BENJAMIN PRI-TAL AND * NO. 2024-CA-0531 MARY GASTON * VERSUS COURT OF APPEAL * PROGRESSIVE PROPERTY FOURTH CIRCUIT INSURANCE COMPANY * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-09683, DIVISION “M” Honorable Paulette R. Irons, Judge ****** Judge Dale N. Atkins ****** (Court composed of Chief Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Dale N. Atkins)
Caleb H. Didriksen, III Erin Bruce Saucier Carl A. “Trey” Woods, Esq. DIDRIKSEN, SAUCIER, & WOODS, PLC 3114 Canal Street New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANTS, Benjamin Pri-Tal and Mary Gaston
LaDonna G. Schexnyder Tina L. Kappen Sarah C. Laurie Megan M. Clark LUGENBUHL, WHEATON, PECK, RANKIN & HUBBARD 601 Poydras Street, Suite 2775 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE, Progressive Property Insurance Company
REVERSED AND REMANDED MAY 14, 2025 DNA
RLB
RML
This dispute stems from an insurance claim filed after Hurricane Ida struck
Louisiana on August 29, 2021.1 Appellants, Benjamin Pri-Tal and Mary Gaston
(collectively “Appellants”), seek review of the trial court’s June 5, 2024 judgment,
which granted the Exceptions of No Cause of Action and No Right of Action filed
by Appellee, Progressive Property Insurance Company (“Progressive”), and
dismissed Appellants’ claims against Progressive with prejudice. In the judgment,
the trial court also ruled that Progressive’s “Motion . . . to Opt Out of Hurricane
Ida Case Management Order, Or Alternatively, to Stay Case Management Order
Deadlines” (“Motion to Opt Out”) had been rendered moot by its grant of
Progressive’s Exceptions of No Cause of Action and No Right of Action. For the
following reasons, we reverse the trial court’s June 5, 2024 judgment and remand
this matter for further proceedings.
1 As we have previously explained, “[t]his Court can take judicial notice of government
websites.” Filmore Parc Apartments II v. White, 2024-0475, 0476, p. 15 (La. App. 4 Cir. 2/14/25), ___ So.3d ___, ___, 2025 WL 502045, at *7 n.4 (citing Bankers Ins. Co. v. EMIII Holdings, LLC, 2024-0386, p. 1 (La. App. 4 Cir. 12/16/24), ___ So.3d ___, ___, 2024 WL 5116650, at *1 n.1). Accordingly, we take judicial notice of the National Ocean Service: National Oceanic and Atmospheric Administration’s website, which states that “Hurricane Ida made landfall as [a] Category 4 hurricane in Lafourche Parish near Port Fourchon, Louisiana . . . . Landfall occurred at 11:55 a.m. on August 29, 2021.” Hurricane Ida: NOS Fiscal Year 2021 Year in Review, NATIONAL OCEAN SERVICE: NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, https://oceanservice.noaa.gov/annualreport/2021/hurricane- ida.html#:~:text=Hurricane%20Ida%20made%20landfall%20as,a.m.%20on%20August%2029% 2C%202021 (last visited May 6, 2025).
1 FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Appellants’ Petition for Damages
On August 28, 2023, Appellants filed a Petition for Damages (“Petition”) in
Civil District Court for the Parish of Orleans, wherein they named Progressive as
the sole defendant. In their Petition, Appellants alleged that, “[a]t all times
pertinent herein,” they were the owners of the property located at 2139 Peniston
Street, New Orleans, Louisiana 70115 (“the Property”). Appellants explained that
“[o]n August 28 & 29, 2021, Hurricane Ida caused severe and substantial wind
damage to said residence, including roof damage and damage to the interior and
exterior of the . . . residence.” Regarding the alleged wind damage, Appellants
stated that, at the time of Hurricane Ida, Progressive “was the dwelling insurance
carrier for . . . 2139 Peniston Street” under Policy No. LAL148575. Appellants
stated Progressive had not yet tendered payment for the damage the property
experienced and that they were “initiating a claim with [Progressive] . . . . for wind
damages sustained at the insured premises as a result of Hurricane Ida.”
Progressive’s Answer
On February 20, 2024, Progressive filed its Answer to Appellants’ Petition.
