Brian Mullen v. State Farm Mutual Automobile ins.co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-351

BRIAN MULLEN

VERSUS

STATE FARM MUTUAL AUTO INSURANCE
COMPANY, STARR INDEMNITY & LIABILITY
COMPANY, GEICO CASUALTY COMPANY,
AND VINCENT C. ROCO

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NUMBER 2016-2314
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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SHANNON J. GREMILLION

JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie,
Judges.

APPEALS DISMISSED
WITHOUT PREJUDICE.

Ralph G. Breaux
Nathan Gaudet
Perrier & Lacoste, LLC
One Canal Place
365 Canal Street, Suite 2550
New Orleans, Louisiana 70130
(504) 212-8820
Counsel for Defendant/Appellant:
Starr Indemnity & Liability Company

Richard D. Chappius, Jr.
Voorhies & Labbé
700 St. John Street, 5th Floor
Lafayette, Louisiana 70501
(337) 232-9700
Counsel for Defendant/Appellant:
Axis Surplus Insurance Company

Duane L. Cochenour
Hall, Booth & Smith, PC
191 Peachtree Street, NE Ste. 2900
Atlanta, Georgia 30303
(404) 954-5000
Counsel for Defendant/Appellant:
Axis Surplus Insurance Company

Gregory Marceaux
Marceaux Law Firm, LLC
2901 Hodges Street
Lake Charles, Louisiana 70601
(337) 310-2233
Counsel for Plaintiff/Appellee:
Brian Mullen

Joseph R. Pousson, Jr.
Plauche, Smith & Nieset, LLC
1123 Pithon Street
Lake Charles, Louisiana 70601
(337) 436-0522
Counsel for Defendants/Appellees:
State Farm Mutual Automobile Insurance Company
Vincent C. Roco

David P. Salley
Stephen C. Resor
Amy D. Hotard
Salley, Hite, Mercer & Resor, LLC
One Canal Place
365 Canal Street, Suite 1710
New Orleans, Louisiana 70130
(504) 566-8800
Counsel for Intervenor:
Great American Assurance Insurance Company

Benjamin H. Vaughan
Ryan Smith
White & Williams, LLP
1650 Market Street
One Liberty Place, Suite 1800
Philadelphia, Pennsylvania 19103
(215) 864-6804
Counsel for Intervenor:
Great American Assurance Insurance Company

John P. Wolff, III
Collin J. LeBlanc
Sydnee D. Menou
Keogh, Cox & Wilson, Ltd.
701 Main Street
Baton Rouge, Louisiana 70802
(225) 383-3796
Counsel for Defendant/Appellant:
Scottsdale Insurance Company

GREMILLION, Judge.

Defendants/Appellants, Scottsdale Insurance Company (Scottsdale), Starr

Indemnity & Liability Company (Starr), and Axis Surplus Insurance Company

(Axis), filed three separate appeals seeking review of a January 9, 2019 judgment

which denied the various motions for summary judgment filed on behalf of these

three insurance companies and granted the motion for summary judgment filed on

behalf of Plaintiff, Brian Mullen (Mullen).

FACTS AND PROCEDURAL HISTORY

This suit arises out of an automobile accident that occurred on January 26,

2016, in Calcasieu Parish, Louisiana. At the time of the accident, Mullen was

employed by Stafford Transport of Louisiana, Inc. (Stafford Transport), and was

driving an eighteen-wheeler owned by Stafford Transport. Defendant, Vincent C.

Roco (Roco), allegedly lost control of his Toyota Corolla due to heavy rain, entered

Mullen’s lane of travel, and stuck the eighteen-wheeler, causing it to overturn.

Mullen filed suit against Roco and his insurer, State Farm Mutual Auto Insurance

Company (State Farm), as well as Starr, Axis, and Scottsdale, which are the alleged

uninsured/underinsured motorist (UM) carriers for Mullen’s employer.

