Tom C. Miller v. Jose Gustavo Erazo, Gabisa Insurance Company and Liberty Mutual Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 0247

TOM C. MILLER

VERSUS

JOSE GUSTAVO ERAZO, GABISA INSURANCE COMPANY AND
LIBERTY MUTUAL INSURANCE COMPANY

Judgment Rendered: SEP 212023

On Appeal from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court Docket Number C665938, Sec. 24

Hon. Donald R. Johnson, Judge Presiding

Willie G. Johnson, Jr. Counsel for Plaintiff/Appellant,
Jennifer O. Robinson Tom C. Miller
Sophia J. Riley
Derek E. Elsey
Baton Rouge, Louisiana

Paul D. Oberle, Jr. Counsel for Defendant/Appellee,
Byron A. Richie National General Insurance Co. and
Patrick W. Woolbert Imperial Fire & Casualty Insurance
Shreveport, Louisiana Co.

Keith S. Giardina Counsel for Defendant/Appellee,
Heather A. D' Antonio Liberty Personal Insurance Co.
David A. Safranek
Brad J. Brumfield
Baton Rouge, Louisiana

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.

PENZATO, J.

The plaintiff, Tom C. Miller, appeals from the trial court' s July 19, 2021

judgment granting a motion to dismiss filed by Imperial Fire and Casualty

Insurance Company.' After reviewing the record, this court determined that

Imperial was not named as a defendant in Mr. Miller' s petition for damages, filed

on January 31, 2018. No other pleading in the record named Imperial as a party to

this proceeding. However, National General Insurance Company, a named

defendant, filed an answer to a first supplemental and amending petition for

damages purportedly filed by Mr. Miller. National' s answer indicated that Imperial

was named in Mr. Miller' s first supplemental and amending petition for damages.

National also alleged in its answer that it " shares common ownership" with

Imperial.

This court, ex proprio, issued an order on August 11, 2023, directing the

Clerk of Court for the 191h Judicial District Court to supplement the appellate

record with, among other things, the first supplemental and amending petition for

damages filed by Mr. Miller and the answer filed by Imperial.

The Clerk of Court for the 19th Judicial District Court supplemented the

appeal record, as instructed, on August 21, 2023. Neither of the requested

pleadings was included in the supplemental appellate record, evidencing to this

court that Mr. Miller did not file a first supplemental and amending petition for

damages into the record with the Clerk of Court for the 19t' Judicial District Court.

Imperial is not named as a party defendant in this proceeding and does not appear
in any other capacity. Thus, there is no pending suit against Imperial, and Imperial

lacked standing to file a motion to dismiss Mr. Miller' s suit pursuant to La. C. C. P.

t This case arises out of a car accident that occurred in February 2017.

N

arts. 1471 and 1473. 2

Although a party' s lack of standing is generally raised by a peremptory

exception of no right of action, this court may notice such on its own motion

pursuant to La. C. C. P. art. 927( B). See La. C. C.P. art. 927 and Rowland a BASF,

20- 0278 ( La. App. 1st Cir. 3/ 29/21), 323 So. 3d 26, 34, wit denied, 21- 00607 ( La.

6/ 22/ 21), 318 So. 3d 706. See also Abdul -Salaam v. " ole Food Market, Inc., 15-

356 ( La. App. 5th Cir. 11/ 19/ 15), 179 So. 3d 846, 848 ( An appellate court may

raise the issue of standing on its own motion.)

For these reasons, we vacate the judgment granting the motion to dismiss

filed by Imperial Fire and Casualty Insurance Company. This matter is remanded

to the trial court for further proceedings consistent with this opinion. All costs of

this appeal are assessed to Tom C. Miller.3

VACATED AND REMANDED.

2 Imperial' s motion to dismiss alleged that Mr. Miller violated the trial court' s April 28, 2021 order
to appear for his deposition. Because Imperial lacked standing to file the motion to dismiss, we do
not address Liberty Personal Insurance Company' s argument on appeal that the judgment granting
Imperial' s motion dismissed Mr. Miller' s suit in its entirety, not simply Mr. Miller' s claims against
mover, Imperial.

3 This memorandum opinion is issued in accordance with Uniform Rules—Courts of Appeal Rule 2-
16. 2( A)( 2) and ( 4).

3