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JESSIE W. WATKINS                                                                 *   NO. 2008-CA-0320
VERSUS                                                                            *
                                                                                      COURT OF APPEAL
AUBREY CHEATHAM,                                                                  *
TOTAL POWER ELECTRIC,                                                                 FOURTH CIRCUIT
INC., AND U.S. CAPITAL                                                            *
INSURANCE COMPANY                                                                     STATE OF LOUISIANA
*
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 96-14414, DIVISION “F-10”
HONORABLE YADA MAGEE, JUDGE
JUDGE MICHAEL E. KIRBY
(Court composed of Judge Charles R. Jones, Judge Dennis R. Bagneris, Sr., Judge
Michael E. Kirby)
LOWELL D. DYE
ROBERTS, BAUDIER & DYE
365 CANAL STREET
SUITE 2700
NEW ORLEANS, LA 70130
COUNSEL FOR APPELLANT
TERRILL W. BOYKIN
KRISTE L. TALTON
BORDENAVE, BOYKIN & EHRET
400 POYDRAS STREET
SUITE 2450
NEW ORLEANS, LA 70130
COUNSEL FOR APPELLEES (REGIONAL TRANSIT AUTHORITY
AND TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC.)
AFFIRMED IN PART; REVERSED IN PART; REMANDED




Plaintiff, Jessie W. Watkins, appeals the trial court judgment granting the
exception of no cause of action filed on behalf of defendants, Regional Transit
Authority                                                                                (“RTA”)  and  Transit  Management  of  Southeast  Louisiana,  Inc.
(“TMSEL”), and dismissing plaintiff’s claims against those defendants.
On August 30, 1996, plaintiff filed a petition for damages resulting from a
September 12, 1995 accident in which the bus she was operating was struck from
the rear by a vehicle driven by Aubrey Cheatham.   Plaintiff named as defendants
Cheatham; Total Power Electric, Inc., Cheatham’s employer and the owner of the
vehicle operated by Cheatham; and U.S. Capital Insurance Company, the liability
insurer of Total Power Electric, Inc.   In her petition, plaintiff alleges that at the
time of her accident, she was in the course and scope of her employment with
TMSEL, and that the bus she was operating was owned by RTA.
On December  4,  1996, TMSEL filed a petition of intervention, alleging
entitlement  to  recover  all  amounts  expended  on  behalf  of  plaintiff  from  the
defendants named in plaintiff’s original petition.   On September 11, 1997, U.S.
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Capital  Insurance  Company  and  Total  Power  Electric,  Inc.  filed  a  Notice  of
Temporary Injunction and Motion and Order to Stay Proceedings, in which the
trial court was notified that U.S. Capital Insurance Company had been put into
rehabilitation.   The trial court issued an order on September 12, 1997 enjoining and
restraining all parties in this matter from taking any action in furtherance of these
proceedings until further orders of the court.
On August 12, 1999, the plaintiff filed a first supplemental petition in which
she  alleged  that  on  November                                                          20,   1997,  defendant  U.S.  Capital  Insurance
Company was forced into liquidation proceedings and a permanent receiver was
appointed  in  said  liquidation  proceedings.     Plaintiff  also  added  defendant,
Louisiana Insurance Guaranty Association (“LIGA”), as a party pursuant to La.
R.S. 22:1375. et al., and alleged that LIGA is liable jointly, severally, and in solido
with defendants Aubrey Cheatham, Total Power Electric, Inc., and U.S. Capital
Insurance Company, for the injuries sustained by plaintiff in the September 12,
1995 accident.
On plaintiff’s motion, the trial court on October  27,  1999 lifted the stay
order previously issued on September 12, 1997.   On July 19, 2000, plaintiff filed a
second  supplemental  petition  naming  Lexington  Insurance  Company  as  a
defendant.   In this petition, plaintiff alleged that at all pertinent times, Lexington
Insurance Company had in full force and effect a policy of uninsured/underinsured
motorist  (“UM”) coverage issued to plaintiff’s employer, TMSEL, insuring the
vehicle/bus being operated by plaintiff and owned by RTA, while plaintiff was in
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the course and scope of her employment with TMSEL.    Plaintiff filed a third
supplemental petition on February 5, 2004, naming TMSEL as a defendant.   In this
petition, plaintiff alleged that pursuant to La. R.S. 22:1386, TMSEL provided UM
coverage to plaintiff in the amount of one million dollars pursuant to a self-insured
retention clause in its insurance policy issued by Lexington Insurance Company,
which sum must first be exhausted prior to any other named defendants becoming
liable for damages found to be due to plaintiff.
