Amy Chesne v. Mark M. Mayeaux

• Court: Louisiana Court of Appeal
• Decided: November 5, 2003
• Docket: CA-0003-0570
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

03-0570

AMY CHESNE

VERSUS

MARK M. MAYEAUX, ET AL.

**********

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2002-3021-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of Ned E. Doucet, Jr., Chief Judge, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED.

Russell L. Potter Stafford, Stewart & Potter Post Office Box 1711 Alexandria, LA 71309 (318) 487-4910 COUNSEL FOR DEFENDANTS/APPELLANTS: Lafayette Insurance Company Mark M. Mayeaux

Larry A. Stewart Mark D. Pearce Stafford, Stewart & Potter Post Office Box 1711 Alexandria, LA 71309 (318) 487-4910 COUNSEL FOR DEFENDANTS/APPELLANTS: State Farm Mutual Automobile Insurance Kirk L. Landry Keogh, Cox & Wilson, Ltd. Post Office Box 1151 Baton Rouge, LA 70821 (225) 383-3796 COUNSEL FOR DEFENDANT/APPELLEE: Valley Forge Insurance Company

Brian M. Caubarreaux Brian Caubarreaux and Associates Post Office Box 129 Marksville, LA 71351 (318) 253-0900 COUNSEL FOR PLAINTIFF/APPELLEE: Amy Chesne AMY, Judge.

Plaintiff seeks damages for injuries arising from an automobile accident in

Rapides Parish in which her vehicle was struck by a vehicle driven by Defendant

Mark Mayeaux. Plaintiff filed suit in Avoyelles Parish, the parish of her domicile,

against Mayeaux, his employer, and his employer’s insurer, against Plaintiff’s

employer’s insurer, and against Plaintiff’s own uninsured motorist carrier. She then

voluntarily dismissed her uninsured motorist carrier, and, eight months later,

Defendants filed a declinatory exception of improper venue. Before the hearing on

the exception took place, Plaintiff filed an amended and supplemental petition in

which she renamed her uninsured motorist carrier as a defendant. The hearing on the

exception occurred thereafter, and the trial judge found that venue was proper in

Avoyelles Parish. Defendants Mark Mayeaux and Lafayette Insurance Company

appeal the trial judge’s ruling. For the following reasons, we affirm.

Factual and Procedural Background

This appeal comes to us from an ongoing personal injury suit in the District

Court for Avoyelles Parish. The accident from which the instant matter arose

occurred on or about May 22, 2001, in the South Traffic Circle in Alexandria,

Louisiana. Ms. Amy Chesne, Plaintiff herein, alleges that she was proceeding around

the South Traffic Circle on her way to purchase office supplies, when Defendant,

Mark Mayeaux, entered the traffic circle and struck Ms. Chesne’s vehicle with his

van. Mr. Mayeaux, a resident and domiciliary of New Orleans, was in Alexandria on

business and was in the course and scope of his employment when the accident

occurred. Custom Cabinets, Mr. Mayeaux’s employer and the owner of the van, had

its principal place of business in Harahan, Jefferson Parish, Louisiana. Ms. Chesne filed a personal injury claim on February 5, 2002, in Avoyelles

Parish, the parish of her domicile. Named defendants were Mr. Mayeaux, Custom

Cabinets, ABC Insurance Company (Ms. Chesne’s employer’s uninsured motorist

carrier), Lafayette Insurance Company (Custom Cabinets’ insurer), and State Farm,

Ms. Chesne’s uninsured motorist carrier.

The record contains scant evidence of discovery over the following months.

There is no evidence that Custom Cabinets was served; likewise, it appears that ABC

Insurance Company’s identity was never ascertained, and Plaintiff’s claims against

it were not pursued. On June 5, 2002, Ms. Chesne requested a partial judgment of

voluntary dismissal without prejudice in favor of State Farm. This dismissal was

granted by the trial judge.

