Janice Marlene Kosak and Janice Ashley Chaisson v. Louisiana Farm Bureau Casualty Insurance Company, Darrian Bozeman, Bryan Bozeman, GEICO Casualty Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0222

JANICE MARLENE KOSAK AND JANICE ASHLEY CHAISSON

VERSUS

LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY,
DARRIAN BOZEMAN, BRYAN BOZEMAN, GEICO CASUALTY
COMPANY

Judgment Rendered: DEC 1 0 2020

On Appeal from the Twenty First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Docket No. 151, 193

Honorable Charlotte H. Foster, Judge Presiding

Marie Riccio Counsel for Plaintiffs/Appellants,
New Orleans, Louisiana Janice Marlene Kosak and Janice
Ashley Chaisson

R. Heath Savant Counsel for Defendant/ Appellee,
Mark T. Assad Louisiana Farm Bureau Casualty
Baton Rouge, Louisiana Insurance Company

BEFORE: HIGGINBOTHAM, THERIOT AND WOLFE, JJ.

WOLFE, J.

Plaintiffs -appellants, Janice Marlene Kosak (" Kosak")
and Janice Ashley

Chaisson (" Chaisson"), appeal the September 27, 2019 judgment of the trial court

rendered in favor of defendant -appellee, Louisiana Farm Bureau Casualty

Insurance Company (" Farm Bureau"), granting Farm Bureau' s Exception of

Prescription and dismissing plaintiffs' First Amending/Supplementing Petition for
Damages alleging bad faith claims against Farm Bureau with prejudice. For the

following reasons, we conclude that the trial court improperly certified the

judgment as final under La. Code Civ. P. art. 1915( B) and dismiss the appeal.

FACTS AND PROCEDURAL BACKGROUND

On February 4, 2016, Kosak and Chaisson fax filed an Original Petition for

Money Damages and UM Benefits, naming Farm Bureau, Darrian Bozeman,

Bryan Bozeman, and GEICO Casualty Company as defendants. Kosak and

Chaisson alleged that on February 5, 2015, Kosak was driving her vehicle when

she was struck by Nicole Thomassie (" Thomassie"). They further alleged that, on

April 12, 2015, Chaisson was driving Kosak' s vehicle, with Kosak as a passenger,

when they were struck by Darrian Bozeman, whose father Bryan Bozeman was

insured with GEICO Casualty Company for $20, 000.

With regard to the February 5, 2015 accident, the petition states Thomassie' s

liability insurer tendered full policy limits in the amount of $15, 000, yet Kosak' s

medical bills related to the February 5, 2015 accident were estimated at

13, 209. 00. They further alleged that, effective at the time of the February 5, 2015
accident, Kosak had an uninsured/underinsured motorist (" UM") policy with Farm

Bureau with limits of $ 15, 000/$ 30, 000. Plaintiffs contended Thomassie was

underinsured, making Farm Bureau liable to Kosak, pursuant to its UM policy and
contract law;" nevertheless, Farm Bureau had not paid.

As to the April 12, 2015 accident, the petition further claims GEICO had not

yet tendered its full policy limits but had admitted liability by providing full
payment for the loss of Kosak' s vehicle. Kosak and Chaisson alleged they

exceeded the GEICO policy limits as a result of injuries sustained in the April 12,

2015 accident, which resulted in ongoing medical bills of approximately $ 20, 000
for Kosak and $ 6, 000 for Chaisson. They asserted that, effective at the time of the

April 12, 2015 accident, Kosak had a UM policy with Farm Bureau with limits of
50, 000/$ 100, 000, and Farm Bureau was liable to them, pursuant to its policy and

contract law."

Plaintiffs alleged Farm Bureau, as Kosak' s UM carrier, was liable in solido

with the tortfeasor' s liability carrier, GEICO. Accordingly, they sought a

judgment against Farm Bureau " for the full and complete UM policy limits" or

amounts to be determined by the trial court together with legal interest thereon

from the date of judicial demand, all costs of the proceedings, and all general and

equitable relief.

On April 9, 2019, Farm Bureau filed a Motion in Limine and Motion to

Strike. Farm Bureau sought to preclude all evidence of bad faith in this matter, as

it had not been pleaded, and strike all references to monetary damages and the

applicable limits of insurance policies issued by Farm Bureau from the plaintiffs'

petition, in accordance with La. Code Civ. P. art. 893( A)(2) and La. Code Evid.

art. 411.

