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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-30040

JOHNNY WADE HOWE,
Individually and on behalf of Courtney Howe,
Plaintiff-Intervenor Defendant-
Appellant
VERSUS
SCOTTSDALE INSURANCE CO.; ET AL.
Defendants
LOUISIANA STATE UNIVERSITY MEDICAL CENTER
Intervenor Plaintiff-Appellee

Appeal from the United States District Court
for the Western District of Louisiana

March 2, 2000
Before HIGGINBOTHAM and SMITH,
Judge.*
Circuit Judges, and FALLON, District
1

ELDON E. FALLON, District Judge:
On September 22, 1998, LSUMC moved
to intervene in Howe's suit because it
Johnny Wade Howe, on behalf of himself
claimed an interest in the proceeds. The
and his daughter Courtney Howe (hereinafter
district court granted the motion, and
collectively referred to as "Howe"), sued the
LSUMC filed a complaint of intervention on
Louisiana State University Medical Center
September 29, 1998 asserting its medical lien
("LSUMC") for a portion of their legal fees
privilege over the deposited funds for the
and costs of recovering damages from the
amount of Howe's medical bills.
defendants, Scottsdale Insurance Company
On October 8, 1998, LSUMC filed a
("Scottsdale"), General Motors Corporation,
motion for summary judgment seeking
and Gordon Ira Schlafman. LSUMC, which
$22,035.49, the full amount of its medical
treated Howe for injuries suffered in an
lien, without any pro-rata reduction for the
automobile accident with Mr. Schlafman,
attorney's fees and costs incurred by the
argues that it is entitled to a full
plaintiff. Howe opposed the motion arguing
reimbursement from any damage award for
that LSUMC, as partial subrogee and/or co-
the services it rendered without any
owner, is responsible for its share of the
reduction for a proportionate share of
expenses incurred in securing damages from
Howe's legal fees and costs. Because the
the defendants.
district court correctly granted summary
On December 7, 1998, the district court
judgment for LSUMC, we affirm.
granted LSUMC's motion for summary
judgment finding that LSUMC did not owe
I.
any portion of attorney's fees or costs to the
Johnny Wade Howe and his young
plaintiff and was entitled to recover the
daughter Courtney Howe were injured in an
amount of its medical lien. Plaintiff
automobile accident with Gordon Ira
subsequently appealed.
Schlafman on October 27, 1995. Following
the accident, they were taken to LSUMC in
II.
Shreveport, Louisiana for treatment. The
Louisiana provides two statutory
cost of treatment totaled $22,035.49.
vehicles for its charity hospitals to recover
On February 26, 1996, Howe filed suit
the costs of treating patients injured by third
against the defendants in the First Judicial
parties.
District Court in Caddo Parish, Louisiana to
First, the Louisiana legislature created a
recover damages suffered from the accident.
medical lien privilege which provides:
The defendants removed the case on the
basis of diversity jurisdiction to the Western
A health care provider, hospital, or
District of Louisiana on March 4, 1996.
ambulance service that furnishes
On June 12, 1998, Scottsdale,
services or supplies to any injured
Schlafman's insurer, deposited $100,000, the
person shall have a privilege for the
limit of its insurance policy, into the Court's
reasonable charges or fees of such
registry.
health care provider, hospital, or
ambulance service on the net amount
payable to the injured person, his
* District Judge of the Eastern
heirs, or legal representatives, out of
District of Louisiana, sitting by designation.
the total amount of any recovery or
2