The record indicates that between May 22, 2002, and January 15, 2003, Ms.

Chesne’s attorney sent two requests for production to Lafayette Insurance in New

Orleans in an effort to determine the limits of Custom Cabinets’ employee policy.

The record reflects that Plaintiff’s counsel had been advised informally that Custom

Cabinets had a $500,000 policy, but no information was forthcoming about the

coverage provided by an umbrella policy.

On January 15, 2003, some eight months after the conditions for the exception

became ripe, Defendants Mayeaux and Lafayette Insurance Company filed a

declinatory exception of improper venue, asserting that when Ms. Chesne voluntarily

dismissed State Farm, her uninsured motorist carrier, from the suit, venue in

Avoyelles Parish was no longer proper. Defendants asked that the case be dismissed,

or, in the alternative, that it be transferred to Rapides Parish by operation of La.Code

Civ.P. art. 121.

2 On January 22, 2003, seven days after the exception of improper venue was

filed, Ms. Chesne filed a pleading styled “First Amended and Supplemental Petition

for Damages,” in which she added State Farm as a defendant without providing any

supporting allegations. Ms. Chesne also filed a Motion to Compel, asking the trial

judge to order Lafayette Insurance to respond to inquiries regarding Custom Cabinets’

insurance policy. The trial judge signed an order allowing Ms. Chesne’s amended and

supplemental petition on January 23, 2003.

The transcript of the March 2003 hearing on the exception evinces the

defendants’ concession that venue was proper in Avoyelles Parish when Ms. Chesne’s

suit was originally filed pursuant to La.Code Civ.P. art. 76 and the interpretive

jurisprudence. However, the defendants argued, when Ms. Chesne voluntarily

dismissed State Farm without prejudice and subsequently brought it back into the suit

as a defendant, it was done solely for the purpose of establishing venue, and, pursuant

to La.Code Civ.P. art. 73(B), venue established in this manner is improper. The

defendants contended that the only way that venue would remain viable in Avoyelles

Parish would be if Ms. Chesne’s dismissal of State Farm constituted a settlement or

compromise under La.Code Civ.P. art. 73(B). The defendants insisted that Ms.

Chesne’s dismissal of State Farm did not constitute such a compromise. Furthermore,

the defendants contended, the timing of Ms. Chesne’s amended and supplemental

petition—a mere seven days after the exception of improper venue was filed—gave

rise to a reasonable assumption that State Farm had been added solely for the purpose

of establishing venue in Avoyelles Parish. The defendants pointed out that Ms.

Chesne’s uninsured motorist coverage through State Farm only provided benefits of

$10,000, compared to the $1.5 million in total coverage provided by the Lafayette

Insurance policy ($500,000 accident coverage with a $1,000,000 umbrella policy), and

3 that the record was devoid of any evidence that would prompt Ms. Chesne to

reinstitute litigation against State Farm out of concern that Mr. Mayeaux was an

underinsured motorist.

Ms. Chesne’s attorney explained at the hearing on the exception that State Farm

was dismissed out of concern for judicial economy and because the Lafayette

Insurance policy coverage appeared to be sufficient. However, he noted, it became

necessary to bring State Farm back into the suit because Ms. Chesne’s injuries were

still being treated, and he was uncertain as to whether Custom Cabinets’ insurance

policy would be sufficient to cover Ms. Chesne’s medical expenses. The hearing

transcript indicates that Ms. Chesne’s attorney acknowledged that he knew of the

$500,000 policy but had not yet been informed of the full amount of coverage

available (the umbrella policy); as a result, he felt it would be prudent to bring State

Farm back into the suit.

The record reflects that the defendants called the attorney for State Farm who

had discussed the voluntary dismissal with Ms. Chesne’s attorney to testify as to the

monetary details of their agreement. The witness explained that as State Farm’s

attorney, he obviously desired to have his client dismissed from the suit, but he neither

disbursed any funds nor gave any other consideration in exchange for the dismissal.