Thereafter, on June 6, 2019, plaintiffs filed a Motion and Order for Leave to

File First Amending/ Supplementing Petition, which was granted on June 7, 2019.

Plaintiffs alleged, in their First Amending/ Supplementing Petition, that they made

satisfactory proof of loss to Farm Bureau, yet Farm Bureau made a delayed tender

for the February 5, 2015 accident and no tender with respect to the April 12, 2015

accident, despite being notified in writing that the liability carriers in connection
3

with both accidents had tendered full policy limits. Accordingly, plaintiffs alleged

Farm Bureau was in bad faith and liable for penalties and attorney fees under La.
R.S. 22: 1892 and La. R.S. 22: 1973.

Farm Bureau filed an Exception of Prescription on August 5, 2019, arguing
that plaintiffs'
bad faith claims contained in the First Amending/ Supplementing
Petition do not relate back to the filing of the original Petition for Damages, are

prescribed, and should be dismissed with prejudice.

Plaintiffs filed a Motion for Summary/Declaratory Judgment, purportedly
arguing Farm Bureau was liable for bad faith damages! Thereafter, Farm Bureau

filed a Cross Motion for Summary Judgment, seeking dismissal of Kosak' s bad

faith claims on the grounds that Farm Bureau cannot be in bad faith under La. R.S.

22: 1892 and La. R.S. 22: 1973 as there is a reasonable dispute as to causation.

The trial court heard Farm Bureau' s Exception of Prescription and Motion in

Limine and Motion to Strike, as well as plaintiffs' Motion for

Summary/Declaratory Judgment, on August 19, 2019. The trial court ruled that the

Motion in Limine was moot and took the matter under advisement as to Farm

Bureau' s Exception of Prescription and Motion to Strike and plaintiffs' Motion for

Summary/Declaratory Judgment. Thereafter, the trial court granted Farm Bureau' s

Exception of Prescription and Motion to Strike and found that plaintiffs' Motion

for Summary/Declaratory Judgment was moot. In its written reasons for judgment,

the trial court found as follows:

The Court finds Farm Bureau' s Motion in Limine is moot. In its
motion, Farm Bureau submits Plaintiffs made no claim for bad faith
penalties in the original petition filed on February 4, 2016. As such,
Farm Bureau seeks to have all references to bad faith penalties and
attorneys fees excluded at trial. On June 6, 2019, Plaintiffs filed a
First Amending/ Supplementing Petition, in which they allege Farm
Bureau' s bad faith, rendering Farm Bureau' s Motion in Limine to be
moot.

A copy of plaintiffs' Motion for Summary/ Declaratory Judgment was not contained in the
record lodged on appeal.
El

The Court grants Defendant' s Exception of Prescription as to

Plaintiffs' First Amending/ Supplementing Petition specifically relying
on Labarre v. Texas Brine Co. LLC, WL 4179590, No. 2017- 1676
La. App. 1St Cir. 8/ 30/ 2018). The Louisiana Supreme Court denied
writs in that matter. Labarre v. Texas Brine Company, LLC, 260
So. 3d 1217, 2018- 1617 ( La. 1/ 14/ 19). The Labarre case dealt with
claims against ... carriers for alleged bad faith under La. Rev. Stat.
Ann. 22: 1892 and 22: 1973 and their relation back to an original
petition. In Labarre, the Court stated, "We cannot say that our
colleagues committed palpable error in
determining a one- year
prescriptive period applied to Texas Brine Company, LLC' s claims of
bad faith under La. Rev. Stat. Ann. 22: 1892 against Indian Harbor
Insurance Company." The Court finds that Plaintiffs' First
Amending/ Supplementing Petition filed June 6, 2019 does not relate
back to the original petition filed February 4, 2016. Applying the one-
year prescriptive period, the Court finds Plaintiffs' bad faith claims
against Farm Bureau are prescribed and
accordingly dismisses
Plaintiffs' First Amending/ Supplementing Petition.