Therein, Progressive admitted that it issued a homeowners’ insurance policy to
Appellants, and Progressive stated the policy period was from October 22, 2020, to
October 22, 2021. Progressive also asserted twenty-six affirmative defenses in its
Answer. Relevant to this appeal, in its tenth affirmative defense, Progressive
quoted the following section from the homeowners’ insurance policy:
SECTION I – CONDITIONS
What Must Be Done After A Loss
2 In the event of a loss to which coverage may apply, the following duties must be performed either by you, an “insured” seeking coverage, or a representative of either:
1. Give us immediate notice. When the loss is caused by the peril of windstorm or hail, that notice must occur no later than one year after the date of loss;
....
We have no duty to provide coverage under this policy if there is a failure to comply with the above duties and that failure is prejudicial to us.
The above-quoted provision will hereinafter be referred to as the “Notice
Provision.” Progressive quoted more of the “SECTION I – CONDITIONS” part
of the contract as follows:
Legal Action Against Us
No legal action can be brought against us unless there has been full compliance with all of the terms under Section I of this policy and the legal action is filed within two years after the date of loss.
The above-quoted provision will hereinafter be referred to as the “Legal Action
Provision.”
Progressive’s Peremptory Exceptions of No Right of Action and No Cause of Action
Subsequently, on March 6, 2024, Progressive filed Peremptory Exceptions
of No Right of Action and No Cause of Action (collectively “Exceptions”). In its
Exceptions, Progressive argued Appellants’ claim for damages was “untimely” and
“should be dismissed on the basis of [Appellants’] failure to comply with the
conditions of the [homeowners’ insurance] policy.” In particular, Progressive
alleged Appellants failed to comply with the Notice Provision because they did not
report their claim to Progressive within one year of the alleged loss, i.e., within one
year of Hurricane Ida. Rather, according to Progressive, Appellants did not report
3 their claim until the filing of their lawsuit, which was two years after the alleged
loss, i.e., two years after Hurricane Ida. Progressive stated the purpose of the
Notice Provision is for the insurer to have “an opportunity to investigate the
alleged damage as soon as possible following the loss in an effort to minimize the
impact of the passage of time on the investigation.” Progressive further argued that
timely reporting of the claim within one year of the alleged loss is “a condition
precedent to an insured’s right to recover and/or bring suit under the policy,” such
that Appellants’ failure to comply with the Notice Provision constituted a “breach
of the policy terms.”
Progressive further alleged that not only was Appellants’ Petition “devoid of
any allegations [Appellants] previously notified Progressive of any alleged loss
from [Hurricane] Ida” but that “[t]he late claim reporting [was] evident on the face
of [Appellants]’ Petition and Policy” because Appellants “admit[ted] on the face of
their Petition that they [were] initiating [their] claim by filing suit two years after
the alleged date of loss.”2 Accordingly, Progressive asserted the trial court should
grant its Exceptions and dismiss Appellants’ claims with prejudice. In support of
its Exceptions, Progressive attached a copy of the homeowners’ insurance policy.
Progressive also filed on March 6, 2024, a Motion to Opt Out. Progressive
filed its Motion to Opt Out regarding a “Case Management Order Regarding
Certain Property Damage Suits Arising from Hurricane Ida” (“CMO”) issued by
the Orleans Parish Civil District Court after Hurricane Ida. In its Motion to Opt
Out, Progressive argued that “[f]or the sake of judicial efficiency, the parties
should be able to focus their efforts on the narrow issues presented by this case,
2 Progressive pointed to the following statement in Appellants’ Petition: “Petitioners are
initiating a claim with [Progressive] for wind damages sustained at the premises as a result of Hurricane Ida which occurred on or about August 28 & 29, 2021.” (Emphasis added.)
4 i.e., the determination of Progressive’s pending [E]xceptions.” Progressive further
argued that “[g]iven the limited issues presented by the case sub judice,” the matter
“should be removed from the dictates of the Hurricane [Ida] CMO.”
Appellants’ Opposition to Exceptions
On May 8, 2024, Appellants filed an Opposition to Progressive’s
Exceptions, wherein they argued that “Progressive’s Exceptions fail as a matter of
law, as Progressive [was] required under both Louisiana law and the terms of the
policy to show evidence of actual and material prejudice in order to sustain a
coverage exclusion for an alleged failure to cooperate under the terms of the
policy.” In this regard, Appellants further argued that “Progressive has not
submitted a single piece of evidence nor made a single argument that it was
prejudiced by the timing of the notice of this claim. Instead, Progressive’s
pleadings completely ignored the element of prejudice.”3 Quoting jurisprudence
from the Louisiana Third Circuit Court of Appeal, Appellants contended the notice
requirement functions “to prevent the insurer from being prejudiced, not to provide
a technical escape-hatch by which to deny coverage in the absence of prejudice nor
to evade the fundamental protective purpose of the insurance contract to assure the
insured and the general public that liability claims will be paid up to the policy
limits for which premiums were collected.”4
Progressive’s Reply
On May 14, 2024, Progressive filed a reply in support of its Exceptions
(“Reply”). Therein, Progressive argued that prejudice was a nonissue in this matter 3 Of note, Appellants also contended in their Opposition that “the appropriate procedural
device for submitting this argument would be a motion for summary judgment, not exceptions, as Progressive’s arguments ask the [c]ourt to weigh evidence of disputed facts.” 4 Appellants quoted from Miller v. Marcantel, 221 So.2d 557, 559 (La. App. 3d Cir.
