Kevin Tate v. State Farm Mutual Auto Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-811

KEVIN TATE
VERSUS
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
ET AL.

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 67202-A
HONORABLE J. LARRY VIDRINE, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Michael G. Sullivan, Judges.

APPEAL DISMISSED.

Jeffrey Michael Bassett
Patrick Craig Morrow, Sr.
Morrow, Morrow, Ryan & Bassett
Post Office Drawer 1787
Opelousas, LA 70507
(337) 948-4483
COUNSEL FOR PLAINTIFF/APPELLEE:
Kevin Tate

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Mark Reese Pharr, III
Galloway, Johnson, Tomkins, Burr & Smith
4021 Ambassador Caffery, #175
Lafayette, LA 70503
(337) 735-1760
COUNSEL FOR DEFENDANT/APPELLANT:
ASRC Constructors, Inc.

Matthew Joseph Hill, Jr.
Attorney at Law
4010 W. Congress, Suite 207
Lafayette, LA 70506
(337) 989-8100
COUNSEL FOR DEFENDANTS/APPELLEES:
State Farm Mutual Automobile Insurance Company
James Fontenot

Vernon Ed McGuire, III
Plauche', Smith & Nieset
Post Office Drawer 1705
Lake Charles, LA 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
Progressive Security Insurance Company

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SULLIVAN, Judge.

This court issued, sua sponte, a rule ordering the defendant-appellant,

ARSC Constructors, Inc. (ASRC), to show cause, by brief only, why its appeal

in this matter should not be dismissed as having been taken from a judgment

that was improperly designated as a final, appealable judgment pursuant to

La.Code Civ.P. art. 1915(B). On July 28, 2008, this court received ASRC’s

response to the rule. For the reasons given herein, we hereby dismiss the

appeal.

The plaintiff-appellee, Kevin Tate, filed the instant suit seeking damages

arising from an automobile accident wherein his vehicle was struck by a

vehicle driven and owned by defendant, James Fontenot, an employee of

ASRC. Tate and ASRC filed cross motions for summary judgment on the issue

of whether Fontenot was in the course and scope of his employment at the time

of the accident.

Following a hearing, the trial court granted Tate’s motion for summary

judgment finding that Fontenot was in the course and scope of his employment

at the time of the accident. The trial court also denied ASRC’s motion for

summary judgment seeking to declare that Fontenot was not in the course and

scope of his employment. In addition, the trial court designated the judgment

at issue as final pursuant to La.Code Civ.P. art. 1915(B). Upon the lodging of

the record in this appeal, this court issued the rule sub judice.

Louisiana Code of Civil Procedure Article 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, 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

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court after an express determination that there is no reason for
delay.

Although the trial court designated the ruling at issue as final, the court

gave no reasons for the designation as required in La.Code Civ.P. art.

1915(B)(1). Therefore, this court must conduct a de novo review of whether

the certification was proper pursuant to R.J. Messinger, Inc. v. Rosenblum, 04-

1664 (La. 3/2/05), 894 So.2d 1113. In Messinger, the Louisiana Supreme

Court listed the non-exclusive factors for considering whether a partial

judgment should be certified as appealable. The factors include:

1) The relationship between the adjudicated and unadjudicated
claims; 2) The possibility that the need for review might or might
not be mooted by future developments in the trial court; 3) The
possibility that the reviewing court might be obliged to consider
the 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.

Id. at 1122, citing Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d

360, 364 (3d Cir. 1975).

Recently, this court utilized the factors listed in R.J. Messinger, 894

So.2d 1113, to find that the trial court improperly designated the appealed

partial judgment as final and dismissed the appeal in Fakier v. State, Bd. of

Supervisor[s] for the Univ. of La. Sys., 08-111 (La.App. 3 Cir. 5/28/08), 983

So.2d 1024. In Fakier, the plaintiff filed suit against her employer alleging

several free-speech related claims. The trial court sustained an exception of no

cause of action and dismissed only one of the plaintiff’s claims. In designating

the judgment final, the trial court merely concluded that there was no just

reason for delay but failed to give specific reasons.

On review, this court found that the partial judgment would not

terminate the suit, and that the same parties would continue to litigate the

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plaintiff’s remaining claims. This court also stated that all of the plaintiff’s

claims arose out of the same operative facts and future developments in the

trial court could moot this court’s review. Finally, this court found that

“judicial administration has clearly been negatively affected because the

remainder of the case has presumably been delayed pending the outcome of

this appeal.” Id. at 1030.

Similarly, in the instant case, in granting ASRC’s appeal, the trial court

gave no specific reasons for designating its judgment as final, other than

stating that there is no just reason for delay. In applying the R.J. Messinger

factors to the instant case, we find that the adjudicated partial judgment does

not terminate the suit nor will the reversal of this ruling. The judgment is

merely a legal determination of Fontenot’s status at the time of the accident

that results in ASRC remaining in this litigation as potentially vicariously

liable for the actions of its employee.

Moreover, although there is no possibility of this court having to

consider this same issue a second time, the judgment may be rendered moot by

future developments in the trial court. For example, if judgment is rendered

finding no fault on the part of Fontenot in causing this accident, ASRC will

also be absolved of liability.

Accordingly, based upon these reasons, we find that the judgment at

issue in this appeal was improperly certified as a final, immediately appealable

judgment, and we hereby dismiss this appeal at appellant’s cost.

APPEAL DISMISSED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.

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