Further, pursuant to La. C. C. P. art. 893, the Court grants Defendant' s
Motion to Strike those portions of Plaintiffs' original petition which
mention specific
monetary amount [ sic] of damages allegedly
sustained by plaintiff(s). Additionally, pursuant to La. Code of
Evidence art. 411, the Court grants Defendant' s Motion to Strike
allegations regarding insurance policy limits listed in Plaintiffs'
original petition.

Lastly, based upon the Court' s granting of Defendant' s Exception of
Prescription, the Court finds the Plaintiffs' Motion for
Summary/Declaratory Judgment is moot.

On September 27, 2019, the trial court signed a judgment, in accordance

with its written reasons, granting Farm Bureau' s Exception of Prescription and

dismissing plaintiffs' First Amending/ Supplementing Petition for Damages

alleging bad faith claims against Farm Bureau with prejudice, decreeing that Farm
Bureau' s Motion in Limine and plaintiffs' Motion for Summary/Declaratory

Judgment were moot, and granting Farm Bureau' s Motion to Strike.

Plaintiffs filed an application for supervisory writ, seeking review of the trial

court' s judgment granting Farm Bureau' s Exception of Prescription and Motion to

Strike and denying as moot plaintiffs' Motion for Summary/ Declaratory Judgment.
This court subsequently denied that writ, on October 16, 2019, stating that the

criteria set forth in Herlitz Construction Co., Inc. v. Hotel Investors of New

5

Iberia, Inc., 396 So. 2d 878 ( La. 1981) ( per curiam) are not met. See Kosak v.

Louisiana Farm Bureau Casualty Insurance Co., 2019- 1260 ( La. App. 1 st Cir.
10/ 16/ 19), 2019 WL 5266338 ( unpublished writ action).

Thereafter, on October 24, 2019, plaintiffs filed a Motion for Judgment

Certification and Entry of Formal Appeal, seeking to appeal the trial court' s

September 27, 2019 judgment2 " ONLY TO THE EXTENT SAID JUDGMENT

GRANTS FARM BUREAU' S EXCEPTION OF PRESCRIPTION WITH

PREJUDICE, AND FOLLOWING THAT DECISION, STRIKES WITH

PREJUDICE PLAINTIFFS' FIRST AMENDING PETITION ALLEGATIONS

demanding ` special damages'[ J attorney' s fees, penalties, and costs based on

F] arm [ B] ureau' s violation of the contractual duty to timely tender the amount not

reasonably in dispute after satisfactory proof of claim is made)." ( Emphasis in

original.)
On October 29, 2019, the trial court signed an Order, stating in pertinent
part as follows:

WHEREAS This Motion/Petition for Appeal has been duly and
timely filed within thirty days of the JUDGMENT GRANTING
EXCEPTION OF PRESCRIPTION WITH PREJUDICE, AND
FOLLOWING THAT DECISION, STRIKING WITH PREJUDICE
PLAINTIFFS' FIRST AMENDING PETITION ALLEGATIONS
entered on October 7, 2019; 3

2 Plaintiffs' Motion for Judgment Certification and Entry of Formal Appeal stated that plaintiffs
appealed the trial court' s " October 7, 2019 Judgment." However, the trial court' s only judgment
rendered on October 7, 2019 solely decreed that Farm Bureau' s Cross Motion for Summary
Judgment was moot. Nevertheless, per their allegations in the Motion for Judgment Certification
and Entry of Formal Appeal, plaintiffs only appear to seek to appeal the trial court' s judgment on
Farm Bureau' s Exception of Prescription, which was signed on September 27, 2019 and mailed
on October 7, 2019. This court, ex proprio muto, issued a Rule to Show Cause Order, noting the
error in the judgment date in the Motion for Judgment Certification and Entry of Formal Appeal
and ordering the parties to show cause " as to what judgment is properly before this Court on
appeal ..."
On August 5, 2020, the writ panel issued the following action on the Rule to Show
Cause Order:

APPEAL MAINTAINED.

