Elaine Ewing v. Westport Insurance Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 19-551

ELAINE EWING

VERSUS

WESTPORT INSURANCE CORPORATION, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 17-C-1591-B
HONORABLE ADAM GERARD CASWELL, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Jonathan W. Perry,
Judges.

REVERSED AND REMANDED.

Alan W. Stewart
James Huey Gibson
Gibson Law Partners, LLC
P. O. Box 52124
Lafayette, LA 70505
(337) 761-6028
COUNSEL FOR DEFENDANTS/APPELLEES:
Westport Insurance Corporation
Chuck Granger

Donald J. Cazayoux, Jr.
J. Lane Ewing, Jr.
Cazayoux Ewing, LLC
257 Maximilian Street
Baton Rouge, LA 70802
(225) 650-7400
COUNSEL FOR PLAINTIFF/APPELLANT:
Elaine Ewing

EZELL, Judge.

This case presents the issue of whether collectability on an underlying claim

for damages affects the recovery in a legal malpractice claim. For the following

reasons, we find that does not.

FACTS

On April 9, 2015, Elaine Ewing was injured in an automobile accident when

her vehicle was hit by a vehicle driven by Marc Melancon. She hired Chuck Granger

to represent her in her case against Mr. Melancon. On April 4, 2016, Mr. Granger

fax-filed a petition for damages to the Eighteenth Judicial District Court. However,

Mr. Granger failed to forward the original petition for damages within seven days as

required by La.R.S. 13:850. When the petition was finally filed on April 22, 2016,

the one-year prescriptive period had passed, and the suit was dismissed on an

exception of prescription.

Ms. Ewing filed suit against Mr. Granger and Westport Insurance Corporation,

Mr. Granger’s malpractice insurer, on April 5, 2017. She alleged she was entitled

to all damages she would have recovered against Mr. Melancon and his insurer.

Subsequently, the Defendants filed a motion for partial summary judgment alleging

that Ms. Ewing’s recovery could be no greater than her potential recovery in the

underlying personal injury lawsuit, or the insurance policy limits. They alleged

collectability above the polity limits as a defense. The trial court denied this motion

for summary judgment because there was no evidence which indicated that Mr.

Melancon would be unable to pay a judgment in excess of the policy limits.

Before trial on April 22, 2019, the Defendants reurged their motion for

summary judgment. At this time and in agreement with Ms. Ewing, they introduced

the deposition of Mr. Melancon in support of their motion for summary judgment.

The parties also stipulated that the coverage for the underlying insurance policies in

the personal injury case totaled $30,000. It was also stipulated that there was an

attorney/client relationship between Mr. Granger and Ms. Ewing, and Mr. Granger

breached the standard of care. In ruling on the motion for summary judgment, the

trial court stated:

The Court after considering the deposition of the defendant driver,
Marc Melancon, it’s very clear that Mr. Melancon’s testimony is that
he would have filed bankruptcy for any judgment in excess of, and that
his ability to pay would not support his paying any judgment above the
underlying $30,000 of coverage. In addition, the deposition from a
factual standpoint seems to leave no genuine issue of material fact as to
whether or not he had an ability to pay anything. . . . I find that, in this
case, the plaintiff cannot pursue damages in excess of the $30,000 of
insurance, and my rationale is this, in every case where insurance is
involved and limited insurance is involved, say in personal injury
actions, where you have a $15,000 auto policy or you have, in this case
a $30,000 of underlying auto coverage, a plaintiff would—for me to
rule otherwise, would mean that a plaintiff, where there is limited
insurance coverage, would be better off if their attorney committed
malpractice, because the attorney would have more coverage than that
underlying coverage.

The court then heard testimony and received evidence in Ms. Ewing’s case

against Mr. Granger. After the trial, the trial court ruled that Ms. Ewing’s damages

exceeded at least $30,000. However, it did not rule on the amount of actual damages,

finding that issue to be moot due to the grant of summary judgment in favor of the

Defendants on the issue of collectability. Ms. Ewing appealed the grant of summary

judgment in favor of the Defendants.