1969).
5 because the homeowners’ insurance policy established “no legal action can be
brought against [Progressive] without full compliance” with the terms of the
policy, i.e., the Legal Action Provision. Nonetheless, Progressive asserted it was
prejudiced by Appellants’ late reporting of their claim, contending:
Over the past two years, this property has sustained potential damages from numerous other rain, wind, and hail events. It is impossible for Progressive now to accurately determine what damages are related to Hurricane Ida. [Appellants] denied Progressive the opportunity to adjust this claim such that it could ascertain actual damages related to Hurricane Ida.
Progressive explained Appellants “did not even have the home inspected for
damages until [October 2023] after they filed the Petition.”
Hearing and June 5, 2024 Judgment
On May 16, 2024, the trial court held a hearing on Progressive’s Exceptions.
In pertinent part, counsel for Progressive argued that Appellants did not comply
with their homeowners’ insurance policy because they did not timely notify
Progressive about their alleged damages. Counsel for Progressive further
contended Progressive did not “have to argue prejudice.” Nevertheless, counsel for
Progressive contended Progressive was “prejudiced by this” lack of timely notice
and had “no way of knowing what damages are related to Hurricane Ida” because
“New Orleans has experienced multiple hail, wind, [and] flood events” since
Hurricane Ida. The trial court agreed that Progressive had been prejudiced by
Appellants’ failure to give notice to Progressive within one year, stating:
In that two years there [have] been multiple incidents of damage and there has been allegedly no damage or repairs done to the property. How is that not prejudicial to [Progressive]? They do not know what [Hurricane] Ida destroyed. They do not know what the last storm did or the last two or three storms did. Where is the damage?
6 Thereafter, the trial court orally granted Progressive’s Exceptions and dismissed
Appellants’ claims with prejudice. Of note, neither party introduced evidence
during the hearing.
On June 5, 2024, the trial court signed a judgment in accordance with its oral
ruling:
Considering the pleadings, memoranda, exhibits, argument of counsel, and the law,
IT IS ORDERED, ADJUDGED AND DECREED that Progressive Property Insurance Company’s Exceptions of No Right of Action and No Cause of Action are SUSTAINED, and all claims of Plaintiffs against Defendant in the Petition, along with attorney’s fees, interest, and costs be and are hereby DISMISSED, with prejudice;
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that Progressive Property Insurance Company’s Motion to Opt [Out] of the CMO is now MOOT.
Appellants’ timely appeal to this Court followed.
ASSIGNMENTS OF ERROR
In their brief to this Court, Appellants assert four assignments of error:
1. The trial court erred as a matter of law by failing to apply the proper legal standards for exceptions.
2. The trial court erred as a matter of law by granting the exceptions based upon an affirmative defense.
3. The trial court erred as a matter of law by ruling that Progressive was prejudiced by the timing of the notice of this claim despite no evidence of prejudice having been submitted.
4. The trial court erred as a matter of public policy and as a matter of law in dismissing the claim based upon an alleged breach of the cooperation clause in an insurance contract relating solely on the timing of the notice of the claim.
Prior to addressing Appellants’ assignments of error, we begin our discussion with
a preliminary matter.
7 PRELIMINARY MATTER
Whether Appellants Abandoned the No Right of Action Issue
In its brief to this Court, Progressive argues Appellants failed to brief any
alleged errors associated with the trial court sustaining its Exception of No Right of
Action and did not address the effect of the Legal Action Provision. Rather,
according to Progressive, Appellants’ brief discusses “only alleged errors
associated with that portion of the judgment sustaining [Progressive’s Exception of
No Cause of Action].” Progressive argues Appellants have thus abandoned their
right to challenge the trial court’s judgment insofar as it granted Progressive’s
Exception of No Right of Action.
