Jonathon Guillory v. Progressive Security Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1056 AND 09-1508

JONATHON GUILLORY
VERSUS
PROGRESSIVE SECURITY INS., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-1743
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Elizabeth A. Pickett,
Judges.

APPEALS CONSOLIDATED AND DISMISSED.

Matthew C. Nodier
Walsh & Bailey
Post Office Box 3157
Baton Rouge, LA 70821
(225) 383-8649
FOR DEFENDANT/APPELLANT:
American Home Assurance Company

Brendan P. Doherty
Gieger, Laborde & Laperouse
701 Poydras Street, Suite 4800
New Orleans, LA 70139-4800
(504) 561-0400
FOR DEFENDANT/APPELLANT:
American Home Assurance Company

Joseph R. Pousson, Jr.
Plauché, Smith & Nieset
Post Office Box 1705
Lake Charles, LA 70602
(337) 436-0522
FOR DEFENDANT/APPELLEE:
Progressive Security Insurance Company

Richard E. Wilson
Cox, Cox & Filo
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
FOR PLAINTIFF/APPELLEE:
Jonathon Guillory

Claude P. Devall
Newman, Hoffoss & Devall
1830 Hodges Street
Lake Charles, LA 70601
(337) 439-5788
FOR PLAINTIFF/APPELLEE:
Jonathon Guillory

Kelly E. Heinen
Attorney at Law
200 West Congress, Suite 650
Lafayette, LA 70501
(337) 235-5656
FOR INTERVENORS/APPELLEES:
New Hampshire Insurance Company
Cox Communications, Lafayette

COOKS, Judge.

On September 3, 2009, this court issued a rule for the appellant to show cause,

by brief only, why the appeal in this court’s docket number 09-1056 should not be

dismissed as “having been taken from a partial judgment not designated immediately

appealable pursuant to La.Code Civ.P. art. 1915(B) and without express reasons

pursuant to R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 113.”

The defendant/appellant, American Home Assurance Company (American), filed a

response to this court’s rule on September 17, 2009, asserting that the trial court had,

subsequent to this court’s rule to show cause, signed an amended judgment

designating as final the judgment of which appellate review is being sought. The

plaintiff, Jonathon Guillory, filed his reply on September 28, 2009, submitting no

opposition to allowing this appeal to proceed but noting some discrepancies with

American’s argument. For the reasons assigned below, we dismiss the appeals.

The instant litigation arises out of a vehicular collision, wherein the plaintiff

was operating a truck owned by Cox Enterprises. The plaintiff sued the other driver,

Yvette Clark; Progressive Security Insurance Company, as insurer of Clark; and

American Home Assurance Company, as uninsured/underinsured motorist insurer for

the Cox truck that the plaintiff was operating. Subsequently, Cox Communications,

Lafayette and New Hampshire Insurance Company intervened.

Thereafter, the plaintiff filed a motion for summary judgment seeking a

declaration that the uninsured/underinsured motorist rejection form at issue was

invalid, and therefore, uninsured/underinsured motorist coverage was in effect at the

time of the accident. American filed a cross-motion for summary judgment seeking

a finding that the uninsured/underinsured motorist rejection was valid.

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Following a hearing, the trial court issued a judgment granting the plaintiff’s

motion for summary judgment. American timely filed a motion for new trial, and

following a subsequent hearing, the trial court denied American’s motion for

summary judgment and American’s motion for new trial. Subsequent to the trial

court’s rulings, American filed an application for supervisory relief seeking review

of the denial of their motion for summary judgment, and the first appeal was lodged

in this court docketed under number 09-1056. American also filed a motion to certify

the judgment granting the plaintiff’s motion for summary judgment as final. On

September 1, 2009, the trial court signed an amended judgment, which states the

following:

Pursuant to La. Code of Civil Procedure arts. 1911 and 1915, the Court
finds no just reason for delay, and accordingly, the Court finds that this
Judgment [the February 25, 2009 judgment granting the plaintiff’s
motion for summary judgment] should be considered FINAL and
immediately appealable. This Court further signed a judgment dated
June 16, 2009[,] denying the Motion for Summary Judgment and Motion
for New Trial filed by defendant, American Home Assurance Company.
This judgment should also be considered FINAL and immediately
appealable pursuant to the above[-]listed articles.