SUMMARY JUDGMENT

A moving party is entitled to summary judgment when it shows that there are

no genuine issues of material fact and that it is “entitled to judgment as a matter of

law.” La.Code Civ.P. art. 966(A)(3). Summary judgment is favored by law and

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provides a vehicle by which “the just, speedy, and inexpensive determination” of an

action may be achieved. La.Code Civ.P. art. 966(A)(2).

Appellate courts review summary judgments de novo under the
same criteria that govern a district court’s consideration of whether
summary judgment is appropriate. Greemon v. City of Bossier City,
2010-2828 (La. 7/1/11), 65 So.3d 1263, 1267; Samaha v. Rau, 2007-
1726 (La. 2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N.
Morial–New Orleans Exhibition Hall Authority, 2002-1072 (La.
4/9/03), 842 So.2d 373, 377. In ruling on a motion for summary
judgment, the judge’s role is not to evaluate the weight of the evidence
or to determine the truth of the matter, but instead to determine whether
there is a genuine issue of triable fact. All doubts should be resolved in
the non-moving party’s favor. Hines v. Garrett, 2004-0806 (La.
6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures
or precludes recovery, affects a litigant’s ultimate success, or
determines the outcome of the legal dispute. A genuine issue is one as
to which reasonable persons could disagree; if reasonable persons could
reach only one conclusion, there is no need for a trial on that issue and
summary judgment is appropriate. Id. at 765–66.

On motion for summary judgment, the burden of proof remains
with the movant. However, if the moving party will not bear the burden
of proof on the issue at trial and points out that there is an absence of
factual support for one or more elements essential to the adverse party’s
claim, action, or defense, then the non-moving party must produce
factual support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial. If the opponent of the motion fails
to do so, there is no genuine issue of material fact and summary
judgment will be granted. See La. C.C.P. art. 966(D)(1); see also
Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006.

Larson v. XYZ Ins. Co., 16-745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416.

A plaintiff must introduce evidence of three essential elements in order to

establish a claim of legal malpractice: “1) the existence of an attorney-client

relationship; 2) negligent representation by the attorney; and 3) loss caused by that

negligence.” Brennan’s Inc. v. Colbert, 15-325, p. 24 (La.App. 4 Cir. 4/13/16), 191

So.3d 1101, 1114-15. “Once a prima facie case of malpractice has been made by

the plaintiff, the burden of proof shifts to the defendant, who bears the burden of

proving that the litigation would have been unsuccessful.” Id. at 1115.

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Prior to trial, the parties stipulated that there was an attorney-client

relationship and that Mr. Granger breached the standard of care. Following trial, the

trial court found that Ms. Ewing established that she suffered at least $30,000 in

damages. The Defendants allege that Ms. Ewing is not entitled to any damages over

the $30,000 policy limits even if a judgment was rendered for damages in excess of

$30,000 because Mr. Melancon would not have been able to personally pay anything.

In Rodriguez v. Traylor, 468 So.2d 1186 (La.1985), the supreme court

overruled long-standing jurisprudence that the inability of a defendant to pay should

be considered by the fact finder in determining the amount of compensation that

should be awarded to a plaintiff. In overruling the jurisprudence, the supreme court

ruled that “the wealth or poverty of a party to a lawsuit is not a proper consideration

in the determination of compensatory damages.” Id. at 1188.

The supreme court has also held that “[a] plaintiff can have no greater rights

against attorneys for the negligent handling of a claim than are available in the

underlying claim.” Costello v. Hardy, 03-1146, pp. 9-10 (La. 1/21/04), 864 So.2d

129, 138.

The Defendants introduced the deposition of Mr. Melancon in support of their

motion for summary judgment. Mr. Melancon testified that he is employed at his

father’s business, Marc’s Heat & Air, as an air technician. He explained that he gets

paid for each job he performs. He earned $17,000 in 2018. He owns a 2007 Ford

F150 with 110,000 miles on it which cost $16,000. Mr. Melancon’s father paid the

down payment of $10,000, and Mr. Melancon financed the remaining $6,000.

