Thelma Aisola v. Louisiana Citizens Property Insurance Corporation

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #050

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 14th day of October, 2015, are as follows:

BY GUIDRY, J.:

2014-CC-1708 THELMA AISOLA v. LOUISIANA CITIZENS PROPERTY INSURANCE
CORPORATION (Parish of St. Bernard)

For these reasons, we find the doctrine of lis pendens applies to
the plaintiffs’ individual actions even though they were not
named parties or joined in the first-filed class actions.
Accordingly, the trial court erred in denying the defendant's
exception of lis pendens as to plaintiff's Oubre, Orrill, Press,
and Christenberry claim. The court’s ruling overruling the
exception of lis pendens is hereby reversed, and the matter is
remanded to the district court for further proceedings.
REVERSED AND REMANDED.

JOHNSON, C.J., concurs in result.

10/14/15

SUPREME COURT OF LOUISIANA

No. 2014-CC-1708

THELMA AISOLA

VERSUS

LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION

ON SUPERVISORY WRITS TO THE THIRTY-FOURTH JUDICIAL
DISTRICT COURT FOR THE PARISH OF ST. BERNARD

GUIDRY, Justice

Plaintiffs, alleging to be putative class members of multiple class actions,

have filed their own individual suits against the defendant, Louisiana Citizens

Property Insurance Corporation (Citizens). Citizens excepted on grounds of

prescription and lis pendens. At issue is whether the doctrine of lis pendens bars

plaintiffs’ suits where the plaintiffs were not named parties in the first-filed class

actions. For the reasons set forth below, we find the trial court erred in overruling

the defendant’s exception of lis pendens.

FACTS

Plaintiffs were residents of, and owned homes in, St. Bernard Parish at the

time Hurricane Katrina came ashore on August 29, 2005. Their properties were

insured under policies of all-risk or homeowners insurance by the defendant.

Plaintiffs originally filed suit against Citizens on December 3, 2009, seeking

contractual and bad faith damages arising out of Citizens’ handling of their

property damage claims related to Hurricane Katrina. On October 28, 2013,

plaintiffs filed an amending and supplemental petition, pursuant to Ansardi v.

Louisiana Citizens Prop. Ins. Corp., 11-1717 (La. App. 4 Cir. 3/2/13), 111 So.3d
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460, writ denied 13-697 c/w 13-698 (La. 5/17/13), 118 So.3d 380. In the amended

petition, plaintiffs alleged they were putative members of seven class actions (six

Louisiana state actions and one federal class action), including Orrill, Oubre,

Press, Christenberry, Buxton, and Chalona.1 Relying on La. Code Civ. Proc. art.

596, as well as decisions from this court, plaintiffs alleged they had not opted out

of those class action suits and that their putative membership in those class actions

suspended prescription for all of their Hurricane Katrina claims.2 Citizens filed

exceptions of prescription and lis pendens arguing plaintiffs’ suits are the second-

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Plaintiffs alleged they are putative members of the following class action suits filed in
state court: (1) Orrill v. AIG, Inc., Civil District Court for the Parish of Orleans, Docket No.
2005-11720; (2) Oubre v. Louisiana Citizens Prop. Ins. Corp., 24th Judicial District Court,
Docket No. 625-567; (3) Press v. Louisiana Citizens Fair Plan Prop. Ins. Corp., Civil District
Court for the Parish of Orleans, Docket No. 2006-5530; (4) Christenberry v. Louisiana Citizens
Property Ins. Corp., Civil District Court for the Parish of Orleans, No. 2006-0819; (5) Chalona
v. Louisiana Citizens Prop. Ins. Corp., 34th Judicial District Court, Docket No. 107,125; and (6)
Buxton v. Louisiana Citizens Prop. Ins. Corp., Civil District Court for the Parish of Orleans, No.
2006-08341. Plaintiffs also alleged they are putative class members of State of Louisiana v.
AAA Ins., United States District Court for the Eastern District of Louisiana, Docket No. 07-5528
(sometimes referred to as the “Road Home” matter).
2
See Quinn v. Louisiana Citizens Prop. Ins. Corp., 12-0152 (La. 11/2/12), 118 So.3d 1011
(holding that the filing of an individual lawsuit is not a valid opt-out of a class action);
Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11-2835 (La. 11/2/12), 125 So.3d 1057
(submission of an election form, rather than the filing of an individual suit, is the exclusive
manner provided for a class member to opt out of a class action suit). La. C.C.P. art. 596(A)
provides:

A. Liberative prescription on the claims arising out of the transactions or
occurrences described in a petition brought on behalf of a class is suspended on
the filing of the petition as to all members of the class as defined or described
therein. Prescription which has been suspended as provided herein, begins to run
again:

(1) As to any person electing to be excluded from the class, thirty days from the
submission of that person's election form;

(2) As to any person excluded from the class pursuant to Article 592, thirty days
after mailing or other delivery or publication of a notice to such person that the
class has been restricted or otherwise redefined so as to exclude him; or

(3) As to all members, thirty days after mailing or other delivery or publication of
a notice to the class that the action has been dismissed, that the demand for class
relief has been stricken pursuant to Article 592, or that the court has denied a
motion to certify the class or has vacated a previous order certifying the class.

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filed litigation because their Hurricane Katrina claims are included in the first-filed

class actions.

Following a hearing, the trial court denied both exceptions.3 With regard to

the exception of lis pendens, the court found it “undisputed that there are presently

pending four suits arising out of the same transaction or occurrence pending in

Louisiana state courts as potential class action lawsuits.” Those pending suits were

identified as the Orrill,4 Oubre,5 Press,6 and Christenberry7 actions. The trial court

found that “none of the plaintiffs herein are named plaintiffs representing the

putative class” in those actions. Thus, the trial court reasoned, there are no

previously filed lawsuits between the plaintiffs and Citizens that would trigger the

exception of lis pendens. The court stated: “Although these plaintiffs were

putative members as of the time of filing of this lawsuit to take advantage of the

suspension of prescription, the putative class members were not named
3
The trial court overruled Citizens’ exception of prescription as it related to plaintiffs’ claims
that coincided with those pleaded in Orrill, Oubre, Press, and Christenberry, but sustained the
exception with regard to claims not pleaded therein. Citizens has not sought review of the trial
court’s ruling overruling its exception of prescription.
4
The Oubre class has been defined as “all present or past insureds ... whose loss adjustment was
not initiated within thirty (30) days after notification of loss.” The class certification in Oubre
was affirmed on appeal. See Oubre v. Louisiana Citizens Fair Plan, 07-66 (La.App. 5 Cir.
5/29/07), 961 So.2d 504, 507.
5
The Orrill class has been defined as “all present or past insureds ... whose claims were not
followed by a written offer to settle within thirty (30) days after receipt of satisfactory proof of
loss.” The class certification was affirmed on appeal. See Orrill v. Louisiana Citizens Fair
Plan, 11-1541 (La.App. 4 Cir. 6/13/12), 96 So.3d 647.
6
The Press class has been defined as “persons who had a Louisiana Citizens Property Insurance
Corporation homeowners’ insurance policy at the time of Hurricane Katrina and/or Rita;
suffered covered damage to structures insured ...; Citizens’ adjustment identified three or more
trades involved in the repairs ...; and the payment did not include 20% GCOP [general
contractor’s overhead and profit].” The Press class definition was affirmed on appeal. See
Press v. Louisiana Citizens Fair Plan Property Ins. Corp., 08-1313 (La.App. 4 Cir. 4/22/09), 12
So.3d 392, 394.
7
The Christenberry class definition, as described in the Christenberry petition filed in Civil
District Court for the Parish of Orleans, describes the proposed class as “all immovable property
owners.... whose policy was in full force and effect ... and who made a claim.... [E]ach class
member has been determined by the defendant to have a compensable loss and has either been
paid or is in the process of being paid.... [and] the loss payment to each class member included a
below market unit pricing on numerous items and non-payment of industry standard items.”

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plaintiffs/members of a certified class as to compromise their rights in any way to

proceed as plaintiffs in this action.”

Citizens first sought supervisory review in the court of appeal, which denied

the writ. We granted Citizens’ writ application to review the ruling of the district

court. Aisola v. Louisiana Citizens Prop. Ins. Corp., 14-1708 (La. 11/14/14), ___

So.3d ___.