Having reviewed Apellants’ brief, we disagree with Progressive’s
contentions. Rather, we find Appellants addressed the Exceptions collectively in
their brief by referring generally to the Exception of No Right of Action and the
Exception of No Cause of Action as “the exceptions.” Moreover, we point to Rule
2-12.4 of the Uniform Rules of the Courts of Appeal, which is titled “Appellant
Brief.” It states that “[a]ll assignments of error and issues for review shall be
briefed. The court may deem as abandoned any assignment of error or issue for
review which has not been briefed.” Rule 2-12.14, Uniform Rules, Courts of
Appeal (emphasis added). As the Louisiana Supreme Court has explained, a
“cardinal rule of statutory interpretation [is] that the word ‘may’ is permissive.”
Pierce Founds., Inc. v. Jaroy Constr., Inc., 2015-0785, p. 8 (La. 5/3/16), 190 So.3d
298, 304 (quoting Kelly v. State Farm Fire & Cas. Co., 2014-1921, p. 12 (La.
5/5/15), 169 So.3d 328, 336). Because Rule 2-12.4(B)(4) uses the permissive
language “may,” whether to consider an issue abandoned is up to the discretion of
this Court. Thus, not only do we find Progressive’s characterization of Appellants’
8 brief to be inaccurate, even if Appellants had failed to brief this issue we retain the
discretion to review it anyway. Accordingly, we will consider whether the trial
court was correct in granting each of Progressive’s Exceptions.
DISCUSSION
Based on our review of the record and the parties’ briefs, resolution of this
matter requires us to determine the following issues: 1) whether the trial court
erred in sustaining Progressive’s Exception of No Right of Action; and 2) whether
the trial court erred in sustaining Progressive’s Exception of No Cause of Action.
Progressive’s Exception of No Right of Action
Now, we consider whether the trial court erred in granting Progressive’s
Exception of No Right of Action. Progressive argued to the trial court that it should
grant this exception on the basis of Appellants’ failure to comply with the
provisions of their homeowners’ insurance policy. Appellants countered that
Progressive’s Exception of No Right of Action should fail because Progressive did
not prove prejudice corresponding with their alleged non-compliance. As noted
above, the trial court agreed with Progressive’s argument that Progressive had been
prejudiced by Appellants’ alleged non-compliance. We begin our analysis of this
issue with the standard of review and principles applicable to the exception of no
right of action.
As this Court recently held, “[a]n appellate court reviews a trial court’s
ruling on an exception of no right of action de novo.” Hurel v. Nat’l Fire & Marine
Ins. Co., 2025-0049, p. 8 (La. App. 4 Cir. 3/11/25), ___ So.3d ___, ___, 2025 WL
762645, at *4 (alteration in original) (quoting Crosby v. Waits, Emmett, Popp &
Teich, L.L.C., 2021-0054, p. 9 (La. App. 4 Cir. 10/6/21), 366 So.3d 323, 329). This
is “because an ‘exception of no right of action presents a question of law,’ such
9 that the appellate court’s review ‘involves determining whether the trial court was
legally correct in sustaining such exception.’” Id. See also N. Clark, L.L.C. v.
Chisesi, 2016-0599, p. 3 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1015 (citing
St. Pierre v. Northrop Grumman Shipbuilding, Inc., 2012-0545, p. 7 (La. App. 4
Cir. 10/24/12), 102 So.3d 1003, 1009). If the trial court had to make any factual
determinations in determining whether the plaintiff has a right of action, then the
appellate court reviews those for manifest error. Crosby, 2021-0054, p. 9, 366
So.3d at 329 (quoting Rebel Distribs. Corp., Inc. v. LUBA Workers’ Comp., 2013-
0749, p. 10 (La. 10/15/13), 144 So.3d 825, 833 n.8).
A defendant raises the objection of “[n]o right of action, or no interest in the
plaintiff to institute the suit” via a peremptory exception. La. C.C.P. art. 927(A)(6).
