Lillian Russell v. New Prime, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-956

LILLIAN RUSSELL, ET AL.
VERSUS
NEW PRIME INC., ET AL

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 206,617
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy H. Ezell, and J. David Painter,
Judges.

APPEAL DISMISSED.

Mary MacConnell Ferry
Allen J. Krouse, III
Frilot, Partridge, Kohnke
1100 Poydras Street, Ste 3600
New Orleans, LA 70163
(504) 599-8000
Counsel for Defendant/Appellant:
RLI Insurance Company

Roy Seale Halcomb, Jr.
Broussard, Bolton, Halcomb
Post Office Box 1311
Alexandria, LA 71309
(318) 487-4589
Counsel for Plaintiff/Appellee:
Lillian Russell
Kenneth Russell
Timothy Russell

Christopher Joseph Aubert
James Philip Meyer
The Aubert Law Firm
506 E. Rutland St.
Covington, LA 70433-3219
(985) 809-2000
Counsel for Defendant/Appellee:
Perry J. Tyler
New Prime, Inc.

Michael Edward Parker
Emile Joseph, Jr.
Allen & Gooch
Post Office Drawer 3768
Lafayette, LA 70502-3768
(337) 291-1350
Counsel for Defendant/Appellee:
Louisiana Insurance Guaranty Assoc.

PICKETT, Judge.

The Plaintiffs-Appellees, Lillian Russell, Kenneth Russell, and Timothy

Russell, move to dismiss the appeal by the Defendant-Appellant, RLI

Insurance Company, Inc. The Russells assert that the issue raised in the appeal

was previously addressed by this court when it affirmed the trial court’s denial

of RLI’s motion for summary judgment. See Lillian Russell, et al. v. New

Prime, Inc., d/b/a Prime, Inc., et al., an unpublished writ opinion bearing

docket number 06-292 (La.App. 3 Cir. 3/22/06). For the reasons assigned

below, we grant the motion to dismiss the appeal.

The Plaintiffs’ suit against the Defendants arises from an accident in

which Laura Russell was killed. The suit alleges, in part, that RLI had issued

one or more insurance policies which covered the accident. One of the policies

involved was an umbrella policy issued by RLI to Reliance National Insurance

Company; prior to the suit, Reliance was declared insolvent.

On July 7, 2005, RLI filed a motion for summary judgment asserting that

its umbrella policy did not require RLI to “drop down” to provide primary

coverage in the place of the insolvent Reliance. Defendants-Third-Party

Plaintiffs, Perry J. Tyler and New Prime, Inc. d/b/a Prime, Inc. (New Prime),

also filed a motion for summary judgment, asserting that RLI provided primary

coverage for the claim asserted in the suit. The trial court denied RLI’s motion

while granting Tyler/New Prime’s motion. RLI then sought supervisory writs

in this court. This court denied the writ application finding no error in the trial

court’s denial of RLI’s motion for summary judgment.

On February 10, 2006, prior to this court’s ruling on their application for

writs, RLI moved the trial court to designate the granting of Tyler/New Prime’s

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motion for summary judgment as final under La.Code Civ.P. art. 1915(B). On

March 1, 2006, the trial court issued an order entitled “Partial Final Judgment”

which provided as follows:

Accordingly, there being no just cause for delay and the Court’s
finding the law and the evidence to be in favor thereof:

IT IS HEREBY ORDERED, ADJUDGED and DECREED that
motion of RLI Insurance Company for summary judgment is
DENIED.

On March 22, 2006, the same day this court denied RLI’s application for

writs, RLI filed a motion for devolutive appeal. The trial court granted the

motion for appeal on March 24, 2006. The Plaintiffs now seek dismissal of

this appeal.

In Smit Land & Marine, Inc. v. WHC, Inc., 05-1254 (La.app. 3 Cir.

5/3//06), 930 So.2d 215, this court vacated a certification of a partial final

judgment, and noted that the designation as final of a partial judgment under

La.Code Civ.P. art. 1915(B) was to be made on a case-by-case basis. Further,

this court observed that the certification as final required the consideration of

the judicial administrative interests and the equities involved and noted the

factors to be considered in making that determination. In that case, the trial

court abused its discretion for “multiple reasons: the existing relationship

between the adjudicated and remaining unadjudicated claims in this case, the

possibility that future case rulings may affect this judgment, and the possibility

that this court may have to consider this same issue in later appeals. See

Curtiss-Wright [Corp. v. Gen. Elec. Co.], 466 U.S. 1[, 100 S.Ct. 1460 (1980)].”

This court also vacated a partial final judgment certification when the

trial court failed to comply with the requirements of La.Code Civ.P. art.

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1915(B), stating “in the absence of certification through express determination

of no just reason for delay and designation as a final judgment by the trial

court, a jurisdictional defect exists.” Woodward v. Cutrer, 01-378 (La.App. 3

Cir. 10/3/01), 796 So.2d 900. In that case, the trial court expressly stated that

the granting of the plaintiff’s motion for summary judgment was to function as

a final judgment, but did not make any express determination that there was no

just reason for delay. Id. at 902.

At the outset, we find that the trial court’s judgment stating “there being

no just cause for delay” is insufficient to satisfy the requirement that the

judgment be designated as final and immediately appealable pursuant to

La.Code Civ.P. art. 1915(B). Assuming arguendo that the trial court did

intend to designate this judgment as final pursuant to this article employing the

above quoted language, the record reveals that the trial court did not provide

express reasons for designating this judgment as final. The supreme court in

R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113,

has held that when a trial court has failed to provide express reasons for

designating a judgment as final and immediately appealable, the appellate court

must conduct a de novo review of the certification.

After conducting this review in the instant case, this court finds no basis

to support a piecemeal appeal of this matter. Inasmuch as we have found that

jurisdiction is not proper pursuant to La.Code Civ.P. art. 1915, we do not

address the arguments set forth by the Plaintiffs in their motion to dismiss. We

hereby dismiss the instant appeal at Appellant’s cost.

APPEAL DISMISSED.

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