On June 16, 2004, TMSEL filed an exception of no cause of action, arguing
that  plaintiff’s  own  allegations  reveal that  she  has  no  cause  of  action  against
TMSEL  under  La.  R.S.  22:1386  because  that  section  can  only  apply  to  the
plaintiff’s claim against TMSEL if the company has received a certificate of self-
insurance from the State of Louisiana.   TMSEL alleged that plaintiff’s petition
contains no such allegation.   Furthermore, TMSEL argued that even if plaintiff had
alleged that TMSEL operated under a self-insurance certificate at the time of the
accident, Louisiana law does not require a self-insurer to extend UM coverage to
its  employees.    TMSEL  argued  that  an  injured  employee’s  exclusive  remedy
against his self-insured employer is for worker’s compensation benefits.
On October 8, 2004, defendants, Aubrey Cheatham, Total Power Electric
and LIGA filed a motion for summary judgment, arguing that sufficient UM limits
are  primary  to  LIGA,  rendering  these  defendants  not  liable  to  plaintiff.    On
October 14, 2004, plaintiff filed a fourth supplement and amended petition, naming
RTA as a defendant.    Plaintiff alleged that RTA and/or TMSEL were named
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insureds in a public liability insurance policy issued by the defendant, Lexington
Insurance  Company,  which  provided  these  defendants  with  $15,000,000.00  in
liability insurance coverage, subject to a one million dollar self-insured retention
clause in the insurance policy.   Plaintiff further alleged that pursuant to La. R.S.
22:1379(3)(b) and  1386, either and/or both of these self-insured defendants are
deemed to be “insurers” under State law because the Lexington policy contained
no UM rejection form signed by plaintiff.   Therefore, plaintiff alleged that either
and/or both defendants must provide a total of one million dollars in UM coverage
to plaintiff prior to any insurance coverage being afforded by its/their insurer,
Lexington Insurance Company.
On December  16,  2004, RTA filed an exception of no cause of action,
arguing that plaintiff’s own allegation reveal that she has no cause of action against
RTA under La. R.S. 22:1386.   RTA states that La. R.S. 22:1386 provides that a
“person having a claim against an insurer,” other than the insurer whose insolvency
triggered the provisions of the Louisiana Insurance Guaranty Association Law, is
required to exhaust that claim before seeking recovery from LIGA.   RTA alleges
that as plaintiff admits in her petition, RTA is a political subdivision of the State of
Louisiana, not an insurer.   Because it is a political subdivision, RTA stated that it is
not required to maintain liability insurance for its vehicles or to provide UM
coverage to occupants of those vehicles, citing La. R.S. 32:1041(A).   Furthermore,
RTA stated that the Louisiana Insurance Guaranty Association Law does not apply
to political subdivisions such as the RTA, citing La. R.S. 33:3062(B).   RTA also
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argued that the plaintiff did not allege that RTA actually issued her an insurance
policy or entered into a contract with her to provide UM coverage, but instead
seeks to hold RTA liable for UM coverage simply because it self-insured some of
its vehicle liability risk.   RTA stated that Louisiana law is clear that a self-insured
vehicle owner does not have to provide UM coverage, and therefore, RTA has no
legal obligation to furnish insurance coverage to plaintiff.
On December  29,  2004, TMSEL withdrew its exception of no cause of
action, without prejudice, and filed a motion for summary judgment.   On July 13,
2005, the trial court denied RTA’s exception of no cause of action, and also denied
motions for summary judgment filed on behalf of Aubrey Cheatham, Total Power
Electric, LIGA and TMSEL.    On June  1,  2006, the trial court signed an order
granting a motion to dismiss filed by defendants, Aubrey Cheatham, Total Power
Electric, Inc. and LIGA, dismissing plaintiff’s claims against those defendants.