MRT
EW

Higginbotham, J., would address the merits of the Show Cause Order on appeal.
3 See footnote 2, supra.
Di

WHEREAS notice has been given of Plaintiffs' intent to
formally appeal devolutively from the portion of the written Judgment
rendered herein on October 7, 20194 ( Reasons for Judgment having
been written and filed on August 27, 2019) by Judge Charlotte Foster,
that is GRANTING EXCEPTION OF PRESCRIPTION AND
FOLLOWING THAT DECISION, STRIKING WITH PREJUDICE
PLAINTIFFS' FIRST AMENDING PETITION ALLEGATIONS;

WHEREAS the Court has determined that the portion of the
Judgment GRANTING EXCEPTION OF PRESCRIPTION AND
FOLLOWING THAT DECISION, STRIKING WITH PREJUDICE
PLAINTIFFS' FIRST AMENDING PETITION ALLEGATIONS is a
FINAL JUDGMENT and there is no just reason for delay;

IT IS FURTHER ORDERED THAT THE CLERK SHALL
ENTER A CERTIFICATION OF FORMAL APPEAL from the
PORTION of the written Judgment ENTERED OCTOBER 7, 20185
sic] ... in favor of plaintiffs' Uninsured/underinsured (" UM") carrier,
Louisiana Farm Bureau Insurance
Company (" Farm Bureau")
rendered herein by Judge Charlotte H. Foster, ONLY TO THE
EXTENT SAID JUDGMENT GRANTS FARM BUREAU' S
EXCEPTION OF PRESCRIPTION WITH PREJUDICE, AND
FOLLOWING THAT DECISION, STRIKES WITH PREJUDICE
PLAINTIFFS' FIRST AMENDING PETITION ALLEGATIONS.
Emphasis in original and footnote added.)

In this appeal, plaintiffs assign as error the trial court' s granting of the

Exception of Prescription, the trial court' s granting of Farm Bureau' s Motion to

Strike, and the trial court' s finding that plaintiffs' Motion for Partial Summary

Judgment/Declaratory Judgment was moot.

ANALYSIS

The judgment before us was certified as a final judgment in accordance with

La. Code Civ. P. art. 1915( B). Before we consider the merits of the appeal, we

must determine whether the judgment is properly certified. The September 27,

2019 judgment at issue, which merely dismisses plaintiffs' bad faith claims as set

forth in their First Amending/ Supplementing Petition, is not a final judgment under
La. Code Civ. P. art. 1841. Nor is it a final judgment for purposes of an immediate

appeal under the provisions of La. Code Civ. P. art. 1915( A). Therefore, this

4 See footnote 2, supra.
5 See footnote 2, supra.
7

court' s jurisdiction depends upon whether the judgment was properly designated
and certified as a final judgment pursuant to La. Code Civ. P. art. 1915( B)( 1). See

also La. Code Civ. P. arts. 1911( B) and 2083.

Although the trial court designated the judgment as being final and
appealable under La. Code Civ. P. art. 1915( B), that designation is not

determinative of this court' s jurisdiction. Van ex rel. White v. Davis, 2000- 0206

La. App. 1st Cir. 2/ 16/ 01), 808 So. 2d 478, 480. Appellate courts have the duty to

examine subject matter jurisdiction sua sponte, even when the parties do not raise

the issue. Motorola, Inc. v. Associated Indemnity Corporation, 2002- 0716 ( La.

App. 1st Cir. 4/ 30/ 03), 867 So. 2d 715, 717 ( en banc). If no reasons for the

certification are given but some justification is apparent from the record, the

appellate court should make a de novo determination of whether the certification

was proper. R.J. Messinger, Inc. v. Rosenblum, 2004- 1664 ( La. 3/ 2/ 05), 894

So. 2d 1113, 1122.

Historically, our courts have had a policy against multiple appeals and

piecemeal litigation. Capital Management Consultants, Inc. v. Duhon, 2016-

0703 ( La. App. 1st Cir. 4/ 18/ 17), 227 So. 3d 839, 842- 43. Louisiana Code of Civil

Procedure article 1915( B) attempts to strike a balance between the undesirability of

piecemeal appeals and the need for making review available at a time that best

serves the needs of the parties. Id. at 843. Thus, in considering whether a

judgment has been properly designated as final and appealable pursuant to La.

