Jeanne Marie Ehlers and Lisa Gethers Armour, Individually and on Behalf of Decedent, Frederick Louis Gethers v. Ports America Gulfport, Inc.

JEANNE MARIE EHLERS * NO. 2023-CA-0575
AND LISA GETHERS
ARMOUR, INDIVIDUALLY *
AND ON BEHALF OF COURT OF APPEAL
DECEDENT, FREDERICK *
LOUIS GETHERS FOURTH CIRCUIT
*
VERSUS STATE OF LOUISIANA
*******
PORTS AMERICA
GULFPORT, INC., ET AL.

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-02151, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Karen K. Herman
******
(Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins,
Judge Karen K. Herman)

Edwin A. Ellinghausen, III
Erin H. Boyd
BLUE WILLIAMS, L.L.C.
3421 N. Causeway Blvd., Suite 900
Metairie, LA. 70002

Richard P. Salloum (pro hac vice)
FRANKE & SALLOUM, PLLC
10071 Lorraine Road
Gulfport, MS. 39503

COUNSEL FOR DEFENDANT/APPELLEE, SSA GULF, INC. LEGAL
SUCCESSOR TO RYAN STEVEDORING COMPANY AND RYAN WALSH
STEVEDORING COMPANY

E. Scott Hackenberg
John L. Henchy
HENCHY VERBOIS & HACKENBURG
7737 Old Hammond Highway, Suite B-4
Baton Rouge, LA. 70809

COUNSEL FOR DEFENDANT/APPELLANT, THE LOUISIANA
INSURANCE GUARANTY ASSOCIATION

AFFIRMED IN PART; APPEAL CONVERTED TO AN APPLICATION
FOR SUPERVISORY WRIT; WRIT GRANTED; RELIEF DENIED

MAY 16, 2024

KKH This is an asbestos exposure case. Intervenor/defendant-in-reconvention, the
RLB
SCJ Louisiana Insurance Guaranty Association (“LIGA”), appeals: 1) the March 15,

2022 judgment denying LIGA’s motion for summary judgment; and 2) the May

17, 2023 judgment granting a motion for summary judgment in favor of defendant,

SSA Gulf, Inc., legal successor to Ryan Stevedoring Company and Ryan Walsh

Stevedoring Company (collectively, “SSA Gulf” referring to SSA Gulf and its

legal predecessors), and denying LIGA’s exception of lack of subject matter

jurisdiction.

For the reasons that follow, we affirm the March 15, 2022 judgment denying

LIGA’s motion for summary judgment, and we affirm, in part, the May 17, 2023

judgment granting summary judgment in favor of SSA Gulf. We convert the

appeal of the denial of LIGA’s exception of lack of subject matter jurisdiction to

an application for supervisory writ. The writ is granted, and the relief requested is

denied.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In 2021, the Ehlers/Gethers family (“plaintiffs”) filed suit against numerous

defendants alleging that Frederick Gethers (“Mr. Gethers”) was exposed to

1

asbestos while working at the Port of New Orleans from 1947 to 1979. Plaintiffs

allege that Mr. Gethers was diagnosed with mesothelioma in January 2021, and

died a short time later.

SSA Gulf employed Mr. Gethers from 1957 to 1969, and from 1972 to 1978.

SSA Gulf is named as a defendant in this action as Mr. Gethers’ employer. As

SSA Gulf correctly asserts, the relevant time period for the action against SSA

Gulf ended on September 1, 1975, the date when mesothelioma became a covered

occupational disease under the Louisiana Workers’ Compensation Act

(“LWCA”).1

Plaintiffs maintain that SSA Gulf was insured for workers’ compensation

and employer’s liability (“WC/EL”) insurance by American Mutual Liability

Insurance Company (“AMLICO”) from 1958 to 1970, and by Employers National

Insurance Company (“ENIC”) from 1970 to 1987. After AMLICO and ENIC

became insolvent, LIGA assumed its statutory obligation to SSA Gulf pursuant to

La. R.S. 22:2051, et seq. (formerly La. R.S. 22:1375, et seq).

In March 2021, LIGA agreed to provide a defense to SSA Gulf subject to a

reservation of rights, asserting all defenses available under the pertinent policies.