“The function of the peremptory exception is to have the plaintiff’s action declared
legally nonexistent, or barred by effect of law, and hence this exception tends to
dismiss or defeat the action.” La. C.C.P. art 923. Additionally, as this Court
recently explained, “[t]the function of an exception of no right of action is to
determine whether the plaintiff belongs to the class of persons to whom the law
grants the cause of action asserted in the suit.” Hurel, 2025-0049, p. 8, ___ So.3d
at ___, 2025 WL 762645, at *4 (alteration in original) (quoting Crosby, 2021-
0054, p. 10, 366 So.3d at 330). See also Hood v. Cotter, 2008-0215, 0237, p. 17
(La. 12/2/08), 5 So.3d 819, 829 (citing Indus. Cos. v. Durbin, 2002-0665, p. 12
(La. 1/28/03), 837 So.2d 1207, 1216). While the exception of no right of action
“assumes that the petition states a valid cause of action for some person,” it
“questions whether the particular plaintiff has standing to bring the lawsuit” and
“questions whether the plaintiff in the particular case is a member of the class that
has a legal interest in the subject matter of the litigation.’” Downtown Dev. Dist. of
10 City of New Orleans v. City of New Orleans, 2018-0726, p. 6 (La. App. 4 Cir.
5/8/19), 272 So.3d 917, 924 (quoting Howard v. Adm’rs of Tulane Educ. Fund,
2007-2224, p. 17 (La. 7/1/08), 986 So.2d 47, 60). Stated otherwise, when ruling on
an exception of no right of action, “a court must determine if the plaintiff has
standing and a legal interest to bring the suit.” Hurel, 2024-0049, pp. 8-9, ___
So.3d at ___, 2025 WL 762645, at *4 (citing Crosby, 2021-0054, p. 11, 366 So.3d
at 330-31. This determination is necessary because La. C.C.P. art. 681 states that
“[e]xcept as otherwise provided by law, an action can be brought only by a person
having a real and actual interest which he asserts.”
The burden of proving that the plaintiff does not have standing and a legal
interest to bring the suit rests with the defendant-exceptor. Crosby, 2021-0054, p.
10, 366 So.3d at 330 (quoting Williams v. Buck Kreihs Marine Repair, LLC, 2021-
0001, p. 4 (La. App. 4 Cir. 2/24/21), 314 So.3d 1040, 1044). See also Lestelle &
Lestelle v. Campo Music Shopping Ctr. Condominium Ass’n., 2021-0077, p. 4 (La.
App. 4 Cir. 3/23/21), 315 So.3d 331, 334 (quoting Hosp. Consultants, LLC v.
Angeron, 2009-1738, p. 6 (La. App. 4 Cir. 6/9/10), 41 So.3d 1236, 1240). The
parties may introduce evidence to support or controvert the exception of no right of
action “when the grounds thereof do not appear from the petition.” La. C.C.P. art.
931. However, while the parties may introduce evidence, “whether the defendant
may be able to defeat the plaintiff’s cause of action is immaterial to the
determination of an exception of no right of action.” Wirthman-Tag Constr. Co. v.
Hotard, 2000-2298, 2299, pp. 3-4 (La. App. 4 Cir. 12/19/01), 804 So.2d 856, 860
(citing Alside Supply Co. v. Ramsey, 306 So.2d 762, 763 (La. App. 4th Cir. 1975)).
Stated another way, “[t]he exception of no right of action relates solely to the
person of the plaintiff. It cannot be used to . . . urge that the plaintiff has no right
11 of action because there is a valid defense.” Id. at p. 3, 804 So.2d at 859 (citing
Honeywell, Inc. v. Sierra, 543 So.2d 594, 596 (La. App. 4th Cir. 1989)).
Accordingly, “[a]ny evidence admitted which does not relate to the plaintiff’s right
of action must therefore be referred to the merits of the case.” Id. at p. 4, 804 So.2d
at 860 (citing Nw. Ins. Co. v. Carpenters Dist. Council of New Orleans & Vicinity,
470 So.2d 218, 220 (La. App. 4th Cir. 1985)). This evidentiary rule applies to
“affirmative defenses, which may not be raised through the peremptory exception
of no right of action.” Id. (citing Comet Drilling Co. v. Tri-State Oil Tool Indus.,
Inc., 337 So.2d 567, 569 (La. App. 2d Cir. 1976)).
Reviewing Progressive’s Exception of No Right of Action de novo and with
the above principles in mind, we consider Appellants’ Petition and the evidence
offered by Progressive in support of the exception. Appellants alleged the
following in their Petition:
I.
[Progressive], a foreign insurance company authorized and presently doing business in the Parish of Orleans, State of Louisiana and at all material times was the dwelling insurance carrier for the residences located at 2139 Peniston Street, New Orleans, LA 70115, under Policy No. LAL148575. Said insurance policy had coverage for (A) Dwelling, (B) Other Structures, (C) Personal Property and (D) Loss of Use.
II.
At all times pertinent herein, Petitioners were the owner of the properties to be located at 2139 Peniston Street, New Orleans, LA 70115. III.
