Opal Dowden v. Leebo's Stores, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-196

OPAL DOWDEN, ET AL.

VERSUS

LEEBO'S STORES, INC., ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 66,671
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, C.J., Billie Colombaro Woodard, and
Marc T. Amy, Judges.

REVERSED.

Russell L. Potter
Stafford, Stewart, & Potter
P. O. Box 1711
Alexandria, LA 71309
Telephone: (318) 487-4910
COUNSEL FOR:
Defendant/Appellee - Leebo's Stores, Inc.

Kraig Thomas Strenge
P. O. Drawer 52292
Lafayette, LA 70502-2292
Telephone: (337) 261-9722
COUNSEL FOR:
Defendant/Appellant - United Fire & Casualty Insurance Company
Daniel G. Brenner

Bolen, Parker, etc.
P. O. Box 11590
Alexandria, LA 71315-1590
Telephone: (318) 445-8236
COUNSEL FOR:
Defendant/Appellee - Leebo's Stores, Inc.

Scott Westerchil
101 South First Street
Leesville, LA 71446
Telephone: (337) 239-9076
COUNSEL FOR:
Plaintiffs/Appellees - Opal Dowden and W. H. Dowden

James Henry Colvin
Sharp, Henry, etc.
P. O. Box 239
Homer, LA 71040
Telephone: (318) 927-6149
COUNSEL FOR:
Defendants/Appellees - Shop-A-Lott, Inc., Lott Oil Co., Inc., and
Agricultural Excess and Surplus Insurance Co., Inc.

THIBODEAUX, Chief Judge.

In this case, United Fire & Casualty Insurance Company (United) appeals

the granting of a Judgment Notwithstanding the Verdict (JNOV) by the trial judge.

The trial judge granted the JNOV after determining that United breached its duty of

good faith in dealing with its insured, Leebo’s Stores, Inc. (Leebo’s). We disagree

with the trial judge and reverse the judgment.

I.

ISSUES

1) Did the trial judge err in granting the JNOV?

II.

FACTS

On February 15, 2000, Ms. Opal Dowden fell in a hole in the parking lot

of a convenient store. She sued Leebo’s, the company which ran the convenient store,

and Lott Oil Company, Inc. (Lott Oil), as the owner of the store and lot. Leebo’s had

an insurance policy through United. Leebo’s did not name the lessor of the premises

as a named insured on the policy although it was required to do so. United alleged that

the accident was the result of the independent negligence of the lessor and denied

coverage to the lessor. Leebo’s demanded that United provide the lessor with

coverage under the indemnity clause of the lease.

At the outset of this case, the parties were confused as to whether Shop-

A-Lott, Inc. (Shop-A-Lott) or Lott Oil was lessor of the property because the two

names were used interchangeably. However, the evidence later revealed that Lott Oil

owned the gas pumps and supplied gas and diesel to the store, but Shop-A-Lott was

the actual lessor of the lot and the store.

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Lott Oil filed a cross-claim against Leebo’s alleging that the lease

agreement obligated Leebo’s to defend, indemnify, and hold it harmless for claims in

the lawsuit and that it was Leebo’s duty to maintain the premises. Lott Oil also

claimed that Leebo’s was required to, but did not, name it as an additional insured in

its insurance policy with United. Shop-A-Lott also filed a cross-claim against Leebo’s

demanding indemnity coverage. United hired attorney Russell Potter to represent

Leebo’s. Leebo’s also hired attorney Dan Brenner as additional counsel and filed a

cross-claim against United alleging that United acted in bad faith by failing to

indemnify and defend Leebo’s and by refusing to provide coverage to the lessor.

Shop-A-Lott’s and Lott Oil’s cross-claims were settled prior to trial. Leebo’s cross-

claim against United was tried before the jury at the same time as the tort suit.

After trial on the matter, the jury ruled in favor of Ms. Dowden. Ms.

Dowden has not appealed. The jury also ruled that United had not acted in bad faith

and did not award attorney fees, damages, or penalties to Leebo’s on its cross- claim

against United. The trial judge granted a JNOV, ruling that United had breached its

duty of good faith and awarded attorney fees of $16,319.02. United now appeals the

judgment granting the JNOV.

III.

LAW AND DISCUSSION

Judgment Notwithstanding the Verdict

Louisiana Code of Civil Procedure Article 1811 provides the authority

for a JNOV. In Davis v. Wal-Mart Stores, Inc., 00-445 pp. 4-5 (La. 11/28/00), 774

So.2d 84, 89 (quoting, in part, Smith v. Davill Petroleum Co. Inc., 97-1596, p. 4

(La.App. 1 Cir. 12/9/98), 744 So.2d 23, 26-27), the Louisiana Supreme Court set out

the standard for granting a JNOV:

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A JNOV is warranted when the facts and inferences
point so strongly and overwhelmingly in favor of one party
that the court believes that reasonable jurors could not
arrive at a contrary verdict. The motion should be granted
only when the evidence points so strongly in favor of the
moving party that reasonable men could not reach different
conclusions, not merely when there is a preponderance of
evidence for the mover. If there is evidence opposed to the
motion which is of such quality and weight that reasonable
and fair-minded men in the exercise of impartial judgment
might reach different conclusions, the motion should be
denied. In making this determination, the court should not
evaluate the credibility of the witnesses and all reasonable
inferences or factual questions should be resolved in favor
of the non-moving party.