After the trial court entered the above-quoted judgment, American filed another

motion for appeal. Thereafter, a second appeal was lodged in this court bearing

docket number 09-1508. In the interest of judicial efficiency, we consolidate the two

pending appeals, docketed in this court under numbers 09-1056 and 09-1508.

In this case, the trial court did not provide express reasons for its order that

designated the partial summary judgment as final for appeal purposes. In Fakier v.

State of La., Bd. Of Sup’rs for Univ. Of La. Sys., 08-111(La.App. 3 Cir. 5/28/08), 983

So.2d 1024, 1027, this court set forth the standard of review applicable in this

instance as follows:

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The proper standard of review for an order designating a judgment as
final and immediately appealable, when the order is accompanied by
explicit reasons for the certification, is whether the trial court abused its
discretion. However, if the trial court fails to give explicit reasons for
the certification, the appellate court should conduct a de novo
determination of whether the certification was proper. 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).

In response to this court’s order that appellants show cause why the appeal

should not be dismissed, American admits that the ruling at issue does not contain

express reasons for its designation as immediately appealable. American argues that

the appeal should be maintained because the litigation would be terminated if the trial

court’s ruling is reversed. In opposition, the plaintiff contends that a reversal would

not terminate the litigation because the plaintiff’s claim for bad faith handling will

proceed independent of the determination on uninsured/underinsured motorist

coverage. Additionally, there is a workers’ compensation intervention claim pending.

American argues that a reversal of the trial court’s ruling would “presumably” dismiss

the workers’ compensation intervention claim.

The plaintiff directs this court to the recent dismissal of an appeal seeking

review of a judgment granting a motion for partial summary judgment finding that

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underinsured/uninsured motorist coverage was provided. In Spencer v. Uong, 08-

1548 (La.App. 3 Cir. 3/11/09), the trial court designated its ruling as appealable and

gave supplemental reasons for its ruling, stating “The court believes the legal issue

of coverage is clear: the circumstances here would result in UM coverage, assuming

that the plaintiff proves damages in the amount sufficient to reach the UM policy. If

the damages are certain, there is no reason to protract the litigation.” 08-1548, pp 1-

2. This court dismissed the appeal finding that if the plaintiff failed to prove damages

in an amount sufficient to invoke the UM coverage, the UM carrier would be

absolved of liability.

American distinguishes the instant suit from Spencer by stating that the

American policy is written “on a primary basis. Thus, if Jonathan Guillory receives

any award at trial, coverage under the AHAC policy will be presumably implicated

from ‘dollar one’ in the event that there is no coverage.” American’s Reply Brief at

2. American goes on to recognize in a footnote that they will be entitled to various

offsets. American does not explain how the triggering of their

uninsured/underinsured coverage would be any different from that of Spencer. If the

plaintiff does not prove damages over what the policy limits were of Clark, as the

insurer of the other driver in the accident, American will not pay anything. Thus, the

judgment of which American is seeking review may be mooted by future

developments in the trial court.

In applying the R.J. Messinger factors to the instant case, we find that a

reversal of the judgment sub judice, which granted a motion for partial summary

judgment, will not terminate the entire litigation. As discussed above, bad faith

handling and workers’ compensation intervention claims will remain, even if we were

to reverse the trial court. Additionally, the judgment finds that the American policy

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provides uninsured/underinsured motorist coverage if the plaintiff is able to establish

damages in an amount sufficient to reach the uninsured/underinsured coverage

amount. The judgment may also be rendered moot by future developments in the trial

court. For example, if at trial the plaintiff fails to prove damages in an amount

sufficient to invoke the uninsured/underinsured motorist coverage, then American

may never be required to pay any portion of the damage claim.

We find that judicial resources would be unnecessarily expended by the

appellate review of the partial summary judgment at this time, considering the

possibility of a later appeal involving the adjudication of the remaining claims. Thus,

we find that this matter is not ripe for immediate appeal and that the judgment at issue

in this case was improperly certified as a final, immediately appealable judgment.

Rather, we find that review of this ruling can be made upon the rendition of the final

judgment adjudicating all remaining issues in this action. Therefore, we hereby

dismiss the instant appeals at appellant’s cost.

APPEALS CONSOLIDATED AND DISMISSED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.

Rule 2-16.3 Uniform Rules, Court of Appeal.

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