On August 28 & 29, 2021, Hurricane Ida caused severe and substantial wind damage to said residence, including roof damage and damage to the interior and exterior of the insureds’ residence.
12 Additionally, Progressive attached the homeowners’ insurance policy as an exhibit
to its Exception of No Right of Action. In pertinent part, the declarations page
listed the named insureds as Benjamin M. Pri-Tal and Marcy C. Gaston, i.e.,
Appellants, and provided their address as 2139 Peniston St., New Orleans, LA
70115-5817, i.e., the Property. The declarations page also listed that address as the
“Residence Premises.” Further, the declarations page provided that the policy
period was from October 22, 2020, to October 22, 2021. As seen in the above
quote, Appellants’ Petition alleged Hurricane Ida struck Louisiana during this time
period; and we have taken judicial notice of the date Hurricane Ida struck
Louisiana, August 29, 2021.
Appellants’ Petition and the homeowners’ insurance policy established
Appellants are the named insureds on the homeowners’ insurance policy issued by
Progressive; they are the owners of the subject property; and they are suing
Progressive for payment of damages to the property. Pursuant to our de novo
review, we conclude Appellants have standing and a legal interest in the subject
matter of this litigation and Progressive failed to meet its burden of demonstrating
otherwise. Appellants have a legal interest in the subject matter of the litigation at
issue and belong to the class of persons to whom the law grants the cause of action
asserted in their Petition, i.e., an insured’s cause of action against their insurer to
recoup damages after a covered loss. As summarized previously, in its Exception
of No Right of Action, Progressive relied on the argument that Appellants were not
entitled to damages because they breached the terms of their homeowners’
insurance policy by failing to comply with the Notice Provision. However, this
argument constituted a potential defense to Appellants’ suit because it related to
whether Progressive may be able to defeat Appellants’ cause of action and win on
13 the merits. As such, it should not have served as a basis for finding Appellants did
not have a right of action. See Wirthman-Tag Constr. Co., 2000-2298, 2299, pp. 3-
4, 804 So.2d at 859-60 (citations omitted). The trial court was legally incorrect in
granting Progressive’s Exception of No Right of Action on that basis. Accordingly,
we reverse the trial court’s June 5, 2024 judgment insofar as it sustained
Progressive’s Exception of No Right of Action.
Progressive’s Exception of No Cause of Action
Next, we consider whether the trial court erred in granting Progressive’
Exception of No Cause of Action. Progressive argued in its Exception of No Cause
of Action that Appellants breached the Notice Provision of their insurance policy,
which was the same argument Progressive made in its Exception of No Right of
Action. Progressive further argued it did not need to prove Appellants’ lack of
timely notice was prejudicial because the Legal Action Provision did not require
same. Nonetheless, Progressive contended Appellants’ untimely notice was
prejudicial to its investigation of their claim. Appellants countered that Progressive
had to prove the untimely notice was prejudicial yet failed to do so. We begin our
discussion of this issue with the standard of review and principles applicable to the
exception of no cause of action.
As with an exception of no right of action, “[a]n exception of no cause of
action presents a question of law, so an appellate court reviews a trial court’s ruling
on an exception of no cause of action de novo.” Cunningham v. City of New
Orleans, 2021-0532, p. 9 (La. App. 4 Cir. 3/30/22), 336 So.3d 977, 986 (first citing
Fertitta v. Regions Bank, 2020-0300, p. 7 (La. App. 4 Cir. 12/9/20), 311 So.3d
445, 451; then citing White v. New Orleans Ctr. for Creative Arts, 2019-0213,
0214, p. 7 (La. App. 4 Cir. 9/25/19), 281 So.3d 813, 819; and then citing Badeaux
14 v. Sw. Comput. Bureau, Inc., 2005-0612, 719, p. 7 (La. 3/17/06), 929 So.2d 1211,
1217). Also like the exception of no right of action, a defendant raises the
objection of no cause of action via a peremptory exception. La. C.C.P. art.
927(A)(5). As stated previously regarding the exception of no right of action, “The
function of the peremptory exception is to have the plaintiff’s action declared
legally nonexistent, or barred by effect of law, and hence this exception tends to
dismiss or defeat the action.” La. C.C.P. art. 923.
However, while “[t]he exceptions of no cause of action and no right of
action are often confused or improperly combined,” these “are separate and
distinct” objections. Warren v. HDI Glob. Ins. Co., 2021-570, p. 3 (La. App. 5 Cir.