In April 2021, LIGA asserted a defense claiming that the AMLICO and ENIC

policies issued to SSA Gulf contained an exclusion (“Exclusion”), which required

an occupational cancer claim to be filed within thirty six months of the expiration

of the policies. Mr. Gethers’ action was not filed within that time frame. In May

1 Prior to September 1, 1975, tort claims against an employer for occupational asbestos-related

cancers were allowed in Louisiana. With the amendment of La. R.S. 23:1031.1(A) in 1975,
mesothelioma is included as an occupational disease under the LWCA. (See 1975 La. Acts No.
583).

2

2021, LIGA filed a petition for intervention asserting coverage issues against SSA

Gulf.

In January 2022, LIGA filed a motion for summary judgment denying any

coverage obligation pursuant to the 36-month Exclusion for claims arising out of

an occupational disease contained in the Coverage B section of the AMLICO and

ENIC policies. LIGA avers that pursuant to the Exclusion, plaintiffs’ claims were

not timely.

As discussed in more detail below, LIGA was unable to produce the actual

policies issued to SSA Gulf in connection with this matter. Rather, in support of

its motion for summary judgment, LIGA relied on certain circumstantial evidence

including a National Council on Compensation Insurance (“NCCI”) Standard Form

WC/EL Policy (issued to an unrelated insured), which does include the subject

Exclusion. It was LIGA’s contention that as members of the NCCI, all WC/EL

policies issued by AMLICO and ENIC would have utilized this Standard Form

Policy.

The NCCI Standard Form Policy provides, in pertinent part:

DECLARATIONS

3. Coverage A of this policy applies to the workmen’s compensation
law and any occupational disease law of each of the following
states: LA (Emphasis added).

INSURING AGREEMENTS

COVERAGE A - WORKMEN’S COMPENSATION
TO PAY promptly when due all compensation and other benefits
required of the insured by the workmen’s compensation law.

COVERAGE B - EMPLOYERS’ LIABILITY
TO PAY on behalf of the insured all sums which the insured shall
become legally obligated to pay as damages because of bodily injury
by accident or disease, including death at any time resulting
therefrom, sustained in the United States of American, its territories or

3

possessions, or Canada by any employee of the insured arising out of
and in the course of his employment by the insured either in
operations in a state designated in Item 3 of the declarations or in
operations necessary or incidental hereto.

DEFINITIONS

(a) Workmen’s Compensation Law. The unqualified term
“workmen’s compensation law” means the workmen’s compensation
law and any occupational disease law of a state designated in Item 3
of the declarations, but does not include those provisions of any such
law which provide non- occupational disability benefits.

EXCLUSIONS

This policy does not apply ...

(e) under coverage B, to bodily injury by disease unless prior
to thirty-six months after the end of the policy period written claim is
made or suit is brought against the insured for damages because of
such injury or death resulting therefrom; (Emphasis added).

SSA Gulf opposed LIGA’s motion for summary judgment arguing that

LIGA did not meet its burden of proving that the Exclusion was actually contained

in any of the WC/EL policies issued to SSA Gulf by AMLICO and/or ENIC during

the relevant time period. In a judgment rendered March 15, 2022, the trial court

denied LIGA’s motion for summary judgment, finding that “there are genuine

issues of material fact as to whether the insurance policies issued to SSA Gulf . . .

contain the 36-month exclusion in Louisiana.”

In April 2022, SSA Gulf filed a reconventional demand against LIGA

asserting that SSA Gulf settled with plaintiffs, and thus, LIGA was obligated to

indemnify/reimburse SSA Gulf to the extent of its statutory limits. In the

alternative, SSA Gulf sought judgment against LIGA as assignee of plaintiffs’

claims against LIGA.

In March 2023, SSA Gulf filed a motion for summary judgment as to

LIGA’s coverage obligations, raising the issue of the Exclusion previously set

4

forth in LIGA’s motion for summary judgment. SSA Gulf once again advanced

the argument that LIGA could not produce evidence to carry its burden of proof

that any policies issued by AMLICO and ENIC to SSA Gulf contained the

Exclusion.

In the alternative, SSA Gulf argued: 1) if the trial court were to find a fact

issue as to the contents of the policies (namely, the Exclusion), then Coverage A of

the policies may reasonably be interpreted to include plaintiffs’ claims; and 2) if

the trial court finds Coverage A inapplicable, then the Exclusion should be

considered an impossible or unenforceable condition due to mesothelioma’s

decades-long latency period.