Furthermore, an examination of the record reveals that there was no written

memorialization of a settlement or compromise between Ms. Chesne and State

Farm—the agreement was made via phone.

After considering the evidence, the trial judge denied the defendants’ exception,

stating that he found that State Farm and Ms. Chesne had reached a valid compromise

leading to State Farm’s dismissal without prejudice. He also noted that Ms. Chesne

had named her uninsured motorist carrier as a defendant in her original petition,

4 which, he explained, is customary practice for plaintiffs at the beginning of a suit

when discovery hasn’t yet taken place and uncertainty exists as to the adequacy of the

defendant’s insurance coverage. Therefore, he concluded, State Farm hadn’t been

added solely for the purpose of creating venue, and, pursuant to La.Code Civ.P. art.

73(B), venue was proper in Avoyelles Parish.

Defendants Mark Mayeaux and Lafayette Insurance Company appeal the trial

judge’s ruling. In their sole assignment of error, the defendants submit that the trial

judge erred in denying their exception of improper venue.

Discussion

Defendants Mark Mayeaux and Lafayette Insurance Company argue on appeal

that the trial judge erred in denying the exception of improper venue and request that

Ms. Chesne’s suit be dismissed without prejudice. They maintain that when Ms.

Chesne dismissed State Farm, venue in Avoyelles Parish was no longer proper. The

defendants have enunciated two subparts to this argument, viz., (1) State Farm was not

dismissed pursuant to a compromise, and (2) renaming State Farm as a defendant after

the defendants excepted to venue has no legal effect.

In her reply, Ms. Chesne asserts that she was unaware of the existence of

Custom Cabinets’ umbrella policy prior to filing the supplemental and amended

petition that reinstated her uninsured motorist carrier as a defendant. Furthermore, she

cites the Louisiana Supreme Court’s decision in Farrar v. Haedicke, 97-2923 (La.

12/2/97), 702 So.2d 690, in support of her contention that the defendants must show

that Ms. Chesne renamed State Farm as a defendant in bad faith. She suggests that the

defendants are unable to produce such evidence because doing so “would require

[them to] show that reasonable information was received by the plaintiff and/or

plaintiff’s counsel prior to the pleading bringing in the uninsured motorists [sic]

5 carrier into [sic] the suit.” Ms. Chesne claims that her lack of bad faith is proven by

the defendants’ failure to respond promptly to discovery regarding the amount of

insurance coverage available through Lafayette Insurance.

A trial court’s denial of a declinatory exception of improper venue is an

interlocutory judgment that may cause irreparable harm and is therefore properly

appealable. Hebert v. Mid South Controls and Services, Inc., 96-378 (La. App. 3 Cir.

10/9/96), 688 So.2d 1171, writ denied, 96-2708 (La. 2/21/97), 688 So.2d 523;

cert.denied, 522 U.S. 814, 118 S.Ct. 61 (1997), citing La.Code Civ.P. art. 2083(A);

A&P Boat Rentals, Inc. v. American Lloyd’s, 592 So.2d 1361 (La.App. 1 Cir. 1991).

The standard of review on appeal of a ruling on an exception is the manifest

error—clearly wrong standard. See Guitreau v. Kucharchuk, 99-2570 (La. 5/16/00),

763 So.2d 575, citing Stobart v. State of Louisiana, through Department of

Transportation and Development, 92-1328 (La. 4/12/93), 617 So.2d 880.

Louisiana Code of Civil Procedure Article 42 sets forth the general venue rules

for actions brought in Louisiana. Recognized as exceptions to the general venue rules

are, inter alia, La.Code Civ.P. arts. 76 and 73. Louisiana Code of Civil Procedure

Article 76 provides, in pertinent part, that “[a]n action on a health and accident

insurance policy may be brought in the parish where the insured is domiciled, or in the

parish where the accident occurred.” The relevant portion of La.Code Civ.P. art.

