Ritchie Stanley v. William Potts, River Parish Contractors, Inc., Specialty Welding and Turnarounds, LLC, and Zurich American Insurance Company, and Markel American Insurance Company

NOT DESIGNATED FOR PUBLICATION

Tau
STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2020 CA 1315

RITCHIE STANLEY

VERSUS

WILLIAM POTTS, RIVER PARISH CONTRACTORS, INC., SPECIALTY
WELDING AND TURNAROUNDS, LLC, ZURICH AMERICAN
INSURANCE COMPANY, AND MARKEL AMERICAN INSURANCE
COMPANY

Judgment Rendered: " JUN 0 4 2021

Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Docket Number C662640

Honorable Trudy M. White, Judge Presiding

John Mark Fezio Counsel for Plaintiff/Appellant,
Jennifer R. Rust Ritchie Stanley
Richard P. Voorhies III
William A. Barousse
New Orleans, LA

Patrick J. McShane Counsel for Defendants/ Appellees,

Danica B. Denny William Potts, River Parish Contractors, Inc.,
Kathleen P. Rice Specialty Welding and Turnarounds, LLC,
Phoebe A. Hathorn Zurich American Insurance Company, and
New Orleans, LA Markel American Insurance Company

Peter J. Giarrusso Counsel for Intervenor,
Louisiana Department of Justice State of Louisiana, Office of the
Baton Rouge, LA Governor, Division of Administration,
Office of Risk Management

BEFO PPLE, C.J., WELCH, AND CHUTZ, JJ.

WHIPPLE, C.J.

This appeal in a rear -end collision case arises from an action filed by
plaintiff against, inter alia, the driver of the rear -ending vehicle and the rear -

ending driver' s employer, asserting against the employer claims of both vicarious

liability for its employee' s negligence and independent negligence of the employer

in hiring, training, and supervising its employee. The district court granted

defendants' motion for partial summary judgment and dismissed plaintiff's claims

of independent negligence against the employer. For the following reasons, we

dismiss the appeal for lack of appellate jurisdiction.

FACTS AND PROCEDURAL HISTORY

On October 23, 2017, Ritchie Stanley filed a petition for damages, alleging

that on November 7, 2016, while he was traveling northbound on Interstate 55, the

vehicle he was operating was rear-ended by the vehicle driven by William Potts,

causing Stanley to sustain severe and disabling injuries. Named as defendants

were: Potts; Specialty Welding and Turnarounds, LLC (" Specialty Welding"); and

River Parish Contractors, Inc. (" RPC"). Stanley contended that Potts was an

employee of Specialty Welding and/ or RPC and was acting in the course and scope

of his employment at the time of the accident, thus rendering Specialty Welding

and/ or RPC vicariously liable for Potts' s negligence under the theory of respondeat

superior. Additionally, Stanley averred that the independent negligent acts of

Specialty Welding and/ or RPC were also a proximate cause of the accident,

namely: allowing an unskilled and unsafe driver to operate the vehicle; failing to

determine the ability of the driver; failing to instruct, train, or supervise Potts as to

the proper use of the vehicle; and negligently hiring and retaining Potts.

Stanley also named as defendants Zurich American Insurance Company

Zurich"), the liability insurer of Specialty Welding and RPC at the time of the

accident, and Markel American Insurance Company (" Markel"), the excess

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liability insurer of RPC. Additionally, the State of Louisiana, Office of the

Governor, Division of Administration, Office of Risk Management (" the State")

intervened in the suit to recover workers' compensation benefits paid to Stanley as

a result of the accident at issue.