Starr, Axis, and Scottsdale each filed motions for summary judgment arguing

that Georgia law applied. Axis and Scottsdale also alleged that their policies

provided no coverage to Mullen for this accident because UM coverage had been

validly waived pursuant to Georgia law. Starr filed an additional motion for

summary judgment seeking a ruling that it is entitled to a credit for all amounts paid,

and to be paid, to or on behalf of Mullen by the workers’ compensation insurer,

Great American Assurance Insurance Company (GAAIC). Mullen then filed a

motion for summary judgment seeking a ruling that Louisiana law applies because

he is a Louisiana resident and because the accident happened in Louisiana. Mullen

also sought a ruling that the policies provided UM coverage for this accident because

any waivers of UM coverage were invalid under Louisiana law.

Following a hearing, the trial court denied the insurers’ motions and granted

Mullen’s motions. A judgment to that effect was signed on January 9, 2019, and

provided, in pertinent part, as follows:

IT IS HEREBY ORDERED, ADJUDGED and DECREED[] that
there be judgment rendered in favor of . . . Mullen, and against
defendants, Starr [], Axis [], and Scottsdale [], finding that Louisiana
law applies to the . . . [i]nsurance policies.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that
there be judgment rendered in favor of . . . Mullen, and against
defendant, Starr [], granting the motion for partial summary judgment
filed by . . . Mullen, finding that [] Mullen is an insured under the Starr
[] insurance policy . . . and that the policy of insurance provides
$1,000,000 of uninsured/under insured insurance coverage over and
above any liability insurance coverage that insures [] Roco.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that
there be judgment rendered in favor of plaintiff . . ., and against
defendant Axis [], granting the motion for partial summary judgment
filed by . . . Mullen, finding that [] Mullen is an insured under the Axis
[] insurance policy . . . and that the policy of insurance provides
$4,000,000 of uninsured/under insured insurance coverage, excess to
the primary underlying limit of $1,000,000 of the Starr [] insurance
policy and over and above any liability insurance that insures [] Roco.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that
there be judgment rendered in favor of [] Mullen, and against defendant,
Scottsdale [], granting the motion for partial summary judgment filed
by . . . Mullen, finding that [] Mullen is an insured under the Scottsdale
[] insurance policy . . . and that the policy of insurance provides
$5,000,000 of uninsured/under insured insurance coverage, excess to
the underlying limit of $4,000,000 of the Axis [] insurance policy and
excess to the primary underlying limit of $1,000,000 of the Starr []
insurance policy and over and above any liability insurance that insures
[] Roco.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that
the motions for partial summary judgment filed on September 24,
2018[,] and September 25, 2018[,] by defendant, Starr [], are denied.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that
the motion for summary judgment filed on April 30, 2018[,] by
defendant, Axis [][,] and the motion for summary judgment filed on
September 26, 2018[,] by Scottsdale [] are denied.
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IT IS FURTHER ORDERED ADJUDGED and DECREED that
this judgment is not deemed a final appealable judgment.

Starr, Axis, and Scottsdale each filed applications for supervisory writs

seeking review of this judgment. In their writ applications, these insurers argued

that the trial court erred in denying their motions for summary judgment and in

granting the motion for partial summary judgment filed on behalf of Mullen. Those

writ applications were consolidated, and on May 15, 2019, this court denied them,

finding no error in the trial court’s ruling. Mullen v. State Farm Mut. Auto. Ins. Co.,

19-35, 19-50, and 19-52 (La.App. 3 Cir. 5/15/19) (unpublished writ decision).

In addition to the writ applications, Starr, Axis, and Scottsdale each filed

motions for devolutive appeal from the January 9, 2019 judgment, seeking review

of the granting of Mullen’s motion for partial summary judgment. Orders of appeal

were signed by the trial court.1 Just before the decision on the writ applications was

rendered, the record in the appeal was lodged. Because the judgment is partial

summary judgment that was specifically declared as not being a final judgment by

the trial court, this court ordered Starr, Axis, and Scottsdale to show cause, by brief

only, why the appeal should not be dismissed. See La.Code Civ.P. art. 1915(B).