The standard of review for a JNOV on appeal is a
two part inquiry. In reviewing a JNOV, the appellate court
must first determine if the trial court erred in granting the
JNOV. This is done by using the aforementioned criteria
just as the trial judge does in deciding whether or not to
grant the motion. After determining that the trial court
correctly applied its standard of review as to the jury
verdict, the appellate court reviews the JNOV using the
manifest error standard of review.

(citations omitted).

After reviewing the evidence, we find the trial court erred in granting the

JNOV, as reasonable people could have arrived at the decision reached by the jury.

Review of Evidence

The issue before the jury was whether United was in bad faith for failing

to indemnify and provide a defense to Leebo’s and the lessor of the store. The jury

determined that United was not in bad faith and did not award attorney fees.

As to Leebo’s, the evidence is clear that it was provided with a defense

by United. United assigned Mr. Potter to defend claims brought against Leebo’s. Mr.

Potter filed answers to Ms. Dowden’s original and amended petitions and defended

Leebo’s on these claims at trial. He also filed answers to Lott Oil’s and Shop-A-

Lott’s claims against Leebo’s. Moreover, Mr. Brenner, Leebo’s additional counsel,

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testified that Mr. Potter provided Leebo’s with a complete defense. Mr. Brenner

agreed that the only issue that Mr. Potter did not defend was the issue of coverage of

the lessor under the insurance policy.

As to Lott Oil and Shop-A-Lott, the evidence shows that on May 11,

2001, United sent a letter to Leebo’s stating that after examining the lease agreement

between Leebo’s and Shop-A-Lott, there was no duty to provide a defense or

indemnity to Shop-A-Lott because Shop-A-Lott created the hazard that injured the

claimant. It claimed that the lessor replaced the gas pumps on the premises, which

required breaking up and replacing the concrete in the parking lot where the claimant

fell. It concluded that the indemnity language of the lease did not require it to

indemnify the lessor for its independent acts of negligence. United also relied on the

fact that the lessor was not named as an additional insured, as required by the

insurance policy, to deny coverage.

After receiving United’s letter, Leebo’s sent several letters to United

regarding evidence on where, it claimed, the accident occurred and urged United to

change its position on the issue of coverage. Leebo’s argues that if United had

investigated the accident, it would have determined the correct area where the

claimant fell and the lessor would have been notified that indemnity and a defense

were available to it by operation of the lease. Therefore, the lessor would not have

been forced to file a cross-claim against Leebo’s and Leebo’s would not have incurred

attorney fees in defending the claims of the lessor. This argument is without merit for

several reasons.

First, although Leebo’s requested that United indemnify and defend Lott

Oil, Lott Oil was not the lessor under the lease, so it was not entitled to indemnity and

a defense. Shop-A-Lott was the actual lessor, but only entered into the suit two

months prior to trial and settled its cross-claim against Leebo’s prior to trial.

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Furthermore, Leebo’s did not name Lott Oil or Shop-A-Lott as additional insured’s

under the lease agreement. Therefore, United had several valid reasons to deny

coverage to the lessor, and was not in bad faith for denying coverage. Moreover, the

evidence reveals that Mr. Brenner’s defense of Leebo’s was predominantly on the

issue of coverage. The cross-claim that Mr. Brenner filed and letters he wrote on

Leebo’s behalf were all directed toward the issue of coverage of the lessor by United.

Generally, an insured can recover attorney fees associated with its defense of the

underlying action, but not with its litigation of the coverage issue. Steptore v. Masco

Constr. Co., Inc., 93-2064 (La. 8/18/94), 643 So.2d 1213. Mr. Brenner’s defense was

directed toward getting United to defend and indemnify the lessor, not toward the

underlying action. Therefore, he cannot recover attorney fees for this work.

Second, Leebo’s argument that if United had conducted an investigation,

it would have discovered the correct hole, is flawed. The record reveals conflicting

testimony regarding which hole caused Ms. Dowden’s accident. The jury did not

indicate which hole caused the accident; it simply apportioned the fault among the

parties. The jury could have determined that either of the possible holes caused the

accident or that repairing the parking lot was the responsibility of all the defendants.

For us to determine which hole the jury decided caused the accident is pure

speculation.

From this evidence, the jury concluded that United was not in bad faith

in dealing with Leebo’s and attorney fees were not warranted. The trial judge granted

a JNOV, stating that if United had investigated or simply taken the position that it

would defend the lessor, “it is more probable than not there would have been no cross-

claim by Shop-A-Lott.” A JNOV is proper when the facts and inferences point so

strongly and overwhelmingly in favor of one party that reasonable jurors could not

arrive at a different verdict. VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La. 11/28/01),

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801 So.2d 331. The facts and inferences in this case are, at best, conflicting and do

not point so overwhelmingly in favor of one party that reasonable jurors could not

arrive at a contrary verdict. Therefore, we conclude that the trial judge erred in

granting the JNOV.

IV.

CONCLUSION

For these reasons, the JNOV granted by the trial court is reversed and the

jury’s verdict is reinstated. All costs of this appeal are assessed to appellee, Leebo’s

Stores, Inc.

REVERSED.

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