Jeremiah Thomas v. Waste Management of Louisiana, LLC D/B/A Waste Management New Orleans Hauling and Wardell Allen

JEREMIAH THOMAS * NO. 2020-CA-0475

VERSUS *
COURT OF APPEAL
WASTE MANAGEMENT OF *
LOUISIANA, LLC D/B/A FOURTH CIRCUIT
WASTE MANAGEMENT NEW *
ORLEANS HAULING AND STATE OF LOUISIANA
WARDELL ALLEN *******

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 62-894, DIVISION “A”
Honorable Kevin D. Conner, Judge
******
Judge Edwin A. Lombard
******
(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany
G. Chase)

Jeffery A. Mitchell
Monica C. Sanchez
Hugo L. Chanez
MITCHELL SANCHEZ, LLC
3850 N. Causeway Blvd., Suite 1500
Metairie, LA 70002

-AND-

Troy R. Keller
TROY R. KELLER, APLC
917 N. Causeway Blvd
Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLEE

Charles J. Duhe, Jr.
Michael M. Thompson
Lacey Sanchez Rispone
TAYLOR, WELLONS, POLITZ & DUHE, APLC
4041 Essen Lane, Suite 500
Baton Rouge, LA 70809

COUNSEL FOR DEFENDANTS/APPELLANTS

AFFIRMED

FEBRUARY 24, 2021

EAL

TFL The Appellant, Waste Management of Louisiana, LLC d/b/a Waste

TGC Management New Orleans Hauling (“WM”), seeks review of the January 30,

2020 judgment of the district court, granting the Motion for Constructive

Contempt of the Appellee, Jeremiah Thomas, and awarding him $1,500 in

attorney’s fees plus costs. Based upon our review of the facts and applicable law,

we affirm the district court’s judgment, finding no abuse of its vast discretion.

Facts and Procedural History

This appeal stems from a personal injury lawsuit filed by Mr. Thomas in

Plaquemines Parish. Mr. Thomas was working at a landfill in Belle Chasse on

April 2015, when the door of a WM container he was standing near snapped open,

striking him on the back of his head. The WM container was on a vehicle being

operated by Wardell Allen. Mr. Thomas was knocked unconscious upon impact.

Mr. Thomas alleges that as a result of the accident he suffered a traumatic brain

injury (TBI) and other severe injuries that required him to undergo back surgery

and receive treatment for consistent neck pain, in addition to other treatments. In

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2016, he filed a lawsuit against Mr. Allen and WM, seeking economic and non-

economic damages.

The instant appeal involves a three-year discovery dispute over WM’s

failure to produce certified copies of insurance policies requested by Mr. Thomas.

This dispute began in August 2017, when Mr. Thomas propounded a Request for

Production of Documents upon WM, which included the following request for

insurance policies:

Please produce a certified copy of any and all insurance
policies, including but not limited to:

A. Liability insurance policy(ies);
B. Excess insurance policy(ies);
C. Commercial general liability (CGL) insurance
policy(ies);
D. Protection and indemnity insurance policy(ies);
E. Umbrella policy(ies); and
F. Any other applicable insurance policy(ies) providing
coverage to Waste Management for the claims made in
this action.

WM failed to initially respond and again failed to respond after receiving a

two week extension. Mr. Thomas then moved to compel WM to comply. The

district court granted the motion to compel (“First Judgment”) at a December 4,

2017 hearing, and ordered WM to respond within 30 days. WM did not make an

appearance at the hearing.

Thereafter, WM again failed to provide Mr. Thomas with discovery

responses, causing Mr. Thomas to file a second discovery motion, “Motion for

Constructive Contempt and to Compel Responses to Discovery.” WM then

responded, producing a $2,000,000 policy, which it claimed was its primary

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policy. It also submitted a supplemental response to the discovery, but did not

produce another policy, explaining:

The previously produced policy provides more than
enough coverage for the plaintiff’s claims in this case.

