Opinion
No. 94-CC-0054.
January 11, 1994.
In re Louisiana Patient's Comp Fund; — Defendant(s); applying for supervisory and/or remedial writs; Parish of Sabine, 11th Judicial District Court, Div. "A", No. 46323; to the Court of Appeal, Third Circuit, No. CW93-1387.
Granted: Remanded to trial court for evidentiary hearing to determine amount of discount allowed and to determine if settlement equated to $100,000. If so, the motion to strike was properly granted; if not then the trial court must deny the motion. See Koslowski v. Sanchez, 576 So.2d 470 (La. 1991). Thereafter, the matter shall proceed according to law.
CALOGERO, C.J., dissents, agreeing with the reasons assigned by LEMMON, J. If Koslowski is not distinguishable from this case (and it may very well be) then Koslowski should be overruled.
LEMMON, J., dissents and assigns reasons.
MARCUS, J., dissents for reasons assigned by LEMMON, J.
HALL, J., not on panel.
Under La.Rev.Stat. 40:1299.44C(5), "the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars. . . ." Here, the insurer did not pay its policy limits of $100,000, but rather compromised for ninety-five percent of its policy limits. Accordingly, liability is not admitted.