Oscar Gray, Jr. v. Mel Credeur

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1113

OSCAR GRAY, JR.

VERSUS

MEL CREDEUR, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 07-3966
HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Joel E. Gooch
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1210
Counsel for Defendant/Appellee:
NCMIC Insurance Company

Edward J. Walters, Jr.
Darrel J. Papillion
Walters, Papillion, Thomas, Cullens, LLC
12345 Perkins Road, Building One
Baton Rouge, LA 70810
(225) 236-3636
Counsel for Plaintiff/Appellant:
Oscar Gray, Jr.

Jeanne Roslyn Lemmon
Cowan & Lemmon, LLP
P. O. Box 1030
Hahnville, LA 70057
(985) 783-9849
Counsel for Defendant/Appellee:
Mel Credeur

DECUIR, Judge.

Oscar Gray appeals from the trial court’s grant of summary judgment in favor

of NCMIC Insurance Company (NCMIC), the professional liability insurer of Mel

Credeur, a Louisiana attorney. For the following reasons, we affirm the trial court’s

grant of the summary judgment.

FACTS

On November 28, 2004, Oscar Gray was injured while working as a pipe fitter.

In January 2005, Gray hired Mel Credeur, an attorney, to represent him. On

November 28, 2005, Credeur filed suit on behalf of Gray in Bossier Parish. The

accident occurred in Caddo Parish. Defendant’s exception of improper venue was

granted when Credeur failed to appear for the hearing. Gray received no notice of

these events. In August 2006, Gray heard on the television news that Credeur’s law

license had been suspended. Gray made inquiry about his suit and found that it had

been transferred to the court of proper venue, where an exception of prescription had

been filed based on lack of service in the proper venue within the prescriptive period.

In 2007, Gray filed this malpractice action against Credeur and his insurer

NCMIC. NCMIC filed a motion for summary judgment alleging that it provided a

claims made policy for Credeur for the period from May 2005 to May 2006 and that

no coverage applied to Gray’s 2007 claim. The trial court granted the motion for

summary judgment. This appeal ensued.

DISCUSSION

The sole issue on appeal is whether the trial court erred in granting summary

judgment in favor of NCMIC. Gray argues that NCMIC’s claims-made policy violates

La.R.S. 22:868 (formerly La.R.S. 22:629). We disagree.

We review a summary judgment determining insurance coverage de novo,

using the same criteria for these insurance issues as those governing the trial court’s

consideration of whether summary judgment is appropriate. Schroeder v. Bd. of

Supervisors of La. State Univ., 591 So.2d 342 (La.1991). In the instant case, the

nature of the policy is not disputed, the only issue is whether such a claims-made

policy violates La.R.S. 22:868 (formerly 22:629).

This Louisiana Supreme court, in the context of a medical malpractice claim,

determined that such claims-made policies do not violate the statute or public policy.

Hood v. Cotter, 08-215 (La. 12/2/08), 5 So.3d 819. The court said:

This court has previously examined claims-made policies on two
occasions to determine whether the claims-made policies in those cases
violated public policy. Anderson v. Ichinose, 98-2157 (La. 9/8/99), 760
So.2d 302, and Livingston Parish Sch. Bd. v. Fireman’s Fund Am. Ins.
Co., 282 So.2d 478 (La.1973). In both of those cases, we held that
claims-made policies are not per se impermissible as against public
policy.

Id. at 825.

The court continued:

Here, the claims-made policy denies coverage to defendant for
plaintiff’s claim, but it does not itself limit plaintiff’s right of action. To
hold otherwise would effectively convert a claims-made policy into an
occurrence policy and change the bargained-for exchange between the
insurer and the insured. As this court has previously held, claims-made
policies are not per se impermissible or against public policy, and we do
not interpret La. R.S. 22:629 as prohibiting the claims-made policy
provision that makes coverage dependent upon a claim being first made
and reported during the policy period. As in Anderson, the event that
triggered policy coverage simply did not occur during the policy period.
La. R.S. 22:629, which does not mandate coverage, but prohibits any
condition, stipulation or agreement in an insurance contract from
limiting a right of action against the insurer to a period of less than one
year from the time when the cause of action accrues, was not violated
as the claims-made coverage provision did not impermissibly limit
plaintiff’s cause of action.

Id. at 830.

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Gray attempts to distinguish Hood on several grounds. We find that all but one of

these arguments is addressed in Hood itself. We find the remaining argument that

this case should be treated differently because it involves legal malpractice to be

unpersuasive. Hood involved a medical malpractice claim and we find its language

to be broad enough to encompass legal malpractice claims as well. Accordingly, the

trial court’s grant of summary judgment is affirmed.

AFFIRMED.

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

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