On May 7, 2007, RTA and TMSEL filed a joint exception of no cause of
action based on a decision of this Court handed down on May 10, 2006 in Jackson
v. Cockerham,  2005-0320  (La. App.  4 Cir.  5/10/06),  931 So.2d  1138.   In their
exception, RTA and TMSEL stated that plaintiff’s claims against them must be
dismissed with prejudice because this Court held in Jackson v. Cockerham, supra,
that transit operators have no cause of cause against RTA and TMSEL for UM
benefits.
On  December  14,  2007,  the  trial  court  rendered  judgment  granting  the
exception  of  no  cause  of  action  filed  by  RTA  and  TMSEL,  and  dismissing
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plaintiff’s claims against those defendants.   In reasons for judgment, the trial court
cited this Court’s decision in Jackson v. Cockerham, 2005-0320 (La. App. 4 Cir.
5/10/06), 931 So.2d 1138, which held that the bus driver plaintiff was barred from
recovering UM benefits from TMSEL and RTA because that plaintiff’s exclusive
remedy for injuries sustained during the course and scope of employment with
those defendants was in worker’s compensation benefits.   The trial court stated that
based on her finding that the facts of the instant case were  “on all fours” with
Jackson v. Cockerham, supra, the court had to grant the exception of no cause of
action filed by RTA and TMSEL.  Plaintiff appealed the trial court judgment.
On appeal, plaintiff argues that the trial court erred in granting the exception
of no cause of action filed by TMSEL and RTA.   She argues that both TMSEL and
RTA are “insurers” under the facts of this case and the trial court erred in holding
that  she  cannot  recover  UM  benefits  from  her  employer,  TMSEL,  or  RTA.
Further, plaintiff argues that that trial court erred in holding that plaintiff was
precluded from recovering UM benefits from either RTA or TMSEL because her
exclusive remedy was in worker’s compensation.   Plaintiff also claims that RTA
was  not  her  employer,  and  therefore,  cannot  utilize  the                           “exclusive  remedy”
provisions of the Louisiana Worker’s Compensation Act.
In Ramey v. DeCaire, 2003-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-
119,  the Louisiana Supreme Court set forth the law regarding the peremptory
exception of no cause of action as follows:
A  cause  of  action,  when  used  in  the  context  of  the
peremptory exception, is defined as the operative facts
that give rise to the plaintiff's right to judicially assert the
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action  against  the  defendant.  Everything  on  Wheels
Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238
(La.1993). The function of the peremptory exception of
no cause of action is to test the legal sufficiency of the
petition, which is done by determining whether the law
affords a remedy on the facts alleged in the pleading. Id.
at  1235. No evidence may be introduced to support or
controvert an exception of no cause of action. La. C.C.P.
art. 931. Consequently, the court reviews the petition and
accepts well-pleaded allegations of fact as true. Jackson
v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.
5/15/01),                                                                                 785  So.2d  803,  806;  Everything  on  Wheels
Subaru, 616 So.2d at 1235. The issue at the trial of the
exception  is  whether,  on  the  face  of  the  petition,  the
plaintiff is legally entitled to the relief sought. Montalvo
v. Sondes, 93-2813, p. 6 (La. 5/23/94), 637 So.2d 127,
131.
Louisiana has chosen a system of fact pleading. La.
C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at
131. Therefore, it is not necessary for a plaintiff to plead
the theory of his case in the petition. Kizer v. Lilly, 471
So.2d                                                                                     716,                                                 719          (La.   1985).   However,   the   mere
conclusions of the plaintiff unsupported by facts does
[sic] not set forth a cause of action. Montalvo at p. 6, 637
So.2d at 131.
The burden of demonstrating that the petition states no
cause of action is upon the mover. City of New Orleans v.
Board of Com'rs of Orleans Levee Dist., 93-0690, p. 28
(La.                                                                                      7/5/94),                                             640  So.2d   237,   253.  In  reviewing  the
judgment of the district court relating to an exception of
no cause of action, appellate courts should conduct a de
novo review because the exception raises a question of
law and the lower court's decision is based solely on the
sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4
(La. 11/28/01), 801 So.2d 346, 349; City of New Orleans
at p.                                                                                     28,  640  So.2d at  253. The pertinent question is
whether, in the light most favorable to plaintiff and with
every  doubt  resolved  in  plaintiff's  behalf,  the  petition
states any valid cause of action for relief. City of New
Orleans at p. 29, 640 So.2d at 253.