LIGA opposed the motion for summary judgment. SSA Gulf and LIGA

essentially relied on the same evidence submitted in connection with LIGA’s

motion for summary judgment.

In April 2023, in response to the alternative arguments raised in SSA Gulf’s

motion for summary judgment, LIGA filed an exception of lack of subject matter

jurisdiction, rejecting SSA Gulf’s claim that if coverage is denied based on the

Coverage B Exclusion, then a claim could still be brought under the Coverage A

section of the policy. LIGA argued therein that Coverage A does not provide

“fallback” tort coverage because the insurer’s obligation under Coverage A only

applies to pay compensation and benefits under the LWCA. LIGA further noted

that plaintiffs have not asserted a claim for compensation under the LWCA.2

The matters were brought for hearing on April 27, 2023. Judgment was

rendered May 17, 2023, denying LIGA’s exception of lack of subject matter

jurisdiction. The trial court also granted SSA Gulf’s motion for summary

2 SSA Gulf concedes that this is a tort action.

5

judgment, designating it as a final judgment pursuant to La. C.C.P. art. 1915(B)(1).

On that issue, the judgment provides, in pertinent part:

The Court finds that there are no genuine issues of material fact.
The Court further finds that SSA Gulf is entitled to judgment as a
matter of law on the grounds that LIGA has failed to sustain its
burden of proving that the Workmen’s Compensation and Employers’
Liability (WC/EL) insurance policies issued to SSA Gulfs legal
predecessors, Ryan Stevedoring Company and Ryan Walsh
Stevedoring Company, by American Mutual Liability Insurance
Company (“AMLICO”) and/or by Employers National Insurance
Company (“LIG”) between 1957 and September 1, 1975 contained a
36-month exclusion (a/k/a Exclusion (e)) in Louisiana. In the
alternative, the Court finds no genuine issues of material fact and as a
matter of law that: (1) Coverage A of the relevant AMLICO and
ENIC WC/EL policies provides coverage for the occupational disease
tort claims brought against SSA Gulf by the Jeanne Marie Ehlers
plaintiffs and the related indemnity claim brought by SSA Gulf
against LIGA to recover settlement funds paid to the Jeanne Marie
Ehlers plaintiffs; and (2) the 36-month exclusion (a/k/a Exclusion (e))
is an impossible condition for long-latency occupational disease
claims, including the mesothelioma contracted by the decedent,
Frederick Gethers, which manifested more than 40 years from the
time of Mr. Gethers’ alleged occupational exposure to asbestos, and
which therefore does not preclude coverage under the relevant
AMLICO and ENIC WC/EL policies for the tort claims brought
against SSA Gulf by the Jeanne Marie Ehlers plaintiffs and the related
indemnity claim brought by SSA Gulf against LIGA to recover
settlement funds paid to the Jeanne Marie Ehlers plaintiffs. (emphasis
added).

LIGA’s appeal of both judgments followed.

LAW AND ANALYSIS

Jurisdictional issue

LIGA seeks review of the March 15, 2022 judgment denying its motion for

summary judgment. LIGA also seeks review of the May 17, 2023 judgment

granting SSA Gulf’s motion for summary judgment and denying LIGA’s exception

of lack of subject matter jurisdiction.

“Appellate courts have a duty to determine sua sponte, whether the court has

proper jurisdiction to consider the merits of an appeal filed in the court.” Joseph v.

6

Wasserman, 2021-0138, p. 3 (La. App. 4 Cir. 12/17/21), 334 So.3d 413, 416.

Pursuant to La. C.C.P. art. 2083, “an appellate court’s jurisdiction extends to final

judgments and judgments made expressly appealable by law.” McGaha v Franklin

Homes, Inc., 2021-0244, p. 24 (La. App. 4 Cir. 2/4/22), 335 So.3d 842, 858 (citing

Riley v. Plaquemines Par. Sheriff’s Office, 2020-0262, pp. 3-4 (La. App. 4 Cir.

9/9/20), 365 So.3d 38, 40). “A final judgment that determines the merits in whole

or in part is a final judgment.” La. C.C.P. art. 1841. An interlocutory judgment is

one that determines “preliminary matters in the course of the action.” Id.

It is well-established that, a judgment denying a motion for summary

judgment is not appealable. Elysian, Inc. v. Neal Auction Co., Inc., 2020-0674, p.

7 (La. App. 4 Cir. 7/21/21), 325 So.3d 1075, 1082 (citing La. C.C.P. art. 968).

