TINA RAMUS, INDIVIDUALLY AND ON BEHALF OF MADISON RICKETSON (DECEDENT: STEPHEN RICKETSON) VERSUS KCJS TRUCKING, LLC Consolidated with TINA RAMUS, INDIVIDUALLY AND O/B/O XANDER RAMUS (DECEDENT: STEPHEN RICKETSON) VERSUS KCJS TRUCKING, LLC
2019 CA 0039 consolidated with 2019 CA 0040
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
SEP 27 2019
Robert W. Varnado, Workers’ Compensation Judge
On Appeal from the Office of Workers’ Compensation In and for the Parish of East Baton Rouge State of Louisiana District 6 Docket Nos. 16-02905 c/w 16-02946
Christopher R. Schwartz Counsel for Plaintiff/Appellant Luc D. Zeller Tina Ramus, on behalf of Madison Ricketson Metairie, Louisiana
Kirk L. Landry Counsel for Defendant/Appellee Virginia J. McLin KCJS Trucking, LLC Baton Rouge, Louisiana
Brad O. Price Counsel for 3rd Party Defendant/Appellee Denham Springs, Louisiana Sasha Ricketson and Dylon Berry Individually and/or through Danielle Berry
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
Welch J. concurs w/o reasons
OPINION
In this workers’ compensation case, the plaintiff appeals the Office of Workers’ Compensation (OWC) judgments that granted the defendant‘s motion to strike and motion for summary judgment. For the following reasons, we vacate the judgment granting the motion to strike and affirm the summary judgment.
FACTS AND PROCEDURAL HISTORY
This matter arises out of the unfortunate death of Stephen Ricketson, whose vehicle was struck by a train on May 10, 2015. Mr. Ricketson was an employee of KCJS Trucking, LLC (KCJS) at the time of his death. Louisiana Construction & Industry Self Insurers Fund, as the workers’ compensation provider of KCJS, has voluntarily paid and continues to pay workers’ compensation death benefits to his widow, Sasha Ricketson. Tina Ramus contends that her children, Madison Ricketson and Xander Ramus, are the biological children of Mr. Ricketson and entitled to workers’ compensation benefits as a result of his death.1
The present litigation began on May 6, 2016, when Ms. Ramus, on behalf of Madison Ricketson, filed a disputed claim for compensation seeking workers’ compensation benefits for the death of Mr. Ricketson while in the course and scope of his employment with KCJS.2 After counsel was enrolled, Ms. Ramus amended the disputed claim for compensation to specifically assert that Madison was entitled to a percentage of the death benefits being paid to Ms. Ricketson. The amendment also added as parties Ms. Ricketson, as Mr. Ricketson‘s widow, and Danielle Barry, on behalf of Dylan Barry, another minor child of Mr. Ricketson, asserting that each party in this matter was entitled to a percentage of the death benefits owed. The disputed claim for compensation was amended a second time to assert that Madison was financially dependent on Mr. Ricketson.
On July 16, 2018, KCJS filed a motion for summary judgment, asserting that in order to receive a portion of the workers’ compensation benefits, Ms. Ramus had to establish that Madison was a dependent of Mr. Ricketson at the time of his death. KCJS alleged that no evidence had been presented to establish Madison‘s dependency. Ms. Ramus opposed the motion for summary judgment, attaching three exhibits. Thereafter, Ms. Ramus filed a supplemental opposition to the motion for summary judgment, attaching an additional exhibit. In response, KCJS filed a reply memorandum and a motion to strike, objecting to the timeliness of the opposition, as well as to the evidence offered by Ms. Ramus. Following a hearing on August 30, 2018, the OWC granted the motion to strike and thereafter granted the motion for summary judgment. On September 6, 2018, the OWC signed separate judgments, granting the motion to strike and granting the motion for summary judgment, dismissing the claims of Ms. Ramus, on behalf of Madison Ricketson, with prejudice.3 After her motion for
DISCUSSION
The determination of motions for summary judgment in workers’ compensation cases is subject to the same standards utilized in ordinary civil actions. O‘Bannon v. Moriah Technologies, Inc., 17-0728 (La. App. 1 Cir. 3/29/18), 248 So. 3d 392, 399. 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.
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 does not require him to negate all essential claims of the adverse party‘s claim, 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. Thereafter, the burden is 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.
Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following relevant provisions: the motion for summary judgment and all documents in support thereof shall be filed and served not less than sixty-five days prior to the trial; any opposition to the motion and all documents in support of the opposition shall be filed and served not less than fifteen days prior to the hearing on the motion; and any reply memorandum shall be filed and served not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.
In ruling on the motion for summary judgment, the court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the OWC‘s determination of whether summary judgment is appropriate. Galliano v. CB & I, LLC, 18-0844 (La. App. 1 Cir. 4/10/19), 275 So. 3d 906, 909; O‘Bannon, 248 So. 3d at 399. Additionally, the trial court is granted broad discretion on its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Maldonado v. Kiewit Louisiana Co., 12-1868 (La. App. 1 Cir. 5/30/14), 152 So. 3d 909, 924, writ denied, 14-2246 (La. 1/16/15), 157 So. 3d 1129; Emery v. Owens-Corporation, 00-2144 (La. App. 1 Cir. 11/9/01), 813 So. 2d 441, 448, writ denied, 02-0635 (La. 5/10/02), 815 So. 2d 842.
In this matter, the motion for summary judgment was filed by KCJS on July 16, 2018, and set for hearing on August 30, 2018.4 Therefore, Ms. Ramus‘s opposition to the motion was required to be filed and served by August 15, 2018. See
On August 27, 2018, KCJS filed a reply memorandum objecting to 1) the untimely service of the initial opposition, 2) the untimely filing and service of the supplemental opposition, and 3) the quality of the evidence submitted by Ms. Ramus. The same arguments were included in a motion to strike filed the same day as the reply memorandum.