“The denial of a motion for summary judgment is an interlocutory ruling from

which no appeal may be taken, the only practical remedy available to avoid a

possibly useless trial on the merits is to request that the appellate court exercise its

supervisory jurisdiction to review the propriety of this ruling.” Breaux v. Cozy

Cottages, LLC, 14-486, p. 4 (La.App. 3 Cir. 11/12/14), 151 So.3d 183, 187.

However, the instant judgment also grants summary judgment in favor of Mullen,

finding that Louisiana law applies to the Starr, Scottsdale, and AXIS policies, that

1
The signing of an order of appeal does not equate to a designation that the judgment is
final and appealable. In re Succession of Guilbeau, 10-1200 (La.App. 3 Cir. 12/1/10), 51 So.3d
185.
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Mullen is an insured under the three policies, and that these three policies provide

UM coverage to Mullen over and above any liability insurance that insures Roco. It

was specifically designated by the trial court as not being a final judgment.

Scottsdale and Axis argue2 that an ambiguity exists in Louisiana law regarding

whether or not the granting of Mullen’s motion for partial summary judgment is

appealable because where a motion for summary judgment is rendered on an issue

that may dispose of an entire case as to a party, it is unclear whether such a judgment

falls outside the scope of La.Code Civ.P. art. 966(E) but still within the scope of

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

Louisiana Code of Civil Procedure Article 1915(A) provides, in pertinent part,

that “[a] final may judgment may be rendered . . . even though it may not grant the

successful party . . . all the relief prayed for, or may not adjudicated all the issues in

the case” under certain circumstances, including the granting of “a motion for

summary judgment as provided by Articles 966 through 969, but not including a

summary judgment granted pursuant to La.Code Civ.P. art. 966(E). Louisiana Code

of Civil Procedure Article 966(E) provides that “summary judgment may be

rendered dispositive of a particular issue, theory of recovery, cause of action, or

defense, . . . even though the granting of the summary judgment does not dispose of

the entire case as to that party or parties.” Louisiana Code of Civil Procedure Article

1915(B) provides, in pertinent part, that a partial summary judgment “shall not

constitute a final judgment unless it is designated as a final judgment by the court

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

In this instance, the granting of Mullen’s motion for partial summary

judgment resolves the issues of choice of law and applicability of coverage but does

2
Scottsdale filed a response to the rule to show cause, and both Axis and Starr adopted
Scottsdale’s position.
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not dispose of the entire case as to any party because causation and the amount of

damages are still at issue. Thus, we find Scottsdale’s and Axis’ argument to be

without merit. The granting of Mullen’s motion for partial summary judgment in

this case falls squarely within the parameters of La.Code Civ.P. art. 966(E) and is

expressly excluded from being considered as a final judgment under La.Code Civ.P.

art. 1915(A).

In Christiana v. S. Baptist Hosp., 03-1880, pp. 3-4 (La.App. 4 Cir. 2/4/04),

867 So.2d 809, 811-812 (footnotes omitted), the fourth circuit noted that:

shortly after Douglass [v. Alton Ochsner Medical Foundation, 96-2825,
(La. 6/13/97), 695 So.2d 953,] was decided, the legislature enacted La.
Acts 1997, No. 483, § 2, amending La. C.C. P. arts. 966 and 1915. The
amendment to La. C.C.P. art. 966 made it clear that the district court
had the authority to grant a partial summary judgment. The amendment
to La. C.C.P. art. 1915 made it clear that the grant of a partial summary
judgment disposing of a particular issue was no longer considered a
final appealable judgment unless the parties agreed that it was final or
the trial court designated the judgment as a final judgment, after making
an express determination that there was “no just reason for delay.” . . .
[T]he issue of whether this Court should exercise its supervisory
jurisdiction to review such judgments appears to be left to the sound
discretion of the court. Herlitz Const. Co., Inc. v. Hotel Investors of
New Iberia, Inc., 396 So.2d 878 (La.1981).