However, it is generally held that where cross-motions for summary judgment

raise the same issues, courts can review the denial of a summary judgment in

addressing the appeal of the granting of the cross-motion for summary judgment.

See Williams v BestComp, Inc, 2022-00100 (La. 12/9/22), 354 So.3d 1211 n. 9;

Marseilles Homeowners Condo Ass’n v. Broadmoor, LLC, 2012-1233 (La. App. 4

Cir. 2/27/13), 111 So.3d 1099, 1103 n. 2. Although the motions for summary

judgment at issue here were not rendered at the same time, they are, in effect,

cross-motions as they concern the same coverage issues and the same evidence.

As such, we will review the judgment denying LIGA’s motion for summary

judgment in this appeal.

We also note that the judgment denying LIGA’s exception of lack of subject

matter jurisdiction is an interlocutory judgment. As this Court explained in Pizzati

v. DS Services of America, Inc., 2021-0344, pp. 17-18 (La. App. 4 Cir. 3/23/22),

336 So.3d 943, 955,

7

“It is well-settled that although an interlocutory judgment may
not itself be immediately appealable, it is nevertheless subject to
review by an appellate court when an appealable judgment is rendered
in the case.” Elysian, Inc. v. Neal Auction Co., 2020-0674, p. 9 (La.
App. 4 Cir. 7/21/21), 325 So.3d 1075, 1083 (citing People of the
Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752, 753
(1968); Phillips v. Gibbs, 2010-0175, p. 4 (La. App. 4 Cir. 5/21/10),
39 So.3d 795, 798). “[A]n appellant is entitled to seek review of all
adverse interlocutory judgments prejudicial to them, in addition to
review of the final judgment when an unrestricted appeal is taken.”
Treas v. Koerner, unpub., 2019-0390, p. 11 (La. App. 4 Cir.
11/13/19), 2019 WL 5982386, at *5 (quoting Maqubool v. Sewerage
& Water Bd. of New Orleans, 2018-0572, p. 3 (La. App. 4 Cir.
11/14/18), 259 So.3d 630, 632-33) (emphasis added).

In the present matter, however, the appeal from the judgment granting

summary judgment as to coverage in favor of SSA Gulf is not an “unrestricted

appeal.” Rather, pursuant La. C.C.P. art. 1915(B)(1), it is a restricted appeal

limited to the issues raised.3 As such, plaintiffs may not seek review of the

interlocutory judgment on the denial of the exception of lack of subject matter

jurisdiction within this appeal. See McGaha, 2021-0244, p. 28, 335 So.3d at 860.

“The proper procedural vehicle to seek review of an interlocutory judgment

that is not immediately appealable is an application for supervisory writ.” Waiters

v. deVille, 2020-0556, p. 1 (La. App. 4 Cir. 12/30/20), 365 So.3d 544, 548 (quoting

Delahoussaye v. Tulane Univ. Hosp. & Clinic, 2012-0906, p. 4 (La. App. 4 Cir.

2/20/13), 155 So.3d 560, 562). It is well-established that “we have the discretion

to convert an improperly filed appeal to an application for supervisory review and

then exercise our supervisory jurisdiction.” Crosby v Sahuque Realty, Co., Inc.,

3 La. C.C.P. art. 1915(B)(1) provides:

When a court renders a partial judgment or partial summary judgment or sustains
an exception in part, as to one or more but less than all of the claims, demands,
issues, or theories against a party, whether in an original demand, reconventional
demand, cross-claim, third-party claim, or intervention, the judgment shall not
constitute a final judgment unless it is designated as a final judgment by the court
after an express determination that there is no just reason for delay.

8

2023-0012, p. 7 (La. App. 4 Cir. 8/14/23), 370 So.3d 1206, 1211 (citing Stelluto v.

Stelluto, 2005-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39).

As further stated in Succession of Thompson, 2020-0536, p. 2 (La. App. 4

Cir 12/30/20), 366 So.3d 307, 310,

[T]his Court has converted a non-appealable judgment to an
application for supervisory writs when the following two conditions
have been met: (1) [t]he motion for appeal has been filed within the
thirty-day time period allowed for the filing of an application for
supervisory writs under La. Unif. R. Ct. App. 4-3; and (2) [w]hen the
circumstances indicate that an immediate decision of the issue sought
to be appealed is necessary to ensure fundamental fairness and judicial
efficiency, such as where reversal of the trial court's decision would
terminate the litigation.”