DISCUSSION

Louisiana Code of Civil Procedure Article 531 provides:

When two or more suits are pending in a Louisiana court or courts on
the same transaction or occurrence, between the same parties in the
same capacities, the defendant may have all but the first suit dismissed
by excepting thereto as provided in Article 925. When the defendant
does not so except, the plaintiff may continue the prosecution of any
of the suits, but the first final judgment rendered shall be conclusive
of all.
The doctrine of lis pendens prevents a plaintiff from litigating a second suit

when the suits involve the same transaction or occurrence between the same parties

in the same capacities. For lis pendens to apply, La. Code Civ. Proc. art. 531

requires that (1) two or more suits are pending in a Louisiana court or courts; (2)

on the same transaction or occurrence; and (3) between the same parties in the

same capacities. The “test” established to determine if an exception of lis pendens

should be sustained is the same as that for res judicata; thus, an exception of lis

pendens should be sustained if “a final judgment in the first suit would be res

judicata in the subsequently filed suit.” United Gen. Title Ins. Co. v. Casey Title,

Ltd., 01-600 (La. App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065; see also Domingue

v. ABC Corp., 96-1224 (La. App. 4 Cir. 6/26/96), 682 So.2d 246, 248, writ denied,

96-1947 (La. 11/1/96), 681 So.2d 1268.

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For the following reasons, we find the trial court erred in denying

defendant’s exception of lis pendens as to plaintiffs’ Oubre, Orrill, Press, and

Christenberry claims. La. Code Civ. Proc. art. 597 provides that any judgment

rendered in a class action suit is conclusive as to all class members, whether joined

as parties or not. Duckworth v. Louisiana Farm Bureau Mut. Ins. Co., 11-2835

(La. 11/2/12), 125 So.3d 1057, 1069 (“[u]nder the articles governing Louisiana’s

class action, all persons possessing claims arising out of transactions or

occurrences described in a class action petition ... are bound by any judgment in

the action”); see also New Orleans Firefighters Ass'n of Louisiana, Local 632 v.

City Civil Serv. Comm'n of New Orleans, 371 So.2d 339, 342 (La. App. 4th Cir.

1979). Based upon plaintiffs’ allegations they are putative class members of the

Oubre, Orrill, Press, and Christenberry class action suits, which they assert in

order to secure the benefit of suspension of prescription under La. Code Civ. Proc.

art. 596, it follows that any judgment rendered in those suits would be conclusive

and, thus, res judicata, to the identical claims raised in plaintiffs’ instant individual

suits. Accordingly, because any judgment rendered in the Oubre, Orrill, Press,

and Christenberry class action suits would be res judicata to the identical claims

raised in the instant individual suits, lis pendens applies to those claims.

Though the plaintiffs concede there is no dispute the reliant class actions and

their individual law suits arise out of the same transaction or occurrence, indeed

they asserted as much in their petition, they nevertheless argue that there is no

“identity of parties” and that the class action suits are no longer pending for lis

pendens to apply. We find no merit to these arguments.

We find the trial court erred in finding there exists no “identity of the

parties” for lis pendens purposes when a putative class member, such as plaintiffs

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herein, is not a named plaintiff or joined as a party in the class action. The

plaintiffs argue here that they are not “parties” in the reliant class actions. They

contend the language contained in the procedural articles relating to class actions

makes a clear distinction between “parties” (the representatives of the class who

sue individually and in a representative capacity) and class “members” on whose

behalf the parties sue. For example, they point to language in La. C.C.P. art.

591(A), which reads “One or more members of a class may sue or be sued as

representative parties on behalf of all ….”

In Harris v. Louisiana Citizens Prop. Ins. Co., 14-120 (La. App. 5 Cir.