Nevertheless, the district court granted the second motion in part and with

respect to insurance, the court ordered WM to produce all relevant insurance

policies in an August 30, 2018 judgment, referred to herein as the Second

Judgment.1

WM then submitted an additional $9,000,000 policy, totaling proof of $11,

000,000 in coverage, rationalizing that the value of Mr. Thomas’ claim was less

than this amount. WM’s response, however, spurred Mr. Thomas to file a third

motion— Motion for Constructive Contempt— averring that WM purposefully

disregarded the Second Judgment issued by the district court. At a January 13,

2020 hearing, the district court granted the motion (hereinafter the “Contempt

Judgment”) with regard to the outstanding insurance discovery and ordered that all

policies be produced within 30 days. The court further imposed sanctions against

WM, which was ordered to pay $1,500 in attorney’s fees plus costs to Mr. Thomas.

This timely suspensive appeal followed. WM raises two assignments of

error:

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The district court’s Second Judgment states in pertinent part:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
defendants, Waste Management of Louisiana, LLC, d/b/a New
Orleans Hauling, and Wardell Allen, shall respond to plaintiff’s
discovery requests, including:

1) Providing all applicable insurance policies relevant to the event
that gave rise to this lawsuit, in response to Request for Production
No. 6 . . .

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1. The district court committed manifest error when it
changed the Second Judgment, and, consequently, found
WM in contempt of court despite its compliance with the
court’s First Judgment; and

2. The district court misinterpreted La. Code Civ. Proc. art.
1423, resulting in the Contempt Judgment, wherein WM
was ordered to produce its insurance tower or layers of
insurance. Moreover, the court failed to conduct a
balancing test of Mr. Thomas’ showing of the potential
judgment value against the relevancy and hardship of
producing insurance policies that “may be liable to
satisfy part or all of [that] judgment” as required by law.

Standard of Review

Trial courts are vested with broad discretion when ruling upon discovery

matters. Sercovich v. Sercovich, 11-1780, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d

600, 603. Appellate courts should not disturb such rulings absent a clear abuse of

discretion. Id. “An appellate court must balance the information sought in light of

the factual issues involved and the hardships that would be caused by the court's

order when determining whether the trial court erred in ruling on a discovery

order.” Id. (internal citation omitted).

Moreover, appellate courts also review a district court’s finding of contempt

for an abuse of discretion. Laborde v. Laborde, 19-0634, p. 4 (La. App. 4 Cir.

5/6/20), 299 So. 3d 657, 660, writ denied, 20-0686 (La. 9/29/20), 301 So. 3d 1193

(citations omitted). In Germain v. Germain, 19-0067, 19-0068, 19-0069, pp. 3-4

(La. App. 4 Cir. 9/11/19), 282 So.3d 282, 285, we defined contempt and further

explained the vast discretion afforded to the district court in matters where a party

disregards court orders:

Contempt of court is defined as “any act or omission
tending to obstruct or interfere with the orderly
administration of justice, or to impair the dignity of
the court or respect for its authority.” La. C.C.P. art. 221.

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Pursuant to La. C.C.P. art. 224(2), the “[w]ilful
disobedience of any lawful judgment, order, mandate,
writ, or process of the court” constitutes constructive
contempt of court. In order for the trial court to find the
accused in constructive contempt of court, the trial court
must find that the accused “violated an order of the court
‘intentionally, purposely, and without justifiable
excuse.’” Knapp, 16-0979, p. 13, 216 So.3d at 140.
(quoting Burst v. Schmolke, 10-1036, p. 6 (La. App. 4
Cir. 4/6/11), 62 So.3d 829, 833). “The trial court is
vested with great discretion in determining whether a
party should be held in contempt for disobeying a court
order and the court's decision should be reversed only
when the appellate court discerns an abuse of that
discretion.” Id., 16-0979, p. 13-14, 216 So.3d at 140.

Thus, in the instant matter, we apply the abuse of discretion standard to our

review of the Contempt Judgment.

Consistency of the District Court Judgments

The first assignment of error raised by WM is that the district court

manifestly erred by unreasonably changing its judgments, and ultimately requiring

WM to produce all of its policies to Mr. Thomas. WM avers that the district court

twice changed its judgment, which resulted in WM producing more of its policies

each time. The district court ultimately mandated WM share all of its policies

despite the fact that WM had already produced policies that would cover an

$11,000,000 claim, which WM avers exceeds the value of the instant claim. We

find this assignment of error to be without merit because the district court thrice

ordered the production of all relevant insurance policies.