He got married in 2016 and has no other sources of income. His wife owns

the house they live in, which she bought a couple of months before they were married.

He has a registered boat trailer but does not own a boat. His dad is supposed to give

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him a boat. He does not file tax returns. Mr. Melancon stated that he would not

have been able to pay any judgment above $30,000 and would have considered filing

bankruptcy.

In the instant case, there is no question that Ms. Ewing would have recovered

on the underlying claim but for Mr. Granger’s negligence. After reviewing Mr.

Melancon’s deposition, the trial court determined that Ms. Ewing’s damages are

greater than $30,000. However, the trial court agreed with the Defendants that Ms.

Ewing would not be able to collect anything over $30,000 from Mr. Melancon and

found that she was only entitled to $30,000.

Both parties cite this court’s decision in Fortenberry v. Continental Casualty

Co., 15-418 (La.App. 3 Cir. 11/4/15), 179 So.3d 729, which involved a legal

malpractice claim in which this court reversed summary judgment granted in favor

of the plaintiff because there were questions of material fact as to whether the

plaintiff was injured in the underlying accident. Referring to an earlier writ ruling

in that case, this court noted that the plaintiff in a malpractice action had the burden

of establishing all three prongs of Costello, 864 So.2d 129. However, the writ ruling

further stated that it was the defendant attorney who had the burden of establishing

that the client could not have recovered on the underlying claim regardless of the

attorney’s negligence.

We agree. However, pursuant to our de novo review of the case, we find that

the Defendants cannot rely on a hypothetical situation of bankruptcy to limit Ms.

Ewing’s recovery. It is just as possible that Mr. Melancon may not file bankruptcy

and the judgment may become collectible in the future should Mr. Melancon receive

some money from other sources. It is admitted that Ms. Ewing would have been

successful in her claim against Mr. Melancon. Ms. Ewing had a right to a judgment

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for the recovery of the full amount of her damages against Mr. Melancon, without

the consideration of his ability to pay the judgment. An inability to pay Ms. Ewing

does not relieve Mr. Melancon of the obligation to pay her. Because of Mr.

Granger’s negligence, we will never know what Ms. Ewing would have collected

from Mr. Melancon. Mr. Granger can have no greater rights in his defense of legal

malpractice than Mr. Melancon would have had in the underlying suit. Ms. Ewing

is entitled to the same rights against the Defendants as she had against Mr. Melancon,

due to the negligence of Mr. Granger in depriving of her the ability to sue Mr.

Melancon. Collectability could not be raised in the underlying lawsuit and should

not be considered in Ms. Ewing’s malpractice claim against the Defendants either.

The Defendants also argue that even if the collectability rule was not applied,

Ms. Ewing’s recovery should not exceed $30,000. At the end of the trial, the trial

court specifically stated:

On the record, for purposes of the judgment that I’m rendering, I also
want it clear that my finding is not that Ms. Ewing’s damages would
not possibly exceed thirty, I’m finding that I find that they’re at least
thirty and that finding what they might actually be, I find that to be a
moot issue and won’t rule on that because of my ruling on the summary
judgment; and only in the event should the Courts above me should
overturn that decision, would I then revisit that issue upon remand.

The issue of the amount of damages was not addressed by the trial court. An

appellate court cannot consider issues raised for the first time on appeal which have

not been addressed by the trial court. Johnson v. State, 02-2382 (La. 5/20/03), 851

So.2d 918; Adams v. Lori Heaphy & Assoc., 14-580 (La.App. 3 Cir. 12/17/14), 155

So.3d 170. Accordingly, we will remand this case to the trial court for a

consideration of the amount of damages suffered by Ms. Ewing as a result of the

accident.

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For the reasons set forth in this opinion, the judgment of the trial court

granting summary judgment in favor of Chuck Granger and Westport Insurance

Corporation is reversed. The case is remanded to the trial court for consideration of

the amount of damages. Costs of this appeal are assessed to Chuck Granger and

Westport Insurance Corporation.

REVERSED AND REMANDED.

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