5/16/22), 341 So.3d 1249, 1253 (citing Badeaux, 2005-0612, 719, p. 6, 929 So.2d
at 1216). As this Court has explained, a “primary difference[] between the
exception of no right of action and no cause of action lies in the fact that the focus
in an exception of no right of action is on whether the particular plaintiff has a
right to bring the suit, while the focus in an exception of no cause of action is on
whether the law provides a remedy against the particular defendant.” Downtown
Dev. Dist. of City of New Orleans, 2018-0726, pp. 5-6, 272 So.3d at 924 (citing
Badeaux, 2005-0612, 719, p. 6, 929 So.2d at 1216-17). That is, an “exception of no
cause of action questions whether the law extends a remedy against a defendant to
anyone under the factual allegations of a petition.” Cunningham, 2021-0532, p. 10,
336 So.3d at 986 (emphasis added) (quoting Fertitta, 2020-0300, p. 6, 311 So.3d at
450). The exception of no cause of action “tests ‘the legal sufficiency of the
petition by determining whether the law affords a remedy on the facts alleged in
the pleading.’” Id. In the context of an exception of no cause of action, the phrase
“‘cause of action[]’ . . . refers to the operative facts that give rise to the plaintiff’s
15 right to judicially assert the action against the defendant.” Grayson v. Gulledge,
55,214, p. 13 (La. App. 2 Cir. 9/27/23), 371 So.3d 1133, 1142 (citing Sharp v.
Melton, 53,508, p. 3 (La. App. 2 Cir. 5/20/20), 296 So.3d 1135, 1139).
“The moving party bears the burden of demonstrating that the [plaintiff’s]
petition fails to state a cause of action.” Cunningham, 2021-0532, p. 10, 336 So.3d
at 986 (citing Zeigler v. Hous. Auth. of New Orleans, 2012-1168, p. 7 (La. App. 4
Cir. 4/24/13), 118 So.3d 442, 449). However, “[n]o evidence may be introduced at
any time to support or controvert the objection that the petition fails to state a cause
of action.” La. C.C.P. art. 931. Rather, when “deciding an exception of no cause of
action a court can consider only the petition, any amendments to the petition, and
any documents attached to the petition.” Cunningham, 2021-0532, p. 10, 336 So.3d
at 986 (quoting Fertitta, 2020-0300, p. 7, 311 So.3d at 451). See also Ross v. State
Through Univ. of La. Sys., 2022-0382, p. 7 (La. App. 4 Cir. 11/18/22), 352 So.3d
90, 94 (quoting Green v. Garcia-Victor, 2017-0695, p. 4 (La. App. 4 Cir. 5/16/18),
248 So.3d 449, 453). That is, the court looks only at “the four corners of the
petition together with the attachments to the petition” in reviewing an exception of
no cause of action. Ziegler, 2012-1168, p. 7, 118 So.3d at 449 (citing Milburn v.
Emanuele, 2012-0235, p. 3 (La. App. 4 Cir. 6/13/12), 96 So.3d 638, 640). As the
Louisiana First Circuit has explained, “a well-established exception to this rule” is
“that evidence may be properly considered by the court in ruling on an exception
of no cause of action where evidence is admitted [at the hearing on the exception]
without objection. In those instances, the pleadings are considered to have been
enlarged.” City Nat’l Bank of Baton Rouge v. Brown, 599 So.2d 787, 789 (La. App.
1st Cir. 1992) (first citing Hartman Enters. v. Ascension-St. James Airport &
Transp. Auth., 582 So.2d 198, 202 n. 2) (La. App. 1st Cir. 1991); and then citing
16 Jordan v. Sweeney, 467 So.2d 569, 571 (La. App. 1st Cir. 1985)). See also
Stephenson v. Nations Credit Fin. Servs. Corp., 1998-1688, 1689, p. 14 (La. App.
1 Cir. 9/24/99), 754 So.2d 1011, 1021 (citations omitted); Sivils v. Mitchell, 1996-
2528, p. 4 (La. App. 1 Cir. 11/7/97), 704 So.2d 25, 27-28 (citations omitted).
As this Court has previously held, “[t]he standard for granting an exception
of no cause of action is not the likelihood that the plaintiff will prevail at trial.”
Doe v. Smith, 2005-0653, p. 2 (La. App. 4 Cir. 7/13/05), 913 So.2d 140, 141.
Instead, as the Louisiana Third Circuit Court of Appeal has explained:
An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleading[]. A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the well-pleaded facts, the plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law.