In her first two assignments of error, Ms. Ramus asserts that the OWC erred in granting the motion to strike. Particularly, Ms. Ramus contends that a motion to strike is not a proper means of objecting to documents submitted in support of or in opposition to a motion for summary judgment. Further, she argues that a motion to strike requires a contradictory hearing, which in this matter was scheduled less than fifteen days after the filing of the motion.
Under
Nevertheless, even if the OWC erred in granting the motion to strike in this matter, we find no error by the OWC in excluding the evidence. Besides filing a motion to strike, KCJS also objected to the timeliness of the filing of the initial and supplemental opposition and to the quality of the evidence submitted in its timely reply memorandum.5
In this matter, although Ms. Ramus filed her opposition to the motion for summary judgment on August 10, 2018, she admitted that the opposition was not served on opposing counsel until August 22, 2018. Therefore, Ms. Ramus‘s opposition to the motion for summary judgment was untimely. The OWC considered the objections prior to rendering judgment under
In her remaining assignment of error, Ms. Ramus contends that the OWC erred in granting the summary judgment motion, arguing that the evidence she submitted created a genuine issue of material fact as to whether Madison is a dependent of Mr. Ricketson. In response, KCJS asserts that even if her opposition memorandum had been timely filed and served, Ms. Ramus failed in her burden of proof, as she offered three unauthenticated documents inappropriate for summary judgment and a conclusory affidavit that failed to create a genuine issue of material fact.
Because KCJS was not going to bear the burden of proof at trial on the issue that was before the OWC on the motion for summary judgment, KCJS was not required to negate all essential elements of Ms. Ramus‘s claim, but rather KCJS had to point out to the OWC the absence of factual support for one or more elements essential to Ms. Ramus‘s claim. See
In order to be entitled to a percentage of death benefits awarded under Louisiana‘s workers’ compensation law, Ms. Ramus had to establish that Madison was a dependent of Mr. Ricketson at the time of his death. See
In the present matter, it is undisputed that Madison was not residing with Mr. Ricketson at the time of his death. Therefore, for the conclusive presumption under
Ms. Ramus submitted with her opposition memorandum a copy of a photograph of a birth certificate for Madison issued by the State of California; a copy of correspondence dated March 7, 2018, to Ms. Ramus for Madison from the Social Security Administration showing a monthly benefit in the amount of $872.00; and her own affidavit. In her supplemental opposition, Ms. Ramus submitted a copy of a photograph of an Order/Notice to Withhold Income for Child Support in favor of Madison and directed to Mr. Ricketson for Ms. Ramus, in the amount of $404.00 per month. The copy of the Order/Notice was dated March 18, 2005, ten years before Mr. Ricketson‘s death.
In summary judgment proceedings, there is no live testimony adduced at the motion hearing, and accordingly, safeguards that generally may be relied upon in adjudging the trustworthiness and reliability of evidence being offered by a party may not be available. Board of Ethics Matter of Monsour, 16-1159 (La. App. 1 Cir. 6/21/17), 233 So. 3d 625, 630, writ granted, 17-1274 (La. 12/5/17), 231 So. 3d 623, affirmed, 17-1274 (La. 5/1/18), 249 So. 3d 808. Nevertheless, the Louisiana Code of Civil Procedure provides its own safeguards as to motions for summary judgment by specifying the form of evidence that can be introduced in support of or in opposition to such a motion. Board of Ethics Matter of Monsour, 233 So. 3d at 630-31.
With the exception of Ms. Ramus‘s affidavit, the other exhibits submitted in opposition to the motion for summary judgment are not pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, or admissions. See
As to Ms. Ramus‘s affidavit, she attested that she is Madison‘s biological mother. She further stated that the Social Security Administration has deemed Madison a dependent and has awarded her death benefits, on Madison‘s behalf, which she continues to receive. Ms. Ramus also stated that a valid child support award was ordered by the State of California against Mr. Ricketson for Madison. Lastly, Ms. Ramus stated that Mr. Ricketson expressed his desire before his death to provide support to Madison and that Mr. Ricketson made payments to her “over time” for the support of Madison.
Even if we were to find that Ms. Ramus‘s statements in her affidavit sufficiently set forth specific facts, we nevertheless find that the alleged facts asserted therein fail to address Madison‘s dependency at the time of Mr. Ricketson‘s death. Ms. Ramus attested that Madison was deemed a “dependent” by the Social Security Administration, but Ms. Ramus failed to state that Madison was a dependent at the time of her father‘s death. Further, Ms. Ramus‘s affidavit contains no information setting forth the guidelines used by the Social Security Administration in determining whether one is a “dependent” entitled to benefits. Additionally, Ms. Ramus‘s statement that a valid child support award for Madison was ordered by the State of California also fails to include that it was valid on May 10, 2015, the date of Mr. Ricketson‘s death. See
Based on our de novo review of the record, we find that Ms. Ramus failed to produce factual support sufficient to establish the existence of a genuine issue of material fact or that KCJS was not entitled to judgment as a matter of law. Accordingly, we can find no error by the OWC in granting summary judgment in favor of KCJS and dismissing Ms. Ramus‘s claims on behalf of Madison.
CONCLUSION
For the above reasons, we vacate the September 6, 2018 judgment of the OWC, granting the motion to strike. We affirm the September 6, 2018 judgment of the OWC, granting summary judgment in favor of the defendant, KCJS Trucking, LLC, and against the plaintiff, Tina Ramus, on behalf of Madison Ricketson, dismissing her claims with prejudice. All costs of this appeal are assessed to Tina Ramus, on behalf of Madison Ricketson.