sum had, collected, or to be
share of Howe's legal costs.
collected, whether by judgment
LSUMC insists that it did not exercise its
or by settlement or compromise,
subrogation rights in this case. Rather,
from another person on account
LSUMC asserted its medical lien privilege
of such injuries . . . . The
pursuant to La. R.S. � 9:4752 and therefore
privilege of any attorney shall
does not owe Howe for his legal costs.
have precedence over the
privilege created by this Section.
III.
The substantive law of this case is the
La. Rev. Stat. Ann. � 9:4752 (West 1999).
law of Louisiana. See Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938). The issue is
A charity hospital such as the LSUMC
whether Louisiana law requires an
may also intervene in suits brought by the
apportionment of recovery costs between
patient/plaintiff it treats.
LSUMC and the appellants. We review this
issue de novo. See Labiche v. Legal Sec.
Where a patient in any state
Life Ins. Co., 31 F.3d 350, 351 (5th Cir.
supported or veterans administration
1994). To determine Louisiana law on the
hospital in the state has been injured
apportionment of recovery costs, this Court
by the negligence of another person
should first look to final decisions of the
other than his employer . . . and has a
Louisiana Supreme Court. Id.
right of action for the recovery of
If the Louisiana Supreme Court has not
compensatory damages against that
ruled on this issue, then this Court must
person, the department . . . shall be
make an "Erie guess" and "determine as best
subrogated to the right of action to
it can" what the Louisiana Supreme Court
the extent of reasonable charges for
would decide. Krieser v. Hobbs, 166 F.3d
services rendered to the patient, in
736, 738 (5th Cir. 1999); id. (quoting
accordance with like charges in other
Transcontinental Gas Pipe Line Corp. v.
first class hospitals, including
Transportation Ins. Co., 953 F.2d 985, 988
physicians' and surgeons' fees.
(5th Cir. 1992)).
In making an Erie guess in the absence of
Id. � 46:7. The statute further explains that
a ruling from the state's highest court, this
"[a]ll proceedings for the recovery of any
Court may look to the decisions of
charges or fees due any charity hospital of
intermediate appellate state courts for
this state . . . may be presented in any court
guidance. See Matheny v. Glen Falls Ins.
of this state . . . in a direct action or by
Co., 152 F.3d 348, 354 (5th Cir. 1998).
intervention, or by third opposition." Id. �
Intermediate appellate courts of Louisiana
46:11.
are "a datum for ascertaining state law which
Howe contends that this statutory
is not to be disregarded by a federal court
framework makes LSUMC a legal subrogee
unless it is convinced by other persuasive
or co-owner of the cause of action. Because
data that the highest court of the state would
LSUMC could have acted directly or
decide otherwise." Labiche, 31 F.3d at 351
indirectly as co-owner of a cause of action
(quoting Commissioner v. Estate of Bosch,
under La. R.S. � 46:6, et seq., Howe argues
387 U.S. 456, 465 (1967)).
that LSUMC should be responsible for its
3

A.
explains that this Court should extend the
With these principles in mind, we turn to
co-ownership principles of Moody beyond
Louisiana jurisprudence. The Louisiana
the worker's compensation arena because the
Supreme Court has not ruled on the issue of
Louisiana Supreme Court has already applied
whether charity hospitals are required to
Moody to the case of an insurer. See
contribute toward its patients' costs of
Barreca v. Cobb, 668 So. 2d 1129 (La.
recovering damages from tortfeasors. The
1996) (holding health insurer responsible for
Court most closely addressed this issue of
legal costs of plaintiff's recovery). Appellant
cost-sharing in Moody v. Arabie when it
further contends that the principles of equity
considered the apportionment of legal costs
and unjust enrichment require LSUMC to
in a workers' compensation suit. See 498
share in the costs of obtaining a recovery
So. 2d 1081 (La. 1986).
because La. R.S. � 9:4752 provides LSUMC
In Moody, an injured worker who had
with a right to claim a portion of Howe's
received worker's compensation benefits
recovery.
brought suit against a third party tortfeasor.
Appellee responds that Moody and its
See id. at 1083. The worker's compensation
progeny are not applicable to LSUMC
carrier for the employer intervened to
because it is not a co-owner of a cause of
recover the amount of compensation paid to
action against a tortfeasor. Therefore, the
the worker. See id. The Court granted the
co-ownership responsibilities of Moody
recoupment by the worker's compensation
should not be applied to it.
carrier, but held that the carrier was
Howe's reliance on Barreca is misplaced.
obligated to pay a portion of the injured
In Barreca, the Louisiana Supreme Court
worker's recovery costs. See id.
applied the rationale of Moody to a health
The Court concluded that the employer
insurer because the insurer had a provision in
and worker held co-ownership over a
its policy granting it "the right to assert the
property right to recover damages from a
actions and rights of the plaintiff against the
third party. See id. at 1085. According to a
tortfeasor." Id. at 1131. Because the Court
theory of co-ownership, "each co-owner is
found that the insurer was contractually
responsible for his proportionate part of
subrogated to the plaintiff and therefore a
reasonable and necessary expenses and legal
co-owner of the cause of action, it held the
services that accrue to his benefit." Id. The
insurer responsible for a proportionate share
costs of recovering from the third party
of the recovery costs. See id. at 1132. In
tortfeasor, therefore, "are to apportioned
the present case, however, no explicit
between the worker and the employer
agreement or statute makes LSUMC the
according to their interests in the recovery."
subrogee and/or co-owner of Howe's cause
Id. at 1086.
of action.
Appellant argues that the cost-sharing
Because the Louisiana Supreme Court
rationale of Moody should apply to the
has not spoken directly on whether Moody
present case because La. R.S. 46-6, et seq.
should be extended to require charity
makes LSUMC the co-owner of appellant's
hospitals seeking compensation for medical
cause of action against a tortfeasor. As a co-
services to pay a share of a plaintiff's
owner of a cause of action, LSUMC should
attorney fees and costs, we must make our
be responsible under Moody for a portion of
best Erie guess as to how the Louisiana
the appellant's costs of recovery. Howe
Supreme Court would decide this issue. The
4