In Terrell v. Town of LeCompte, 18-311 (La.App. 3 Cir. 5/31/18) (unpublished

writ decision), this court denied a writ application filed by the defendants after the

trial court granted a partial declaratory summary judgment in favor of the plaintiffs

and denied the defendants’ cross motion for summary judgment on the same issues,

i.e., whether certain sales tax money could be spent on day to day necessities for

civil defense/emergency preparedness. This court3 found that the judgment at issue

was a partial summary judgment under La.Code Civ.P. art. 1915(B) and denied the

writ, finding “that the relators have an adequate remedy through ordinary appeal,

3
Judge Cooks dissented, finding that the cross motions for summary judgment disposed of
the only issue in the case.

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either by obtaining a designation of the judgment as final for express reasons given

by the trial court or by appealing after there has been a complete adjudication of all

claims and the rights and liabilities of all parties in this action.” Id.

The defendants then sought writs from the Louisiana Supreme Court, arguing

that: (1) the case should be remanded to the Third Circuit for the writ to be converted

to an appeal or (2) the writ should be granted with the issuance of “a leading opinion

on the various nuances of the recent revisions to [La.Code Civ.P. art. 966]” so that

the writ would be considered “like [a] true appeal[].” The Louisiana Supreme Court

granted the writ; however, the case was remanded to the trial court “for a

determination of whether or not this partial summary judgment is a final judgment.

If it is certified as a final judgment, then it can be appealed, provided the appellate

requirements are met. If this partial summary judgment is not designated as a final

judgment, then there is an adequate remedy on appeal.” Terrell v. Town of

LeCompte, 18-1087 (La. 9/28/18), 253 So.3d 134, 135. This court interprets this last

sentence to mean that there is an adequate remedy on appeal after the complete

adjudication of the matter.

In the case sub judice, however, the ruling specifically states that the

“judgment is not deemed a final appealable judgment[,]” such that there is no need

to remand the matter for a determination as to or a designation of finality as required

by Terrell, 253 So.3d 134.

The trial court is not required to certify a partial judgment as final. Whether

to designate an otherwise partial judgment as final is left to the trial court and is

reviewable by this court under the abuse of discretion standard via an application for

supervisory writs. See Miller v. Tassin, 02-2383 (La.App. 4 Cir. 6/4/03), 849 So.2d

782. If no reasons for the certification as final are given, however, this court makes

“a de novo determination of whether the certification was proper.” R.J. Messinger,
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Inc. v. Rosenblum, 04-1664, p. 14 (La. 3/2/05), 394 So.2d 113, 1122. In this case,

the trial court did not make an express determination that it could not certify that

there is no just reason for the delay for an immediate appeal but simply declared that

the judgment was not a final judgment. That issue was not raised in the writ

applications filed by Starr, Axis, and Scottsdale, and none of them raise it in response

to the rule to show cause why the appeal should not be dismissed.

We find that the judgment at issue herein is an interlocutory judgment not

subject to immediate appeal. La.Code Civ.P. art. 1915. Accordingly, we have no

jurisdiction over it. La.Code Civ.P. art. 1915(B)(2). Additionally, we decline to

convert this matter to an application for supervisory writs since Starr, Axis, and

Scottsdale have already filed applications for supervisory writs with regard to this

judgment, and this court has ruled on these writ applications. Mullen, 19-35, 19-50,

and 19-52, (unpublished writ decision).

DECREE

For the reasons given, this court lacks jurisdiction to consider the merits of

this appeal because it was taken from a partial summary judgment under La.Code

Civ.P. art. 1915(B) that the trial court specifically designated as not being a final

judgment. This appeal is dismissed without prejudice. Costs are assessed to Starr,

Axis, and Scottsdale in equal percentages.

APPEALS DISMISSED WITHOUT PREJUDICE.

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