Willa M. Montgomery v. US Agencies Casualty Insurance Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-975

WILLA M. MONTGOMERY
VERSUS
USAGENCIES CASUALTY INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2009-1939
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Marc T. Amy, Judges.

APPEAL DISMISSED.

Walter K. Jamison, III
Marjorie B. Breaux
Kraft Gatz Lane Benjamin, LLC
600 Jefferson Street, Suite 410
Lafayette, LA 70501
(337) 706-1818
FOR DEFENDANT/APPELLANT:
National Union Fire Insurance Company of Pittsburgh, PA

Blake R. David
Broussard & David
Post Office Box 3524
Lafayette, LA 70502
(337) 233-2323
FOR PLAINTIFF/APPELLEE:
Willa M. Montgomery

Anthony M. Butler
Law Office of Anthony M. Butler
5420 Corporate Boulevard, Suite 103
Baton Rouge, LA 70808
(225) 926-1810
FOR DEFENDANT/APPELLEE:
USAgencies Casualty Insurance Company

PETERS, Judge.

Upon the lodging of this appeal, this court sua sponte issued a rule to show

cause why the appeal should not be dismissed as having been taken from an

improperly designated partial judgment pursuant to R. J. Messenger, Inc. v.

Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113. The defendant/appellant,

National Union Fire Insurance Company of Pittsburgh, PA, filed a response to this

court’s rule, asserting that the trial court correctly designated the judgment as a final

judgment. For the reasons assigned below, we dismiss the appeal.

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

was a passenger in a vehicle owned by Derrick Corporation. The vehicle in which

plaintiff was a passenger was struck by another vehicle driven by defendant, John

Bonar. The plaintiff filed suit for damages against Mr. Bonar; USAgencies Casualty

Insurance Company, as liability insurance carrier for Mr. Bonar; and the

defendant/appellant, National Union, as uninsured/underinsured motorist carrier for

Derrick Corporation.

Thereafter, National Union filed a motion for summary judgment seeking a

dismissal of the plaintiff’s claims against it on the basis that the

uninsured/underinsured motorist rejection form was valid. The plaintiff filed a cross-

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.

Following a hearing, the trial court issued a judgment denying National

Union’s motion for summary judgment and granting the plaintiff’s cross-motion for

summary judgment. The judgment also held the following, “The Court finds that

there is no just reason for delay[,] and therefore[,] this matter is designated a final

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judgment for purposes of immediate appeal, pursuant to [La.Code Civ.P. art.

1915(B)].” After judgment was entered, National Union filed a motion for appeal,

and the instant appeal was lodged in this court.

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., 08-11, p. 3 (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:

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 R. J. Messinger, 894 So.2d 1113, 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 (3d

Cir. 1975).

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

should not be dismissed, National Union argues that its appeal should be allowed to

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proceed because the judgment as to which appellate review is being sought was

properly certified as a final judgment. In consideration of the factors set forth in R.

J. Messinger, 894 So.2d 1113, National Union argues that the judgment is dispositive

of the issue of whether the National Union policy provides uninsured/underinsured

motorist coverage for the plaintiff’s claims. National Union contends that the issue

raised on appeal is not related to the other claims remaining in this case, that of

liability and damages, and will not be raised in connection with the litigation of the

remaining issues. National Union argues that this court will not have to reconsider

the issue of the validity of the uninsured/underinsured motorist coverage waiver once

it is resolved on appeal. National Union also presents argument that it would suffer

irreparable economic injury if the instant appeal were dismissed. If National Union’s

appeal is dismissed, it argues that it will likely be required to make an unconditional

tender of the uninsured benefits to the plaintiff, and that, if it tenders the benefits,

National Union would not be able to recover the sum paid if this court reversed the

trial court at a later date. Finally, National Union argues that the judgment of which

review is being sought is, in fact, a final judgment in that it determines liability under

La.Code Civ.P. art. 1915(A)(5).

In support of this latter argument, National Union points to this court’s ruling

in Ashmore v. McBride, 09-80 (La.App. 3 Cir. 6/3/09), 11 So.3d 720. We find that

this court’s opinion in Ashmore should not be applied as sought by National Union.

In the published opinion, this court was not presented with the issue of whether the

judgment therein was appealable. Rather, the mention of La.Code Civ.P. art.

1915(A)(5) was in the context of discussing the prior dismissal of a writ application

in that case which had been filed seeking review of the same judgment. Thus, in the

published opinion, no mention is made of whether the appealed judgment had also

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decided liability in favor of the plaintiff, leaving only the issues of damages and

insurance coverage. Thus, we find that Ashmore is distinguishable from the judgment

at issue in the instant appeal as to the appealability of this judgment.

In applying the factors set forth in R.J. Messinger, 894 So.2d 1113, to the

instant case, we find that a reversal of the judgment sub judice will not terminate the

entire litigation. The issues of liability and damages remain. Additionally, National

Union only owes uninsured/underinsured motorist coverage if the plaintiff is able to

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

coverage amount. Thus, the judgment as to which review is currently being sought

may 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 National Union 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 ruling on the cross-motions for 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 appeal at National Union’s cost.

APPEAL DISMISSED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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