WM summarizes the allegedly ever-changing discovery rulings of the

district court as follows:

First Judgment: “fully respond to the Plaintiff’s
discovery”, which in this instance was Request for
Production No. 6.

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Second Judgment: ordering WM to “provide all
applicable insurance policies relevant to the event that
gave rise to this lawsuit.”

Hearing on the Motion for Constructive Contempt: The
district court stated “I meant every policy that could
possibly provide coverage.”

WM characterizes the wording of the judgments and the district court’s

rulings as being ever-changing and having unreasonable terms. Terms such as

“fully respond,” “provide all applicable policies” and submit “every policy that

could possibly provide coverage,” however, instead evidence that the district court

consistently ordered the production of all relevant insurance policies.

The record reveals that there was no substantive change in the judgments

issued by the Court. As WM did not make an appearance at the initial motion to

compel hearing, it should have sought clarification of the First and Second

Judgment, instead of persistently failing to comply and later doling out the policies

it opted to disclose.

Indeed, at the January 2020 contempt hearing, the district court explained

that it was ordering the production of the same insurance policies it had originally

ordered, which is why it awarded attorney’s fees for all the previous rules:

. . . I'm going to order the production, once again, on
these documents, failure of which to produce could result
in dismissal of any argument you might have at trial. And
then I'm also ordering attorney fees and court costs for
the -- filing the Rule today. Not only today's Rule, but the
previous Rules on the same issue. [Emphasis added].

The district court’s explanation belies WM’s assertion that there was any

change in what was ordered to be produced.

In consideration of the foregoing, we further find WM’s assertion that it

would have been in compliance with the First and Second Judgments had the

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Contempt Judgment not been issued is also erroneous because WM’s repeated

failure to comply led to the rendering of the Contempt Judgment. This assignment

of error is without merit.

We address in the following assignment of error the underlying issue of

whether the district court had the authority to order production of all applicable

insurance policies.

Application of La. Code Civ. Proc. art. 1423

WM asserts in its second assignment of error that the district court’s

Contempt Judgment resulted in a misapplication of La. Code Civ. Proc. art. 1423,

and the court erroneously required WM to produce all of its policies. WM

maintains that under the clear wording of article 1423 and Louisiana jurisprudence,

a balancing test of factual issues and hardships is required when ordering the

production of discovery. If such a test were applied, WM maintains it would not

be required to produce all of its applicable policies. WM further asserts that it is an

absurd consequence to make a billion-dollar company produce all of its policies in

a personal injury lawsuit worth only a few million dollars.

Regarding article 1423, WM avers that by the time the district court issued

the Contempt Judgment, it had misapplied the plain meaning of the article. WM

contends that article 1423 allows for the partial discovery of insurance policies

relevant to a proceeding, not necessarily all policies because the plain language of

the statute does not support an interpretation of producing all policies. It avers that

there may be several policies under which there is no liability and those must be

safeguarded from production.

An interpretation of article 1423 requiring production of all of the relevant

policies would also lead to absurd consequences, according to WM, especially

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because Mr. Thomas has not demonstrated that the value of his claims exceeds

$11,000,000. WM alleges that the production of extraneous policies and imposing

sanctions is contrary to Louisiana law.

Lastly, WM avers the district court is responsible for safeguarding the

discovery process. Consequently, the court should have conducted a balancing test

of Mr. Thomas’s potential judgment value against the burden of producing policies

that may be liable to satisfy all or part of a judgment based upon plain wording of

the article. WM asserts that Sercovich, supra, calls for a balancing test of factual

issues and hardships a discovery order may cause. “An appellate court must

balance the information sought in light of the factual issues involved and the

hardships that would be caused by the court's order when determining whether the

trial court erred in ruling on a discovery order.” Sercovich, 11-1780, p. 5, 96 So. 3d

at 603 (quoting Wollerson v. Wollerson, 29,183, p. 2 (La.App. 2 Cir. 1/22/97), 687

So.2d 663, 665).2

In the matter sub judice, WM maintains that because a balancing test was

not performed it should not have to produce all of its relevant policies. Production

of all policies, it argues, is an absurd consequence, especially because as a billion-

dollar company it has multiple layers of insurance that may not come into play

based on the value of Mr. Thomas’ claims.