Davidson v. Sanders, 2018-308, p. 7 (La. App. 3 Cir. 12/6/18), 261 So.3d 889, 895
(internal citation omitted) (quoting Sun Coast Contracting Servs., Inc. v. Dien’s
Auto Salvage, Inc., 2014-307, p. 2 (La. App. 3 Cir. 10/1/14), 148 So.3d 964, 966-
67). See also City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., 1993-
0690, p. 29 (La. 7/5/94), 640 So.2d 237, 253 (citations omitted). In other words, a
court should grant an exception of no cause of action only when, “on the face of
the petition, accepting as true all its allegations, and with every doubt resolved [on]
the plaintiffs’ behalf, the petition” does not “state[] any valid cause of action for
relief.” Doe, 2005-0653, p. 2, 913 So.2d at 141 (citing Copeland v. Treasure Chest
Casino, L.L.C., 2001-1122, p. 3 (La. App. 1 Cir. 6/21/02), 822 So.2d 68, 70). This
is because “it appears beyond doubt that the plaintiff can prove no set of facts in
17 support of any claim which would entitle him to relief” or because “the plaintiff is
not entitled to the relief he seeks as a matter of law.” Williams v. Wood, 2017-
1049, p. 3 (La. App. 4 Cir. 10/31/18), 258 So.3d 834, 837-38 (quoting Badeaux,
2005-0612, 719, p. 7, 929 So.2d at 1217); Cunningham, 2021-0532, p. 11, 336
So.3d at 986 (quoting Fertitta, 2020-0300, p. 7, 311 So.3d at 451).
By contrast, “[i]f the petition states a cause of action on any ground or
portion of the demand, the exception should generally be overruled.” Williams,
2017-1049, p. 3, 258 So.3d at 838 (citing Everything on Wheels Subaru, Inc. v.
Subaru S. Inc., 616 So.2d 1234, 1236 (La. 1993)). In determining whether to
overrule an exception of no cause of action, a court should bear in mind that
“[e]very reasonable interpretation must be accorded the language used in the
petition in favor of maintaining its sufficiency and affording the plaintiff the
opportunity of presenting evidence at trial.” Id. (citing Indus. Cos., 2002-0665, p.
12, 837 So.2d at 1216).
With the above principles in mind during our de novo review, we find
Appellants set forth a cause of action in their Petition. Appellants’ Petition asserted
they held a policy of homeowners’ insurance issued by Progressive; experienced
damage to their property that fell within the scope of the coverage offered by their
policy; suffered this damage while the policy was in effect; and had not received
payment from Progressive for said damage. These allegations delineate an
insured’s cause of action against their insurer to recoup damages after a covered
loss when payment has not yet been tendered.
Moreover, we find the trial court erred procedurally in its grant of
Progressive’s Exception of No Cause of Action. As explained previously,
Progressive’s Exception of No Cause of Action was based on Appellants’ alleged
18 violation of the Notice Provision of the homeowners’ insurance policy, and
Progressive attached the policy as an exhibit to its Exceptions. The trial court
granted Progressive’s exception on that basis, finding Progressive was prejudiced
by Appellants’ violation of the policy, namely the Notice Provision. However, we
find the trial court erred in considering the provisions of the homeowners’
insurance policy because the policy was not incorporated into or attached to
Appellants’ Petition. Nor did Progressive offer the policy into evidence at the
hearing on its Exceptions (and without objection from Appellants), such that the
“the pleadings are considered to have been enlarged.” City Nat’l Bank of Baton
Rouge, 599 So.2d at 789 (first citing Hartman Enters., 582 So.2d at 202 n. 2); and
then citing Jordan, 467 So.2d at 571). The trial court should have solely
considered Appellants’ Petition in ruling on Progressive’s Exception of No Cause
of Action, and the Notice Provision and the corresponding prejudice issue should
not have even been factors in the trial court’s decision to grant or deny the
exception. Accordingly, we reverse the trial court’s judgment sustaining
Progressive’s Peremptory Exception of No Cause of Action.
DECREE
For the foregoing reasons, we reverse the trial court’s June 5, 2024
judgment, insofar as it granted Progressive’s Peremptory Exceptions of No Right
of Action and No Cause of action and dismissed Appellants’ claims against
Progressive with prejudice. Additionally, because the trial court ruled in its June 5,
2024 judgment that Progressive’s Motion to Opt Out had been rendered moot by
its grant of Progressive’s Exceptions, we reverse that part of the judgment too. We
remand this matter for further proceedings consistent with this Opinion.
REVERSED AND REMANDED