Code Civ. P. art. 1915( B), a trial court must take into account judicial

administrative interests as well as the equities involved. R.J. Messinger, Inc., 894

So. 2d at 1122; Templet v. State of Louisiana, Department of Public Safety and

Corrections, 2005- 1903 ( La. App. 1st Cir. 11/ 3/ 06), 951 So. 2d 182, 185. Some of

the factors a trial court should take into account in making an La. Code Civ. P. art.
1915( B) certification are the relationship between the adjudicated and

n.

unadjudicated claims; the possibility that the need for review might or might not be

mooted by future developments in the trial court; the possibility the reviewing
court might be obliged to consider the same issue a second time; and miscellaneous

factors such as delay, economic and solvency considerations, shortening the time
of trial, frivolity of competing claims, expense, and the like. R.J. Messinger, Inc.,

894 So. 2d at 1122. However, the overriding inquiry for the trial court is whether

there is no just reason for delay. Id. at 1122- 23.

In the present case, the signed Order, designating as final the portion of the
September 27, 2019 judgment that granted the Exception of Prescription and

dismissed the bad faith claims set forth in the plaintiffs' First

Amending/ Supplementing Petition, does not contain reasons for why " there is no

just reason for delay." Accordingly, we will make a de novo determination of

whether the certification was proper. R.J. Messinger, Inc., 894 So. 2d at 1122.

The transcript from the hearing to continue Farm Bureau' s Cross Motion for

Summary Judgment reveals that the trial court and the parties' counsel discussed

the language of the proposed judgment on the Exception of Prescription. The trial

court stated, "
I' m fully anticipating you to seek review at the First Circuit on this

decision, because it' s not a clear-cut thing to me. It' s kind of a little bit muddy....

I' m trying to put you in a position to go ahead and get reviewed." The trial court

further stated, "... I' m trying to make this as final as possible, because I know

you' re going to take it up." Additionally, when Farm Bureau' s counsel expressed

concern about half of the case pending at the appellate court while he tried the

underlying remaining half, the trial court stated, " I wouldn' t want to do it that way.

I' d want a decision on the bad faith issue."

However, with the dismissal of the plaintiffs' bad faith claims set forth in

their First Amending/ Supplemental Petition, the sole remaining unadjudicated

claims are plaintiffs' claims under " contract law" against Farm Bureau. Plaintiffs'

9

remaining claims against the tortfeasors, Darrian Bozeman and Bryan Bozeman,

and their insurer, GEICO, have been settled and dismissed. As outlined above, in

their Original Petition for Money Damages and UM Benefits, plaintiffs alleged the

following: Kosak and Chaisson were injured in two accidents; Farm Bureau had

policies of UM insurance in place at the time of both accidents as well as the limits

of those policies; and plaintiffs' respective injuries exceeded the tortfeasors'

insurance policy limits, making Farm Bureau liable to them under contract law and
its UM policies. As to their bad faith claims, plaintiffs alleged they made

satisfactory proof of loss to Farm Bureau through medical records, medical bills,

authorizations and deposition testimony. Nevertheless, plaintiffs contended that

Farm Bureau failed to timely make a UM tender for either accident.

Plaintiffs' contract claims and bad faith claims against Farm Bureau are

intertwined and center around the same set of operative facts, specifically the

plaintiffs' alleged injuries in the two motor vehicle accidents and Farm Bureau' s

alleged failure to pay under its UM policies. We find that all of these interrelated

facts depend on each other for common resolution and should not be separated on

appeal. Moreover, the adjudication of the prescription issue as to the plaintiffs'

bad faith claims, regardless of which party prevails on appeal, will not be

determinative of the merits of the contract claim against Farm Bureau; a trial will

still be necessary to determine the merits of that claim. See e.g. Malus v. Adair

Asset Management, LLC, 2016- 0610 ( La. App. 1st Cir. 12/ 22/ 16), 209 So. 3d

1055, 1061- 62 ( where the appeal was dismissed because the adjudication of the

nullity claim dismissed via exceptions of res judicata and prescription, regardless

of which party prevailed on appeal, would not be not determinative of the

remaining possessory action, and a trial would still be necessary to determine the

merits of that claim and the remaining request for injunctive relief). After

plaintiffs'
remaining claims herein have been adjudicated, either party will have
10

the right to appeal any adverse judgment rendered in the proceeding. See La. Code
Civ. P. art. 2083( A).