10/29/14), 164 So.3d 216, writ denied, 14-2484 (La. 2/6/15), ___ So.3d ___, the

court held the doctrine of lis pendens applied to the insured’s claims that were

identical to claims brought in five pending class action suits, rejecting a similar

argument as to the identity of the parties. The Harris court relied on our ruling in

Elfer v. Murphy Oil USA, Inc, wherein the plaintiffs attempted to untimely join a

class action suit previously filed in response to an explosion at the Murphy Oil

Refinery in Mereaux, Louisiana. 01-1058 (La. App. 4 Cir. 9/12/01), 804 So.2d 71,

writ granted and rev’d, 02-0020 (La. 3/15/02), 811 So.2d 892. In the Elfer case,

after the trial judge in the previously filed class action suit rejected their

applications to join the class, the 43 alleged putative class members who had been

rejected from the previously filed class action suit, along with 58 additional alleged

putative class members, filed a separate class action suit for identical claims

resulting from the Murphy Oil Refinery explosion. The defendants filed various

exceptions, including the exception of prescription and lis pendens. The trial court

granted the exceptions, dismissing the second-filed class action suit. Id. On

supervisory review, the court of appeal found the trial court had correctly granted

the defendants’ exception of lis pendens and, thus, properly dismissed the suit, but
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it found the exception of lis pendens applied only to the 43 putative class members

who had attempted to join the first-filed class action but did so untimely. This

court granted the defendant’s writ and found the exceptions of lis pendens and res

judicata applied to all of the putative class members—whether joined as part of the

original class action suit or not. Elfer, 811 So.2d at 892; see also La. Code Civ.

Proc. art. 597.

We agree with the reasoning of the Harris court and its interpretation of our

reasoning in Elfer. In order to obtain the benefit of suspension of prescription, the

plaintiffs here alleged they are putative class members of various pending class

actions and their claims arise out of the same transactions or occurrences as the

reliant class action suits. Any judgment rendered in the Oubre, Orrill, Press, and

Christenberry class action suits would be res judicata to the identical claims raised

by the plaintiffs in their individual suits. Because any judgment on those class

actions in which the plaintiffs are alleged putative class members would be

conclusive and binding as to the plaintiffs under La. Code Civ. Proc. art. 597, it

necessarily follows that the requirements of lis pendens are satisfied. As we

explained in Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La. 9/9/97), 703 So.2d 542:

The purpose and intent of class action procedure is to adjudicate and
obtain res judicata effect on all common issues applicable not only to
the representatives who bring the action, but to all others who are
“similarly situated,” provided they are given adequate notice of the
pending class action and do not timely exercise the option of
exclusion from the class action.

We also find no merit to the plaintiffs’ argument that they have been

excluded from the class definitions in Orrill, Oubre, and Press by virtue of the

settlements in those cases. For example, in Orrill, the Settlement provides: “The

Class is not intended to, and does not include: …any insured of Defendant who has

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a pending individual lawsuit against Defendant arising from Hurricane Katrina

and/or Hurricane Rita as of the date of preliminary approval.” However, plaintiffs

have not been excluded from the class itself; rather, they were excluded from the

settlement class as defined in that agreement. We discern no impediment to

plaintiffs’ recovery in the reliant class actions even though they may not be part of

the current settlement class in those actions.

Finally, we find no merit to the argument that the reliant class actions are no

longer pending either because of the settlements in Orrill, Oubre, and Press, or

because the suit in Christenberry has been deemed abandoned. The trial court

specifically found that it was undisputed that these four state court actions

remained pending. Plaintiffs have not pointed to anything in the record before us

that establishes otherwise. Orrill, Oubre, and Press were certified class actions,

and, while settlement agreements have been entered as to certain class members,

these matters remain open in their respective courts. The Christenberry class has

not been been certified, nor has it been denied class certification, and it also

remains pending in Civil District Court for the Parish of Orleans.

DECREE

For these reasons, we find the doctrine of lis pendens applies to the

plaintiffs’ individual actions even though they were not named parties or joined in

the first-filed class actions. Accordingly, the trial court erred in denying the

defendant’s exception of lis pendens as to plaintiffs’ Oubre, Orrill, Press, and

Christenberry claims. The trial court’s ruling overruling the exception of lis

pendens is hereby reversed, and the matter is remanded to the district court for

further proceedings.

REVERSED AND REMANDED
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10/14/15

SUPREME COURT OF LOUISIANA

NO. 2014-CC-1708

THELMA AISOLA

VERSUS

LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION

ON SUPERVISORY WRITS TO THE THIRTY-FOURTH JUDICIAL
DISTRICT COURT FOR THE PARISH OF ST. BERNARD

JOHNSON, Chief Justice, concurs in the result.

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