role of this court is not "to create or modify
charity hospital which has no independent
state law, rather only to predict it." St. Paul
right to seeks medical expenses from a
Fire & Marine v. Convalescent Services,
tortfeasor), writ denied, Charity Hosp. of
193 F.3d 340, 345 (5th Cir. 1999). Because
Louisiana v. Band, 600 So. 2d 645 (La.
there is no Louisiana Supreme Court
1992).
precedent on point, we seek guidance by
We cannot disregard a plethora of
looking to the precedents established by
precedent provided by the intermediate
intermediate state appellate courts. See
appellate courts of Louisiana when the
Labiche, 31 F.3d at 351.
appellant offers nothing to suggest why the
Louisiana Supreme Court would decide this
B.
case differently. Accordingly, we make an
Four of the five intermediate appellate
Erie guess that the charity hospitals of
courts in Louisiana have refused to extend
Louisiana would not be required to
Moody to charity hospitals and have held
contribute to the costs of recovering from a
that charity hospitals are not responsible for
tortfeasor by the Louisiana Supreme Court.
the costs of recovering damages from third
Therefore, we find that the district court
party tortfeasors. See Mena v. Muhleisen
correctly granted summary judgment for
Properties, 652 So. 2d 65, 69 (La. Ct. App.
LSUMC and affirm the judgement.
5 Cir. 1995) (holding that a charity hospital
seeking to enforce its medical lien privilege
AFFIRMED.
pursuant to La. R.S. � 9:4752 is not required
to contribute to the costs of an injured
person's recovery), writ denied, Mena v.
Muhleisen Properties, 653 So. 2d 592 (La.
1995); Nicholes v. St. Helena Parish Police
Jury, 604 So. 2d 1023, 1034, (La. Ct. App.
1 Cir. 1992) (refusing to apply Moody
because specific statutes and not the general
law of co-ownership govern the relations of
a plaintiff and a charity hospital), writ
denied, Nicholes v. St. Helena Parish Police
Jury, 605 So. 2d 1378 (La. 1992); Moore v.
State for Louisiana State Univ. Medical
Ctr., 596 So. 2d 293, 296 (La. Ct. App. 3
Cir. 1992) (holding that LSUMC does not
co-own a cause of action against a tortfeasor
when it exercises its privilege under La. R.S.
� 9:4752 and therefore is not obligated to
pay a portion of recovery costs), writ denied,
Moore v. State for Louisiana State Univ.
Medical Ctr., 600 So. 2d 667 (La. 1992);
Charity Hosp. of Louisiana v. Band 593 So.
2d 1392, 1394 (La. Ct. App. 4 Cir. 1992)
(distinguishing Moody from the case of a
5