In the case sub judice, we find that both conditions were met. LIGA filed

this appeal within thirty days of the May 17, 2023 judgment. Additionally, the

judgment denying LIGA’s exception of lack of subject matter jurisdiction concerns

the applicability of the Coverage A section of the policies in question, which is

inextricably linked to the issues raised in the motions for summary judgment. As

such, we find that an immediate decision is necessary to ensure fundamental

fairness and judicial efficiency. Accordingly, we convert the appeal of the denial

of LIGA’s exception of lack of subject matter jurisdiction to an application for

supervisory writ.

Assignments of Error

LIGA presents the following assignments of error:

1. The trial court erred in granting SSA Gulf’s motion for summary judgment

because the evidence submitted was insufficient and inadmissible;

2. The trial court erred in denying LIGA’s motion for summary judgment

because LIGA established through competent evidence that: a) any policy

issued by AMLICO or ENIC to SSA Gulf would have included the NCCI

9

Standard Form Policy; b) the only coverage available under that form was

Coverage B; and c) Coverage B is subject to the Exclusion;

3. The trial court erred in overruling LIGA’s exception of lack of subject

matter jurisdiction as to SSA Gulf’s Coverage A claims;

4. The trial court erred in weighing expert testimony in connection with the

Coverage A claim;

5. The trial court erred in finding that Coverage A applied to a claim for

reimbursement of a tort settlement;

6. The trial court erred in not enforcing the Exclusion.

For ease of discussion, we will review the assignments of error by issue, i.e., the

motions of summary judgment and the exception of lack of subject matter

jurisdiction.

The Motions for Summary Judgment

In denying LIGA’s motion for summary judgment, and granting SSA Gulf’s

motion for summary judgment, the trial court concluded that LIGA failed to

sustain its burden of proving that the policies issued to SSA Gulf contained the

Exclusion. Based on our thorough review of the record, and for the reasons

assigned below, we find no error in that determination.

“A summary judgment is reviewed on appeal de novo, with the appellate

court using the same criteria that govern the trial court’s determination of whether

summary judgment is appropriate; i.e., whether there is any genuine issue of

material fact, and whether the movant is entitled to judgment as a matter of law.”

Planchard v. New Hotel Monteleone, LLC, 2021-00347, pp. 2-3 (La. 12/10/21),

332 So.3d 623, 625 (citations omitted).

10

The summary judgment procedure is favored; and the procedure “is

designed to secure the just, speedy, and inexpensive determination of every

action.” La. C.C.P. art. 966(A)(2). “After an opportunity for adequate discovery, a

motion for summary judgment shall be granted if the motion, memorandum, and

supporting documents show that there is no genuine issue as to material fact and

that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.

966(A)(3).

A shifting burden of proof is set forth in La. C.C.P. art. 966(D)(1), which

provides:

The burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue that is
before the court on the motion for summary judgment, the mover’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court the absence of factual support for one or more
elements essential to the adverse party's claim, action, or defense. The
burden is on the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law.

A genuine issue is one as to which reasonable persons could disagree, “[i]f

on the state of the evidence, reasonable persons could reach only one conclusion,

there is no need for trial on that issue[,]” and summary judgment is appropriate.

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d

730, 751. “A fact is material when its existence or nonexistence may be essential

to the plaintiffs [sic] cause of action under the applicable theory of recovery; a fact

is material if it potentially insures or precludes recovery, affects a litigant's ultimate

success, or determines the outcome of the legal dispute.” Chapital v. Harry

Kelleher & Co., Inc., 2013-1606, p. 5 (La. App. 4 Cir. 6/4/14), 144 So.3d 75, 81

(citation omitted).

11

As this Court stated in Tomlinson v. Landmark Am. Ins. Co., 2015-276, pp.

7-8 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 159,

In a civil case, the plaintiff must prove her case by a
preponderance of the evidence and the burden may be met by direct or
circumstantial evidence. When circumstantial evidence is relied on,
the evidence taken as a whole must exclude every other reasonable
hypothesis with a fair amount of certainty but does not have to negate
every other possible hypothesis. Cotton v. Delta Queen Steamboat
Co., 09-0736, p. 5 (La. App. 4 Cir. 1/6/10); 36 So.3d 262, 266.
Circumstantial evidence may be used to defeat a motion for summary
judgment. Wood v. Becnel, 02-1730, p. 6 (La. App. 4 Cir. 2/26/03);
840 So.2d 1225, 1227.