Additionally, any decision this court renders as to the bad faith claims may
be rendered moot by future developments in the trial court. The prohibited

conduct under La. R.S. 22: 1973 and La. R.S. 22: 1892 is virtually identical: the

failure to timely pay a claim after receiving satisfactory proof of loss when that

failure to pay is arbitrary, capricious, or without probable cause. Pelle v. Munos,

2019- 0549 ( La. App. 1st Cir. 2/ 19/ 20), 296 So.3d 14, 25. The primary difference

between these two statutes is the different time periods allowed for payment, thirty
days under La. R.S. 22: 1892 and sixty days under La. R.S. 22: 1973. Id. Because

these two statutes are penal in nature, they are strictly construed. Id.

In order to recover under La. R.S. 22: 1973 and La. R.S. 22: 1892, a plaintiff

must first have a valid, underlying, substantive claim upon which insurance

coverage is based. Pelle, 296 So. 3d at 25. The penalties authorized by these

statutes do not stand alone; they do not provide a cause of action against an insurer

absent a valid, underlying insurance claim. Id. Furthermore, breach of contract is

a condition precedent to recovery for the breach of duty of good faith. Id.

Therefore, prior to determining whether bad faith penalties are owed, a court must

first determine if there is an underlying claim, and if so, its validity. Clausen v.

Fidelity and Deposit Co. of Maryland, 95- 0504 ( La. App. 1 st Cir. 8/ 4/ 95), 660
So.2d 83, 86, writ denied, 95- 2489 ( La. 1/ 12/ 96), 666 So. 2d 320. Thus, if the

plaintiffs herein fail to prove at trial that Farm Bureau breached its contractual

obligations,
then Farm Bureau would be absolved of liability, and the issue

currently before this court would be rendered moot. See e.g. Pelle, 296 So.3d at 25

where insurer did not breach its insurance contract with the insured, the trial

court' s dismissal of bad faith claims under La. R.S. 22: 1973 and La. R.S. 22: 1892

was proper); see also Bayle v. Allstate Insurance Co., 615 F. 3d 350, 363 ( 5th Cir.

11

2010) ( applying Louisiana law) ( where breach of contract is a condition precedent

to recovery for the breach of the duty of good faith and the insurer did not breach

its insurance contract with the insureds, the district court properly denied the claim

for statutory penalties under La. R.S. 22: 1973 and La. R.S. 22: 1892). Moreover,

because the trial court can revise its partial judgment on the Exception of

Prescription at any time prior to final judgment, pursuant to La. Code Civ. P. art.

1915( B)( 2), the need for the appeal may be rendered moot.

The sole issue to be addressed by this appeal is whether the trial court erred

in finding that plaintiffs' claims for bad faith penalties were prescribed. Whether

this court affirms or reverses the judgment on the Exception of Prescription, any

appellate ruling would not end the litigation, but would only result in the matter

being remanded to the trial court for resolution of the parties' remaining claims at
trial.
Moreover, in the event of a reversal and remand, it is likely this court will

consider the merits of the bad faith claim in a subsequent appeal.

Furthermore, judicial resources may be wasted by appellate review of the

Exception of Prescription at this time, considering the probability of a later appeal

after adjudication of the plaintiffs' remaining claims. An immediate determination

of whether plaintiffs' claims for bad faith penalties have prescribed would not

significantly shorten the length of the trial, narrow the scope of evidence to be

adduced at trial, or decrease the costs of litigation. A full trial will still be

necessary for plaintiffs' remaining claims against Farm Bureau, which arise out of

the same operative facts, and essentially the same evidence will have to be

produced to adjudicate them, as the parties still would have to put on evidence of

plaintiffs'
injuries and damages as well as the insufficiency of the tortfeasors'

insurance. Consequently, the length and expense of the trial will not be materially

reduced by deciding this appeal. We are aware of no other factors, such as undue

delay, economic and solvency considerations, or frivolity of competing claims,

12

suggesting that the undesirability of piecemeal appeals is overcome in this instance

by some need to have the judgment reviewed at this time. See Carr v. Sanderson

Farms, Inc., 2017- 1499 ( La. App. 1st Cir. 4/ 6/ 18), 2018 WL 1663148, at * 2

unpublished).