Thereafter, Stanley, Potts, RPC, Specialty Welding, Zurich, and the State

filed a joint motion for partial dismissal, seeking dismissal of Stanley' s claims

against Zurich, partial dismissal of Stanley' s claims against Potts, RPC, and

Specialty Welding, and dismissal of the State' s intervention. By order dated

March 24, 2020, Stanley' s claims against Zurich were dismissed, and his claims

against Potts, RPC, and Specialty Welding were dismissed in part, with an express

reservation of rights against Potts, RPC, and Specialty Welding only to the extent

of collectible insurance in excess of the Zurich policy. Additionally, the State' s

intervention and all claims asserted by Stanley, Potts, RPC, Specialty Welding, and

Zurich as to the intervention were dismissed with prejudice. Thus, Potts, RPC, and

Specialty Welding remained only as nominal defendants to the extent of additional

collectible insurance.

On June 8, 2020, defendants Potts, RPC, Specialty Welding, and Markel

filed a Motion for Partial Summary Judgment, seeking dismissal of Stanley' s

claims of direct negligence against Specialty Welding. Defendants argued that

because Potts was in the course and scope of his employment with Specialty

Welding at the time of the accident, such that Potts' s negligence would be

attributed to Specialty Welding under the theory of vicarious liability, Louisiana

law precluded Stanley from simultaneously maintaining claims of direct

negligence against Specialty Welding.

Following a hearing on the motion, the district court agreed and signed a

judgment dated September 30, 2020, granting the motion for partial summary

judgment and dismissing with prejudice Stanley' s claims of direct negligence

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against Specialty Welding, including his claims that Specialty Welding: allowed

an unskilled and unsafe driver to operate its vehicle; failed to determine the ability

of the driver; failed to instruct, train, and/ or supervise the driver; and negligently

hired and/ or retained Potts. The district court designated the judgment as final for

purposes of immediate appeal pursuant to LSA-C. C. P. art. 1915.

From this judgment, Stanley appeals, contending that the district court erred

in granting summary judgment and dismissing his claims of independent

negligence against Specialty Welding.

APPELLATE JURISDICTION

At the outset, we note that appellate courts have the duty to examine subject

matter jurisdiction sua sponte, even when the parties do not raise the issue.

Advanced Leveling & Concrete Solutions v. Lathan Co., Inc., 2017- 1250 ( La.

App. 11t Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en banc). A partial summary

judgment rendered pursuant to LSA- C. C. P. art. 966( E) may be immediately

appealed during ongoing litigation only if it has been properly certified as final by

the district court. See LSA-C.C.P. art. 1915( A)(3) & ( B); Belleview Estates, LLC

v. Knoll & Dufour Lands LLC, 2019- 1394 ( La. App. Pt Cir. 9/ 21/ 20), So. 3d

2020 WL 5627732, * 4; Templet v. State ex rel Department of Public

Safety and Corrections, 2005- 1903 ( La. App. 1St Cir. 11/ 3/ 06), 951 So. 2d 182,

185. Although the district court designated the partial summary judgment as a

final one pursuant to LSA-C. C. P. art. 1915( B)( 1), that designation is not

determinative of this court' s jurisdiction. Rather, this court' s jurisdiction to decide

this appeal hinges on whether the certification was appropriate. Templet, 951 So.

2d at 185.

Historically, our courts have adopted and followed a policy against multiple

appeals and piecemeal litigation. Louisiana Code of Civil Procedure article 1915

attempts to strike a balance between the undesirability of piecemeal appeals and

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the need for making review available at a time that best serves the needs of the

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

1113, 1122. Thus, in considering whether a judgment is properly designated as

final pursuant to LSA-C. C. P. art. 1915( B)( 1), a court must take into consideration

judicial administrative interests as well as the equities involved. Templet, 951 So.

2d at 185. Because the district court herein did not give reasons for the

certification, this court must make a de novo determination of whether the

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

The factors to be considered in determining whether a partial judgment

should be certified as appealable include: ( 1) the relationship between the

adjudicated and the unadjudicated claims; ( 2) the possibility that the need for

review might or might not be mooted by future developments in the district court;

3) the possibility that the reviewing court might be obliged to consider the same

issue a second time; and ( 4) miscellaneous factors such as delay, economic and

solvency considerations, shortening the time of trial, frivolity of competing claims,

expense, and the like. However, the overriding inquiry is whether there is no just

reason for delay. R.J. Messinger, Inc., 894 So. 2d at 1122- 1123.