“Whether an insurance policy provides for, or precludes, coverage as a

matter of law is an issue that can be resolved within the framework of a motion for

summary judgment.” Certain Underwriters at Lloyd’s of London v Duxworth

Roofing and Sheetmetal, Inc. 2022-0821, p. 7 (La. App. 4 Cir. 7/18/23), 370 So.3d

1144, 1149 (quoting Wagner v. Tammany Holding Co., LLC., 2013-0374, p. 7 (La.

App. 4 Cir. 10/9/13), 135 So.3d 77, 82).

“An insurance policy is a contract between the parties and should be

construed employing the general rules of interpretation of contracts set forth in the

Louisiana Civil Code.” Choice Foundation v. Law Industries, LLC, 2021-0431, p.

4 (La. App. 4 Cir. 3/2/22), 336 So.3d 501, 505. Regarding policy exclusions, this

Court recently stated:

[A]lthough an insurer can limit its liability if, in so doing, this does
not result in a conflict with statutory provisions or public policy, the
insurer bears the burden of proof if it claims that a loss falls within a
policy exclusion. Choice Found. v. Law Indus., LLC, 2021-0431, p. 4
(La. App. 4 Cir. 3/2/22), 336 So.3d 501, 505 (quoting Perniciaro v.
McInnis, 2018-0113, p. 10 (La. App. 4 Cir. 9/7/18), 255 So.3d 1223,
1231). “[A] provision which seeks to narrow the insurer’s obligation
is strictly construed against the insurer ....” Reynolds v. Select Props.,
1993-1480 (La. 04/11/94), 634 So.2d 1180, 1183 (citing Garcia v. St.
Bernard Sch. Bd., 576 So.2d 975, 976 (La. 1991); Breland v.
Schilling, 550 So.2d 609, 610 (La. 1989)).

12

Lewis v State Nat’l Ins. Co., Inc., 2022-0693, p. 24 (La. 4 Cir. 5/19/23, 368 So.3d

653, 668,

Here, LIGA seeks to deny coverage based on the Exclusion. Pursuant to the

authority cited above, LIGA bears the burden of proving that the Exclusion

applies.

LIGA maintains that any policies issued by AMLICO and ENIC to SSA

Gulf would have contained the Exclusion. It is undisputed that LIGA could not

produce the actual policies issued by AMLICO and/or ENIC to SSA Gulf in the

State of Louisiana. As the statutory obligor for insolvent insurance companies,

LIGA receives policy documentation from either the liquidator or from the

insolvent company. In some cases, as in the present case, the policies are no

longer available.4

In support of its motion for summary judgment, SSA Gulf relied on

documents produced by LIGA in a separate litigation in which SSA Gulf and

LIGA were parties.5 SSA Gulf issued requests for production of documents to

LIGA, seeking all AMLICO and ENIC polices issued to SSA Gulf for operations

in Louisiana between January 1, 1958 and December 31, 1975. LIGA produced

numerous policies, partial policies and other documents, but LIGA was unable to

produce any policies issued by AMLICO or ENIC for SSA Gulf’s operations in

Louisiana that contained the Exclusion.

In lieu of the actual policies, LIGA introduced certain secondary and

circumstantial evidence in support of its motion for summary judgment and in
4 The record reflects that AMLICO became insolvent in 1989, and ENIC in 1994.

5 See Clarence Wilson, Sr. v Cooper/T. Smith Stevedoring Co., Inc. et al. No. 2020-0813 c/w

2020-1730. Division D on the docket of Civil District Court for the Parish of Orleans. Mr.
Wilson, also employed by SSA Gulf as a longshoreman in New Orleans, filed suit for his pre-
September 1975 exposure to asbestos.

13

opposition to SSA Gulf’s motion for summary judgment. Specifically, LIGA

submitted a copy of a blank Standard Form Policy, which contained the Exclusion.

LIGA also introduced an NCCI Standard Form Policy (containing the Exclusion)

issued by AMLICO to an unrelated insured for operations in Louisiana. LIGA

contends that this exhibit demonstrates that the Standard Form Policy was in use

by AMLICO prior to 1984.