Given the nature of the claims herein and the procedural posture of this case,

we are constrained to find that addressing the issues at this time would promote

piecemeal appeals. Accordingly, on our de novo review, we cannot conclude that

there is no just reason for delay.6 See e.g. Dupuy Storage and Forwarding, LLC
v. Max Specialty Insurance Company, 2016- 0050 ( La. App. 4th Cir. 10/ 5/ 16),

203 So. 3d 337, 343- 44, writ denied, 2016- 1982 ( La. 12/ 16/ 16), 211 So. 3d 1171

finding there were just reasons for delay and the judgment, granting a motion for

partial summary judgment dismissing the insured' s claim for bad faith penalties

against its insurer, should not have been certified as a final appealable judgment

6 We note the Rule to Show Cause Order also asked the parties to show cause as to " the propriety
of the trial court' s finality designation of the October 7, 2019 judgment." As discussed in
footnote 2, supra, the writ panel voted to maintain the appeal.

However, a regular appeal panel has the authority, and indeed the duty, to review, overrule,
modify, and/ or amend a writ panel' s decision on an issue when, after reconsidering the issue to
the extent necessary to determine whether the writ panel' s decision was correct, the appeal panel
finds that the writ panel' s decision was in error. Atchafalaya Basinkeeper v. Bayou Bridge
Pipeline, LLC, 2018- 0417 ( La. App. 1st Cir. 2/ 22/ 19), 272 So. 3d 567, 570; Joseph v. Ratcliff,
2010- 1342 ( La. App. 1st Cir. 3/ 25/ 11), 63 So. 3d 220, 223. Mere doubt as to the correctness of
the prior ruling by a writ panel is not enough to change the prior ruling; only where it is
manifestly erroneous or application of the law of the case doctrine would result in an obvious
injustice should we overrule or modify the prior ruling. Atchafalaya Basinkeeper, 272 So. 3d at
570; Joseph, 63 So. 3d at 223. Additionally, the discretionary law of the case principle does not

bar us from reconsidering our prior rulings, especially when the previous decision was clearly
erroneous and would result in an inappropriate review of a non -appealable judgment.
Atchafalaya Basinkeeper, 272 So. 3d at 570; Joseph, 63 So. 3d at 223- 24. In Atchafalaya
Basinkeeper, supra, and Joseph, supra, for instance, this court dismissed appeals for lack of
appellate jurisdiction, despite a writ panel' s preliminary order maintaining the appeal. See
Atchafalaya Basinkeeper, 272 So. 3d at 569- 70; Joseph, 63 So. 3d at 223- 25.

Our review of the September 27, 2019 judgment appealed by plaintiffs, as well as the complete
record, leads us to conclude that the writ panel' s previous ruling maintaining this appeal was in
error. Furthermore, we note that the discretionary law -of the
- -case principle does not bar us from
reconsidering our prior rulings, especially when the previous decision was clearly erroneous and
would result in an inappropriate review of a non -appealable judgment. Atchafalaya
Basinkeeper, 272 So. 3d at 570; Joseph, 63 So. 3d 220, 223- 24.

This court' s jurisdiction extends to final judgments. See La. Code Civ. P. art. 2083. Where the
September 27, 2019 judgment herein is not a final judgment for the reasons addressed in this
opinion, this court lacks appellate jurisdiction to review this matter.

13

and dismissing the insured' s appeal for lack of appellate jurisdiction); see also

Washington v. Allstate Indemnity Co., 2011- 1508 ( La. App. 3d Cir. 2/ 1/ 12),

2012 WL 340294, * 2 ( unpublished) ( finding the trial court abused its discretion in

designating its ruling, granting the insurer' s motion for summary judgment and

dismissing the insured' s claims for penalties and attorney' s fees with prejudice, as
appealable pursuant to La. Code Civ. P. art.
1915 and dismissing the appeal).

Therefore, we conclude the certification does not meet the R.J. Messinger, Inc.

requirements, this court lacks appellate jurisdiction, and we dismiss the appeal.'

Plaintiffs can seek appellate relief once a final judgment has been rendered and all

issues are properly before this court on appeal.

CONCLUSION

For the foregoing reasons, we dismiss the appeal of plaintiffs -appellants,

Janice Kosak and Janice Ashley Chaisson, without prejudice. Assessment of

appeal costs shall await final disposition of this matter.

APPEAL DISMISSED.