2
In Sercovich, a wife sought the production of certain business and tax records for business
entities that her husband sold to his sons from a prior marriage, in order to calculate final
periodic spousal support. The district court denied a motion to quash filed on behalf of the
business entities to stop the production of the requested documents and denied a motion for new
trial. Sercovich, 11-1780, pp. 2-4, 96 So. 3d at 601-02.

On appeal, this Court recognized that the wife’s right to such records under Louisiana’s
“broadly and liberally construed” discovery statutes was not unlimited because her request
involved the production of financial records of a confidential and sensitive nature. Therefore, the
matter was remanded to the district court to conduct an in camera review of the requested
records to determine which records should be produced. Id., 11-1780, pp. 7-8, 96 So. 3d at 604.

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La. Code Civ. Proc. art. 1423, entitled Scope of Discovery; insurance

agreements, provides:

A party may obtain discovery of the existence and
contents of any insurance agreement under which any
person carrying on an insurance business may be liable to
satisfy part or all of a judgment which may be entered in
the action or to indemnify or reimburse for payments
made to satisfy the judgment. [Emphasis added].

The plain wording of the article indicates that the existence and contents of

any policy under which a party may be liable for all or part of a judgment is

discoverable. Additionally, the article contains no requirement that a party seeking

the existence and contents of an insurance policy must first establish the value of

their claim. Thus, as explained above, the district court’s numerous judgments

ordering the production of all policies germane to this claim is consistent with the

plain meaning of this article. “When a law is clear and unambiguous and its

application does not lead to absurd consequences, the law shall be applied as

written and no further interpretation may be made in search of the intent of the

legislature.” La. Civ. Code art. 9. The clear and unambiguous meaning of a law

cannot be disregarded. See La. Rev. Stat. 1:4.

The transcript of the January 13, 2020 hearing evidences that the district

court, Judge Kevin Conner, explained to counsel for WM that the production of all

applicable policies to the instant matter is what had always been ordered and all

policies were discoverable because the value of Mr. Thomas’s claim cannot be

arbitrarily determined by WM or the court itself:

I'm interested in insurance policies written on
behalf of your -- your client. You see, the problem is,
people, almost all the case law says he's entitled to get
the policies of insurance. It's not up to you or me to
dictate to him what is acceptable in terms of the amount

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of coverage and the amount of damages. That will be
shown at trial. My problem is -- And I understand where
you're coming from. If Mr. Chanez was standing up here
and say, "Okay. It's a 5 million dollar claim and you guys
have 10 million in insurance, there's a stipulation in the
record that no arguments will be made for blah-blah-
blah-blah-blah in terms of any type of exception or
exclusion." I believe he might be willing to take the deal.

But I think what he's telling you is at this time he's
not sure what the value of his claim is. He's not willing to
stipulate to that.

I'm stuck as a Judge, and I think the case law is in
his favor in terms of producing these policies. So I've
already ordered them once, you haven't done it. . .

At the conclusion of the hearing, counsel for WM admitted he had an issue

with the prior orders of and sought clarification:

Mr. Thompson: Just, again, because 1 did have a
problem and it's on me, the Court's Order is all applicable
policies that could conceivably provide coverage for this.

The Court: In every case I've dealt with these twenty-
something years of private practice, when I asked for a
company to give me their policies I meant every one that
could possibly provide coverage.

Mr. Thompson: Okay

The Court: Not self-insurance . . . . The ones that are
written out that you have a policy on. I had ordered them
previously produced and they haven't been produced. . . .
[Emphasis added].

WM is correct in asserting that discovery has its limits. Discovery is

limited, “particularly when justice requires that a party or other person be protected

from annoyance, embarrassment, oppression, or undue burden or expense.”

Channelside Servs., LLC v. Chrysochoos Grp., Inc., 15-0064, pp. 10-11 (La. App.

4 Cir. 5/13/16), 194 So.3d 751, 757–58 (quoting Stolzle v. Safety & Systems Assur.

Consultants, Inc., 02-1197, p. 2 (La. 5/24/02), 819 So.2d 287, 289; see also La.

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Code Civ. Proc. art. 1426). Nevertheless, insurance policies are jurisprudentially

recognized as being discoverable under article 1423 and WM does not offer any

specific legal support for its argument that the interests of justice outweigh a

party’s right to receive and review applicable insurance policies.