In support of its reliance on the Standard Form Policy, LIGA presented the

affidavit of Donald T. DeCarlo (“Mr. DeCarlo”), former Vice President and

General Counsel for the NCCI from 1972 to 1986. Mr. DeCarlo stated that the

NCCI was licensed in the State of Louisiana from 1956 to 1974, and as members

of the NCCI, AMLICO and ENIC would have been required to use the 1954

Standard Form Policy that contained the Exclusion.6 Mr. DeCarlo explained that

in his search, he found no approved NCCI form endorsements that would have

allowed a member to waive or modify the Exclusion. However, Mr. DeCarlo

further stated that a Standard Form Policy could be modified by endorsement if

approved by the NCCI.

LIGA also introduced the affidavit of its claims examiner, James Richard

Mayfield (“Mr. Mayfield”), attaching certain policy-related documents from

LIGA’s files. After conducting a digital and physical search of LIGA’s records,

Mr. Mayfield acknowledged that he was unable to locate a WC/EL policy issued to

SSA Gulf by AMLICO or ENIC in the State of Louisiana that contained the

Exclusion. However, LIGA maintains that the other policy-related documentation

(attached to Mr. Mayfield’s affidavit) demonstrates that the Standard Form Policy

was in use by both AMLICO and ENIC in Louisiana between 1957 and 1984.

6 The Exclusion was eliminated when the Standard Form Policy was revised in 1984.

14

Mr. Mayfield’s affidavit included the following exhibits:

Exhibit A-1, a 1965 AMLICO Standard Form Policy, containing the

Exclusion. SSA Gulf objected based on the fact that the policy was issued to an

unrelated insured and was also written to cover certain personnel (clerical

employees, drivers, etc.) having no similarity to the stevedoring operations of SSA

Gulf. LIGA asserts that this policy establishes that the Standard Form Policy was

in use by AMLICO in Louisiana prior to 1984.

Exhibit A-2, a 1976 policy (partially illegible), which appears to be a policy

issued by ENIC to SSA Gulf. SSA Gulf objected to its relevance, asserting that the

policy does not include the Exclusion.7 Additionally, SSA Gulf noted that the

policy was written in 1976, while SSA Gulf became immune from plaintiffs’ tort

claims after September 1, 1975.

Exhibit A-3, a 1978 policy issued by Employers Casualty Co (“ECC”), an

affiliate of ENIC, to SSA Gulf for operations in North Carolina. SSA Gulf

objected to the relevancy of this document because: 1) ECC is not an insurer at

issue here; 2) the named insured on the policy is Stevedores, Inc., a corporation

unrelated to SSA Gulf;8 3) the policy covers operations in North Carolina; and 4)

the policy period is beyond the relevant exposure period, which ended September

1, 1975. LIGA counters, arguing that same Standard Form Policy would have

been used in both Louisiana and North Carolina, and also that the policy

demonstrates that an affiliate of ENIC used the Standard Form language in a policy

issued to SSA Gulf.
7 LIGA acknowledges that the document was produced by the ENIC Liquidator and it does not

include any Standard Form Policy language.
8 We note that the policy is issued to “Stevedores, Inc. A Joint Venture c/o Ryan-Walsh

Stevedoring Co.” As previously noted, Ryan-Walsh Stevedoring Co. is a predecessor of SSA
Gulf.

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Exhibit A-4, an excerpt from a Commercial General Liability (“CGL”)

policy issued by ENIC to SSA Gulf. SSA Gulf again raised relevancy here as the

policy is not a WC/EL policy.

Exhibit A-5, an excerpt of the Exclusion contained in a blank Standard Form

Policy. SSA asserted that there is no evidence to suggest that this Exclusion was

contained in a policy issued by AMLICO or ENIC to SSA Gulf.

SSA Gulf opposed the documentation submitted by LIGA, arguing that this

secondary evidence was insufficient to satisfy LIGA’s burden to show the

existence and applicability of the Exclusion. In support of their motion for

summary judgment, SSA Gulf introduced the August 26, 2021 deposition

testimony of LIGA’s claims adjuster, Malcolm Twiner, Jr. (“Mr. Twiner”).9 Mr.

Twiner testified that he never saw an AMLICO or ENIC policy issued to SSA Gulf

in Louisiana during the years in question that contained the Exclusion. He did

identify a policy issued outside of Louisiana in 1976 that contained the Exclusion.