7 We recognize that when confronted with a judgment on appeal that is not final and appealable,
we are authorized to exercise our discretion to convert the appeal to an application for
supervisory writs. See e.g. McKenzie v. Imperial Fire and Casualty Insurance Company,
2018- 1325 ( La. App. 1st Cir. 4/ 12/ 19), 2019 WL 1578103, * 2, n. 5. However, as previously set
forth, plaintiffs already filed an application for supervisory writs also seeking review of the trial
court' s granting of Farm Bureau' s Exception of Prescription, and plaintiffs' writ application was
denied. See Kosak, 2019 WL 5266338; see also McKenzie, 2019 WL 1578103 at* 2, n. 5;
Malus, 209 So. 3d at 1062.

14

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0222

tv(/ JANICE KOSAK AND JANICE ASHLEY CHAISSON

VERSUS

LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY,
DARRIAN BOZEMAN, BRYAN BOZEMAN, GEICO CASUALTY
COMPANY

THERIOT, J., dissenting and assigning reasons.

I respectfully dissent from the majority' s conclusion that the trial court' s La.

C. C. P. art. 1915( B) certification of this appeal was improper under the Messinger

analysis. See R.J. Messinger, Inc. v. Rosenblum, 2004- 1664 ( La. 3/ 2/ 05), 894 So. 2d

113.

In this case, the trial court dismissed the plaintiffs' bad faith claims based on

this court' s writ denial in Labarre v. Texas Brine Co., LLC, 2017- 1676, p. 1

La.App. 1 Cir. 8/ 30/ 18), 2018WL4179590 at * I ( unpublished), writ denied 2018-

1617 ( La. 1/ 14/ 19), 260 So. 3d 1217 ( holding that it was not palpable error for the

court to determine that a one- year prescriptive period applies to bad faith claims

against insurers). However, less than a month after the trial court herein dismissed

the plaintiffs' claims, the Louisiana Supreme Court in Smith v. Citadel Insurance

Company, 19- 00052 (La.App. 1 Cir. 10/ 22/ 19), 285 So. 3d 1062, held that the proper

prescriptive period applicable to a first -party bad faith claim against an insurer is the

ten-year prescriptive period provided by La. C. C. art. 3499, since the insurer' s duty

of good faith is an outgrowth of the contractual and fiduciary relationship between

the insured and the insurer, and the duty of good faith and fair dealing emanates from

the contract between the insurer and the insured.' Smith, 19- 00052 at p. 6- 16, 285

So. 3d at 1067- 73. Thus, under the Smith holding, the plaintiffs' first -party bad faith

claims against Farm Bureau are subject to a ten- year prescriptive period. Notably,

the supreme court granted an application for reconsideration in Texas Brine

following the Smith decision, and issued a per curiam opinion remanding the case to

the district court for reconsideration of its ruling in light of the Smith decision.

Labarre v. Texas Brine Co., LLC, 2018- 1617 ( La. 12/ 10/ 19), 285 So. 3d 479.

Considering the Messinger factors in light of the unique circumstances of this

case, I believe that the trial court' s 1915( B) designation was proper. The trial court' s

decision was based on a previously uncertain area of law, which was later cleared

up by the supreme court, and the supreme court' s clarification of the law means that

plaintiffs' first -party bad faith claims are not prescribed and should not have been

dismissed. As such, for the sake of judicial efficiency and in an effort to avoid

piecemeal litigation, I would consider the appeal of this matter immediately.

Nevertheless, in the absence of a La. C. C. P. art. 1915( B) designation of

finality by the trial court, the plaintiffs are free to ask the trial court to reconsider its

ruling in light of subsequent developments, including the supreme court' s

clarification of the law in this area in Smith. See Texas Brine, 2018- 1617 at p. 1,

285 So. 3d at 480, FNI; see also La. C. C. P. art. 1915( B)( 2) '( explaining that in the

absence of a designation of finality, " any such order or decision shall not constitute

a final judgment for the purpose of an immediate appeal and may be revised at any

time prior to rendition of the judgment adjudicating all the claims and the rights and

liabilities of all the parties."); Texas Brine, 2018- 1617 at p. 1, 285 So. 3d at 480, FNI .

I The court in Smith stated that "[ t]he issue of the proper prescriptive period for third -party bad faith claims against an
insurer is not before the court, and our opinion does not purport to address that issue." Id., 19- 00052 at p. 16, 285
So. 3d at 1073, FN 9.

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