The Louisiana Supreme Court explained that La. Code Civ. Proc. art. 1423,

“expressly allows inquiry into the amount of insurance coverage afforded a

defendant.” Guy v. Tonglet, 379 So.2d 744, 746 (La. 1980). Noting that the article

was not enacted to permit discovery of all aspects of defendant's financial status,

the Supreme Court rationalized that insurance is not classified as an asset because

it “is maintained specifically for the purpose of protecting a defendant against

litigation; the insurance company ordinarily defends the litigation; and disclosure

of the existence of liability insurance does not involve a significant invasion of

privacy.” Id. Thus, while the Supreme Court anticipates some minor invasion of

privacy when insurance policies are produced, it recognizes that this information is

nevertheless discoverable.

Lastly, in determining sanctions for a party’s failure to comply with

discovery requests, a district court considers the prejudice to the other party and

the willfulness of the noncomplying party. Richardson v. Amos, 42,948, p. 4

(La.App. 2 Cir. 3/19/08), 978 So.2d 1184, 1187 (internal citations omitted). WM

has blatantly failed to comply over the past three years. It opted initially not to

respond to the propounded discovery and thereafter, to only produce policies that

were consistent with its valuation of Mr. Thomas’ claim.

Furthermore, regarding prejudice to Mr. Thomas, we note “[t]he Louisiana

Supreme Court has delineated the ‘basic objectives’ of the Louisiana discovery

process as follows: (1) to afford all parties a fair opportunity to obtain facts

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pertinent to litigation; (2) to discover the true facts and compel disclosure of these

facts wherever they may be found; (3) to assist litigants in preparing their cases for

trial; (4) to narrow and clarify the basic issues between the parties, and; (5) to

facilitate and expedite the legal process by encouraging settlement or abandonment

of less than meritorious claims.” Sercovich, 11-1780, p. 5, 96 So.3d at 603 (citing

Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125, 129 (La.1983)

(citations omitted)). In the instant matter, WM’s conduct has obstructed the

discovery process for Mr. Thomas over a three- year period because he has not

been afforded a fair opportunity to obtain facts pertinent to litigation; has been

prevented from discovering true facts; and has been hindered in preparing his case

for trial and delayed in potentially settling his claims. Specifically, WM’s failure to

disclose all relevant insurers, who are potential joint and solidary obligors under

Louisiana’s Direct Action statute, prevented Mr. Thomas from suing additional

defendants and possibly settling this matter. See La. Rev. Stat. 22:1269 (B)(1).3

Considering WM’s serial noncompliance with the district court’s judgments,

the deleterious effect failing to comply with article 1423 has had and will have

upon Mr. Thomas, and the vast discretion of the district court, we find that there

has been no showing that the district court abused its discretion in granting the

3
Mr. Thomas notes that defendants in Louisiana have been sanctioned for withholding the
production of insurance policies during discovery. For instance, in Peterson v. Gibraltar Sav. &
Loan, Inc., 98-1601, p. 3 (La. 9/3/99), 751 So.2d 820, 822, the Louisiana Supreme Court, on
rehearing, remanded a matter to the district court for a contradictory hearing to determine what,
if any, sanctions were appropriate for a group of defendants and their attorneys who failed to
disclose a $10,000,000 excess policy during discovery. Additionally, in Dufrene v. Gauthreau
Family LLC, 09-153, pp. 5-6 (La. App. 5 Cir. 11/10/09), 28 So.3d 465, 469, the Fifth Circuit
upheld sanctions against an insurer for failing to disclose additional applicable policies until the
end of trial. The Dufrene court reasoned an award of sanctions against an insurer for failure to
deal fairly with claimants did not bar an award of sanctions against insurer for its litigation
conduct. Id.

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Motion for Constructive Contempt, and ordering the production of all applicable

insurance policies.

DECREE

For the foregoing reasons, the January 30, 2020 judgment of the district

court, granting Jeremiah Thomas’ Motion for Constructive Contempt against

Waste Management of Louisiana, LLC d/b/a Waste Management New Orleans

Hauling, and awarding Mr. Thomas $1,500 in attorney’s fees plus costs, is

affirmed.

AFFIRMED

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