73(A) states,

[A]n action for the recovery of damages . . . against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled if the parish of plaintiff’s domicile would be a parish of proper venue against any defendant under . . . [La.Code Civ.P. art.] 76 . . . .

In its decision in Kellis v. Farber, 523 So.2d 843 (La.1988), the supreme court

reiterated its interpretation of La.Code Civ.P. art. 73 as allowing a plaintiff to file suit

6 against a tortfeasor, the tortfeasor’s insurer, and her own uninsured motorist carrier

all in the same venue because the tortfeasor, the tortfeasor’s insurer, and the plaintiff’s

uninsured motorist carrier are solidary obligors vis-à-vis the plaintiff. See Kellis, 523

So.2d 843, citing Burton v. Foret, 498 So.2d 706 (La.1986), and Hoefly v.

Government Employees Insurance Co., 418 So.2d 575 (La.1982). Article 73 venue

is therefore proper in the parish of the plaintiff’s domicile, regardless of where the

accident occurred or where the tortfeasor resides. Laborde v. American Nat. Property

& Cas. Companies, 00-01091 (La.App. 3 Cir. 1/31/01), 780 So.2d 501, writ denied,

01-0599 (La. 4/27/01), 791 So.2d 634.

In the matter sub judice, the defendants acknowledge that when Ms. Chesne

filed her original petition naming as defendants Mr. Mayeaux, Lafayette Insurance,

State Farm, et al., venue was proper in Avoyelles Parish, the parish of Ms. Chesne’s

domicile, per La.Code Civ.P. art. 73, even though the accident occurred in Rapides

Parish, State Farm is a foreign insurer, and Mr. Mayeaux and Lafayette Insurance are

domiciled in Orleans Parish. The real dispute in the instant appeal centers on the

following chain of events: (1) Ms. Chesne dismisses State Farm; (2) Mayeaux and

Lafayette Insurance file an exception of improper venue; (3) Ms. Chesne files an

amended and supplemental petition bringing State Farm back into the suit; (4) the trial

judge denies the exception of improper venue.

Defendants Mayeaux and Lafayette Insurance assert, as their sole assignment

of error on appeal, that the trial judge improperly denied their declinatory exception

of improper venue. The preponderance of their brief, however, pertains to the events

that occurred after the exception was filed.

The defendants cite a number of cases in support of their assertion that the trial

judge improperly denied the exception, none of which is truly on point. Most

7 significant among the jurisprudence relied upon are Cheramie v. Acadian Ambulance

Services, Inc., 95-0038 (La.App. 1 Cir. 10/6/95), 671 So.2d 489; Durio v. Robert E.

Lee, Inc., 00-1314 (La.App. 4 Cir. 8/2/00), 774 So.2d 181, writ denied, 00-2839 (La.

12/8/00), 776 So.2d 462; and Jones v. Massachusetts Bay Ins. Co., 614 So.2d 262

(La.App. 3 Cir. 1993).

In Cheramie v. Acadian Ambulance Services, Inc., an ambulance owned by

Acadian Ambulance Services was involved in an accident with a vehicle driven by

Herman Cheramie and owned by his employer. Cheramie, a Lafourche Parish

domiciliary, filed suit in Lafourche Parish, naming as defendants Acadian Ambulance,

the ambulance’s driver, Acadian’s insurance provider, Cheramie’s own uninsured

motorist carrier, and his employer’s uninsured motorist carrier. Cheramie later filed

a motion for partial dismissal without prejudice that removed both uninsured motorist

carriers from the suit. Nearly two months later, Cheramie filed a supplemental and

amended petition that added his wife as a plaintiff and brought both uninsured

motorist carriers back into the suit as defendants. Shortly thereafter, the Cheramies

moved to dismiss the employer’s uninsured motorist carrier without prejudice.

