furthermore, given the current, nationwide trend, legal experts’ recommendations, and the fact that using citational footnotes yields stronger, clearer opinions, I suggest that the other judges, in this state, and their readers would benefit by adopting this style. 
      
      . Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Soileau v. D & J Tire, Inc., 97-318 (La,App. 3 Cir. 10/8/97); 702 So.2d 818, writ denied, 97-2737 (La.1/16/98); 706 So.2d 979.
     
      
      . La.Code Civ.P. art. 966(A).
     
      
      . Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97); 702 So.2d 323.
     
      
      . Id.
      
     
      
      . Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98-50 (La.3/13/98); 712 So.2d 882.
     
      
      . Id.
      
     
      
      . Id.
      
     
      
      . Soileau, 702 So.2d 818.
     
      
      . Id.
      
     
      
      . See generally, St. Paul Fire & Marine Ins. Co. v. Whitmire, 578 So.2d 1180 (La.App. 5 Cir.1991).
     
      
      . See State v. Crawford, 95-1352 (La.App. 3 Cir. 4/3/96); 672 So.2d 197; Haynes v. Calcasieu Medical Transp., Inc., 97-300 (La.App. 3 Cir. 10/29/97); 702 So.2d 1024; Guinn v. Rapides Parish Police Jury, 97-1519 (La.App. 3 Cir. 4/1/98); 708 So.2d 835; Picard v. Picard, 97-1258 (La.App. 3 Cir. 4/1/98); 708 So.2d 1292; Thomas v. Evangeline Parish Sch. Bd., 98-1458 (La.App. 3 Cir. 3/24/99); 733 So.2d 102; Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 99-1937 (La.App. 3 Cir. 5/10/00); 763 So.2d 40.
     
      
      . Telephone interview between Van M. Davidson and Bryan A. Garner, President, Law Prose, Inc., Dallas, Texas. (March 27, 2001).
     
      
      . The Harvard Law Review Association, The Bluebook: A Uniform System of Citation 4 (1996).
     
      
      . Abner J. Mikva, Goodbye to Footnotes, 56 U.Colo L.Rev. 647 (1985).
     
      
      . Bryan A. Garner, The Citational Footnote, 7 The Scribes Journal op Legal Writing 97 (2000).
     
      
      . Id. at 105-6.
     
      
      . Id. at 104.
     
      
      . Id.
      
     
      
      . Interview, supra, Note 2.
     
      
      . Arthur D. Austin, Footnotes as Product Differentiation, 40 Vanderbilt L.Rev. 1131, 1152 (1987).
     
      
      . Bowersock, The Art of Footnote, 53 Am.Scholar 54, 55 (1984).
     
      
      . Mikva, supra, Note 4.
     
      
      . Id.
      
     
      
      . Id.
      
     
      
      . Id.
      
     
      
      . See State v. Davis, 97-331 (La.App. 3 Cir. 10/29/97); 702 So.2d 1014; State v. Winston, 97-1183 (La.App. 3 Cir. 12/9/98); 723 So.2d 506; State v. Montgomery, 98-775 (La.App. 3 Cir. 1/27/99); 734 So.2d 650; Willis v. Duck, 98-1898 (La.App. 3 Cir. 5/5/99); 733 So.2d 707; Lavergne v. Thomas, 99-1186 (La.App. 3 Cir. 12/8/99); 758 So.2d 197; Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 99-1444 (La.App. 3 Cir. 5/24/00); 770 So.2d 786.
     
      
      . Garner, supra, Note 5 at 98.
     
      
      . Interview, supra, Note 2; Mikva, supra, Note 4.
     
      
      . Interview, supra, Note 2.
     
      
      . Letter from Judge Leonie M. Brinkema, United States District Judge for the Eastern District of Virginia to Administrative Office of the U.S. Courts, Appellate Court and Circuit Administrative Division (March 5, 1997) (on file with the Office of the U.S. Courts).
     