Applying these precepts, we find on de novo review that the partial summary

judgment before us on appeal was improperly certified as a final judgment

pursuant to LSA-C. C. P. art. 1915( B)( 1). Defendants' motion for partial summary

judgment herein requested judgment on only one theory of liability asserted against

Specialty Welding, i.e., whether it could be held liable under claims of independent

negligence in causing the accident based on allegations of improper training,

supervision, hiring, and retaining of Potts. However, the relationship between the

adjudicated claim and the unadjudicated claims does not support the need for

immediate review by appeal of this partial judgment. A determination by this

court as to whether Stanley has or can assert independent negligence claims against

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Rather, there are
Specialty Welding does not resolve the question of liability.

outstanding issues that must be adjudicated in the district court before liability can

be determined, including, in particular, the merits of Stanley' s claim of negligence

on the part of Potts in causing the accident, as well as the fault, if any, of Stanley in

causing the accident. Moreover, because Stanley has dismissed his claims against

Potts, Specialty Welding, and RPC except to the extent of available insurance

coverage, the issue of whether the Markel policy will afford coverage for the

accident in question or whether any policy exclusions apply likewise remain to be

determined before liability can be decided.

Where a partial summary judgment decides only some aspects of a liability

claim, this court has routinely held that the ruling is not one properly certified for
an immediate appeal pursuant to LSA-C. C. P. art. 1915( B)( 1). See Templet, 951

So. 2d at 186; Young, v. City of Plaquemine, 2004-2305 ( La. App. I" Cir. 11/ 4/ 05),

927 So. 2d 408, 412; and Leray v. Nissan Motor Corporation in U. S.A., 2004- 1282

La. App. l st Cir. 6/ 10/ 05), 916 So. 2d 260, 263- 264, writ denied, 2005- 1837 ( La.

1/ 27/ 06), 922 So. 2d 554. Indeed, the need for review of the issue of whether

Stanley can maintain the claim of independent negligence asserted in his petition
against Specialty Welding may be rendered moot by the resolution of the

remaining liability issues. Thus, judicial resources may be wasted by immediate

appeal of this lone negligence issue.

In light of the unresolved liability issues and the procedural posture of this

case, we find that any ruling on the independent negligence issue at this time

would promote piecemeal appeals, causing delay and judicial inefficiency. See

Young, 927 So. 2d at 412. Accordingly, on de novo review, we cannot conclude

that there is no just reason for delay. Hence, we find that the district court

improperly designated the partial summary judgment at issue herein as final
pursuant to LSA- C. C.P. art. 1915( 8)( 1).

ON

Although this court has discretion to convert an appeal to an application for

supervisory writs, we do so only if the appeal would have been timely had it been

filed as a supervisory writ application. Belleview Estates LLC, So. 3d at ,

2020 WL 5627732 at * 5. Because the appeal was not filed within thirty days of

the notice of judgment, the motion for appeal cannot be considered a timely filed

application for supervisory writs under Rule 4- 3 of the Uniform Rules— Courts of

Appeal. Accordingly, we decline to convert the appeal to an application for

supervisory writs. Once a final judgment on the merits of this matter has been

rendered and all issues are properly before this court on appeal, Stanley can seek

appellate review of this partial summary judgment. See LSA- C. C. P. art. 2083( A);

see also Kosak v. Louisiana Farm Bureau Casualty Insurance Company, 2020-

0222 ( La. App. 1St Cir. 12/ 10/ 20), So. 3d , 2020 WL 7258252, * 7.

CONCLUSION

For the above and foregoing reasons, plaintiff' s appeal of the September 30,

2020 partial summary judgment is dismissed for lack of appellate jurisdiction.

Costs of this appeal are assessed one- half to plaintiff, Ritchie Stanley, and one- half

to defendants, William Potts, River Parish Contractors, Inc., Specialty Welding and

Turnarounds, LLC, and Markel American Insurance Company.

APPEAL DISMISSED.

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