Mr. Twiner further stated that any policy can add an endorsement to remove an

exclusion. He noted that most policies have some type of endorsement.

SSA Gulf further argued that Mr. Mayfield, also deposed in the Clarence

Wilson case on October 13, 2021, testified that he never saw an AMLICO or ENIC

policy issued to SSA Gulf applicable to Louisiana for exposures up to 1975 that

contained the Exclusion. Moreover, Mr. Mayfield reiterated Mr. Twiner’s

testimony that Standard Form Policies can have amendments or endorsements.

LIGA also asserts in this appeal that the trial court erred in granting SSA

Gulf’s motion for summary judgment because SSA Gulf failed to carry its burden

to prove that policies were issued by AMLICO and ENIC to provide coverage to

9 Mr. Twiner’s deposition was taken in the Clarence Wilson case, referenced above.

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SSA Gulf, (citing Numa C Hero & Sons, LLP Through Hero v. Brit UW Limited,

2022-0405, p. 6 (La. App. 4 Cir. 12/2/22), 356 So.3d 480, 483, holding that “the

party seeking insurance coverage bears the burden not only proving a relevant,

existing policy, but also, coverage under that policy.”). We find no merit in

LIGA’s argument.

Although the actual policies from the two insolvent insurers could not be

produced, the record before us demonstrates that AMLICO and ENIC provided

coverage to SSA Gulf for the years in question. Mr. Mayfield testified that after

his search, no AMLICO policies directly pertaining to SSA Gulf were located.

However, he explained that records found in LIGA’s possession pertaining to

AMLICO coverages issued to SSA Gulf consist of index cards provided by the

AMLICO Liquidator.10 LIGA has acknowledged that the index cards indicate that

WC policies were provided by AMLICO to SSA Gulf from the 1930’s through

July 1, 1972. Mr. Mayfield further stated in his affidavit that certain non-policy

documents in LIGA’s possession, including correspondence and affidavits, suggest

that ENIC may have afforded coverage to SSA Gulf for Louisiana operations

beginning January 1, 1970 through 1986.

Mr. Mayfield also testified that LIGA’s records show that since 2005, LIGA

accepted approximately 83 cases for SSA Gulf in similar occupational disease

cases. A copy of LIGA’s spreadsheet of accepted cases was attached to Mr.

Mayfield’s deposition. Mr. Twiner acknowledged in his deposition testimony that

LIGA accepted approximately 60 cases for SSA Gulf.

10 Counsel for LIGA explained at trial that the index cards from AMLICO show the year, policy

number, type of coverage, and dates of coverage.

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For the foregoing reasons, and pursuant to our de novo review, we find no

error on the part of the trial court in denying LIGA’s motion for summary

judgment and granting summary judgment in favor of SSA Gulf. The record

before us demonstrates that SSA Gulf carried its burden to show the existence of

coverage from AMLICO and ENIC for the years in question. Additionally, the

record contains no evidence that any policy issued to SSA Gulf by AMLICO or

ENIC contained the Exclusion. Thus, LIGA failed to carry its burden of showing

the existence and applicability of the Exclusion.

In concluding that LIGA failed to carry its burden to show that the relevant

policies contained the Exclusion, the alternative rulings set forth in the May 17,

2023 judgment (concerning the applicability of Coverage A and whether the

Exclusion should be considered an impossible or unenforceable condition) are

rendered moot. Thus, we pretermit any discussion on those issues.

The Exception of Lack of Subject Matter Jurisdiction

LIGA argued in its exception that SSA Gulf’s alternative claim under the

Coverage A section of the policies would fall under the exclusive jurisdiction of

the OWC. However, our finding that Coverage A is not implicated here pretermits

any further examination of this claim. Accordingly, after reviewing the trial

court’s interlocutory judgment under our supervisory jurisdiction, the writ is

denied.

DECREE

For the foregoing reasons, we affirm the March 15, 2022 judgment denying

LIGA’s motion for summary judgment. We affirm, in part, the May 17, 2023

judgment granting summary judgment in favor of SSA Gulf. We convert the

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appeal of the denial of LIGA’s exception of lack of subject matter jurisdiction to

an application of supervisory writ. We grant the writ and deny the relief requested.

AFFIRMED IN PART; APPEAL CONVERTED TO AN APPLICATION
FOR SUPERVISORY WRIT; WRIT GRANTED; RELIEF DENIED

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