We disagree with the trial court’s finding that the facts of the instant case are
“on all fours” with the case of Jackson v. Cockerham, 2005-0320 (La. App. 4 Cir.
5/10/06), 931 So.2d 1138.   In that case, this Court held that the bus driver plaintiff
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was  not  entitled  to  recover  UM  benefits  from  TMSEL  or  RTA  because  her
exclusive remedy against those defendants was in worker’s compensation benefits.
This Court stated that “[i]t is undisputed that Ms. Williams was within the course
and scope of her employment as a bus driver for defendants at the time of the
accident at issue.” Id. at p. 11, 931 So.2d at 1145. (Emphasis ours).   Citing La. R.S.
23:1032, which provides that an employee’s exclusive remedy against an employer
for a work-related injury is the right to worker’s compensation benefits, this Court
held that the trial court erred in ruling that the bus driver plaintiff was entitled to
recover UM benefits from TMSEL or RTA for her injuries that resulted from a
work-related accident.
This Court’s opinion in Jackson v. Cockerham, 2005-0320 (La. App. 4 Cir.
5/10/06),  931 So.2d  1138, and an earlier opinion in that litigation, Jackson v.
Cockerham, 2002-2493 (La. App. 4 Cir. 5/21/03), 847 So.2d 6981, refer to the bus
driver plaintiff as being employed by TMSEL and RTA.   Nothing in either of those
opinions indicates that there was anything in the records in those cases specifying
that the plaintiff was employed by TMSEL, but not by RTA.    The Louisiana
Supreme Court denied writs in both cases.2
In the instant case, the plaintiff’s petition alleges that RTA owned the bus
that the plaintiff was operating at the time of the accident, and that TMSEL was
her employer.   Although Section VIII of plaintiff’s original petition alleges that
1 We note that both of the Jackson v. Cockerham appeals involved motions for summary judgment, whereas the
instant matter is before us on an exception of no cause of action.
2 See Jackson v. Cockerham, 2002-2493 (La. App. 4 Cir. 5/21/03), 847 So.2d 698, writ denied, 2003-2207 (La.
11/14/03), 858 So.2d 429 and Jackson v. Cockerham, 2005-0320 (La. App. 4 Cir. 5/10/06), 931 So.2d 1138, writ
denied, 2006-1479 (La. 9/22/06), 937 So.2d 395.  We note that in response to our 2006 decision, RTA and TMSEL
applied for writs with the Louisiana Supreme Court, but the bus driver plaintiff did not.
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plaintiff was acting as an agent and/or employee of RTA while operating the bus,
Section III of that same petition alleges that the bus was owned by RTA and that
plaintiff was in the course and scope of her employment with TMSEL when the
accident occurred.   Plaintiff also identified TMSEL as her employer and RTA as
the owner of the bus in her second supplemental petition.
In accordance with La. R.S. 23:1032, plaintiff’s exclusive remedy against
her  employer,  TMSEL,  for  her  work-related  injury  is  the  right  to  worker’s
compensation benefits.   Therefore, the trial court correctly granted the exception of
no cause of action as to TMSEL.
However, we find that the trial court erred in granting the exception of no
cause of action as to RTA.   When viewing plaintiff’s petitions in the light most
favorable to plaintiff and with every doubt resolved in plaintiff's behalf, we find
that the plaintiff has stated a valid cause of action for recovery of UM benefits
against RTA.   Plaintiff sufficiently alleged in her petitions that RTA was not her
employer, and therefore, RTA cannot prevail on an exception of no cause of action
based on the argument that plaintiff’s exclusive remedy against it is in worker’s
compensation benefits.
For these reasons, we affirm the trial court’s granting of the exception of no
cause of action as to TMSEL, reverse the granting of the exception of no cause of
action as to RTA and remand this case to the trial court for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; REMANDED
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