Acadian Ambulance, the driver, and its insurer then answered the supplemental and

amended petition. The Cheramies filed a second supplemental and amended petition

later, adding Cheramie’s wife as plaintiff, and naming Acadian, the ambulance driver,

and its insurer as defendants. In turn, the defendants filed an exception of improper

venue due to the absence of the Cheramies’ uninsured motorist carrier from the second

supplemental and amended petition. The trial court overruled the exception, and the

defendants appealed. In support of the trial court’s ruling, the plaintiffs argued on

appeal that the defendants had waived their objections to venue by answering the

original and first amended and supplemental petitions. In its decision, the Louisiana

8 First Circuit Court of Appeal held that the defendants had not yet answered the second

amended and supplemental petition when they filed their exception, and because

venue had once again become improper due to the omission of the uninsured motorist

carriers from the petition, the exception should have been sustained.

We find that Cheramie v. Acadian Ambulance Services, Inc. is distinguishable

from the instant matter. In Cheramie, the plaintiffs did not name their own uninsured

motorist carrier as a defendant in the second amended and supplemental petition. As

a result, venue became improper, and an exception was timely filed by the defendants.

In contrast, in the case presently before this court, the exception of improper venue

became moot when the trial judge signed the order allowing the plaintiff’s amended

and supplemental petition that renamed State Farm as a defendant. Although

Cheramie’s fact pattern diverges from the instant matter, and, consequently, the

holding diverges, as well, an observation made by the first circuit in Cheramie is

nonetheless appropriate here: “[o]nce the Cheramies renamed [the uninsured motorist

carriers] as defendants, the [Ambulance Services, its insurer, and the driver] could not

raise the exception of improper venue because venue was once again proper.”

Cheramie, 671 So.2d at 492. In light of this observation, the defendants’ assertion

that Ms. Chesne’s amended petition had no legal effect is not valid.

Likewise, the defendants’ reliance upon Jones v. Massachusetts Bay Ins. Co.

is ill-founded. In Jones, a panel of this court noted that an exception of improper

venue was improperly sustained where the uninsured motorist carrier had been

dismissed upon payment of its policy limits to the plaintiffs. There is no question of

payment of policy limits in the instant matter on appeal; as such, the holding of Jones

v. Massachusetts Bay is not applicable.

9 It is important to note that in his oral reasons for denying the exception, the trial

judge stated that he had determined that venue remained proper despite the

defendants’ assertion that La.Code Civ.P. art. 73(B) dictated otherwise. The judge

reasoned that a compromise was reached between Ms. Chesne and State Farm and that

Ms. Chesne’s original petition (N.B.: not her amended and supplemental petition) did

not name State Farm solely for the purpose of establishing venue in Avoyelles Parish.

Venue did, indeed, remain proper in Avoyelles Parish, albeit for reasons other

than those argued below. We conclude that when venue in Avoyelles Parish was lost

due to the dismissal of State Farm, it was regained when the trial judge allowed the

amended and supplemental petition renaming State Farm as a defendant. Because

venue had been reëstablished before the hearing on the exception of improper venue,

the trial judge properly denied the exception. A consideration of La.Code Civ.P. art.

73(B) was neither essential nor germane to reaching the correct conclusion. Louisiana

Code of Civil Procedure Article 73(B) pertains to the situation in which a plaintiff

originally names a defendant as a party to suit for the sole purpose of establishing

venue, and then, that defendant is dismissed by compromise or dismissed after trial

on the merits. Article 73(B) does not address the situation in which a party is initially

validly named defendant in a suit, then dismissed, then rejoined. As such, once the

plaintiff’s petition was amended, Article 73(B) ceased to be a governing principle in

this case.

DECREE

For the foregoing reasons, the judgment denying the exception of improper

venue is affirmed. All costs of this proceeding are assigned to the defendants-

appellants, Mark Mayeaux and Lafayette Insurance Company.

10 11