Bertucci v. Lafayette Insurance Co.

809 So. 2d 494, 2001 La.App. 4 Cir. 2177, 2002 La. App. LEXIS 181, 2002 WL 307734
CourtLouisiana Court of Appeal
DecidedJanuary 30, 2002
DocketNos. 2001-C-2177, 2001-C-2224
StatusPublished
Cited by1 cases

This text of 809 So. 2d 494 (Bertucci v. Lafayette Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bertucci v. Lafayette Insurance Co., 809 So. 2d 494, 2001 La.App. 4 Cir. 2177, 2002 La. App. LEXIS 181, 2002 WL 307734 (La. Ct. App. 2002).

Opinion

hDENNIS R. BAGNERIS, SR., Judge.

STATEMENT OF THE CASE

Relators, Liberty Mutual Insurance Company, Liberty Mutual Fire Insurance Company, St. Paul Guardian Insurance Company or St. Paul Insurance Company, and Audubon Insurance Company,1 filed declinatory exceptions of improper venue which the district court denied.

FACTS

Following the January 23, 2000, hail storm, plaintiffs filed a class action lawsuit against 76 insurance companies alleging that the companies breached their contracts of insurance by failing to properly adjust the plaintiffs’ property damage claims.

DISCUSSION

Relators filed exceptions of venue on the basis that they did not issue policies of insurance to any of the named plaintiffs. They argued that East Baton [ ¡(Rouge Parish was the proper venue for suits against domestic or foreign insurers2 because neither of the applicable exceptions to the general venue, namely Louisiana Code of Civil Procedure article 76 (action on insurance contract) and article 76.1 (action on contract were applicable) were available where none of the named plaintiffs held policies with these defendants. The district court overruled the exceptions, finding venue proper under La. C.C.P. art. 593(B), which provides that “[a] n action brought against a class shall be brought in a parish of proper venue as to any member of the class as a defendant.” The court further intimated that venue would also be proper under the ancillary venue doctrine.3 Relators argue the district erred as a matter of law in three respects:

1). Because plaintiffs failed to plead a defendant class, art. 593(B) does not support venue in St. Bernard Parish.

2). Even if a defendant class was pled, the trial court erred in assuming that the class was proper for purposes finding venue proper under art. 593(B).

3). Plaintiffs cannot establish a defendant class.

4). To the extent the district court relied on the doctrine of ancillary venue, it was error to apply the doctrine to this case.

1. Failure to Plead a Defendant Class:

Respondents contend that the petition clearly reflects that a defendant class was pled. The relative portions of the petition are as follows:

VI.
lain addition to the individual defendants named herein, there is a class of insurance companies who are licensed to write policies of insurance in the State of Louisiana who in fact did issue policies of insurance to members of the proposed class of plaintiffs covering damages sustained to their property (ies) as a result of hail storm of January 23, 2000. Moreover these same insurance companies did either fail to properly adjust or [496]*496did unfairly and/or inadequately adjust the property damage claims of the proposed class of plaintiffs, all contrary and in breach to said policies of insurance.
VII.
The aforesaid defendants and the class of unnamed defendants are liable to plaintiffs severally for such damages as are reasonable in the premises.

Despite respondent’s protestations to the contrary, the petition fails to adequately plead a defendant class with respect to these insurers. As relator noted, the petition excluded the individual named defendants from membership in the proposed defendant class of unnamed insurance companies.4 Relators contend that the “reference to the unnamed defendants” as a “class” is inadvertent as there is no rationalization or justification for any formation. To the contrary, the failure to reference the named insurers as members of a class was the inadvertence.

Relators contend further that because plaintiffs only moved to certify a plaintiff class, plaintiffs’ intent was not to plead a defendant class, only a plaintiff class. It is puzzling why plaintiffs failed to move to certify the defendant class at the same time they moved to certify the plaintiff class, or even include a prayer that one be certified. Respondent’s brief does not clarify the issue. However, whatever the answer, the failure to move to certify should not be seen as a conclusive evidence of intent on the issue.

Despite noting, “[t] his court recognizes, as the defendants ably point out, the plaintiffs’ petition fails to contain a prayer or even a request that the defendant class be certified in due course during these proceedings. The petition does, Uhowever, contain some reference to a defendant class that allegedly would also be liable to the plaintiffs with the named defendants ... ”, the district concluded that, “[e]ven taken together with all of its arguable shortcomings and claimed lack of artful drafting, this court, nevertheless, concludes the plaintiffs’ petition successfully set [sic] forth a claim against a defendant class of insurance companies on the cause of action stated therein .... ”

The petition pled a defendant class; however, the petition failed to include the named defendants in that class of unnamed insurers. Accordingly, the general rules of venue apply to relators. The trial court erred in failing to sustain the exception to venue as no named plaintiff had a policy of insurance with relators such that venue would be established in St. Bernard Parish. The plaintiffs can amend their petition to correct any deficiencies in the drafting of their petition.

2. Assuming a Proper Defendant Class for Purposes of Deciding Venue.

Assuming arguendo, that the petition does plead a defendant class, then the question of whether it was proper to assume that a defendant class would be certified for the purposes of deciding venue should be addressed.

Recently, in Garrison v. Blood Ctr. For Southeast Louisiana, 2001-0302 (La.App. 4 Cir. 3/13/01) the district court assumed the presence of a properly certified defendant class. In Garrison, the trial court refused to rule on venue until after the class had been certified. This court ruled, “A trial court is required to rule upon a venue exception before ruling on any other exception or issue in a case [,]” and that “[o]nly if venue is proper should the trial court proceed to rule upon other exceptions or issues.” Id. at p. 1.

[497]*497Relators do not contend that the trial court should have certified the defendant class, indeed no motion was pending. Rather, relators contend essentially that the normal rules of venue should be applicable and advances a | sproposed rule that “only the named parties should be considered in determining venue in a class action saying that the rule would preserve the viability of class actions, ‘while at the same time guaranteeing] that the Code’s venue provisions are given effect.’” The argument fails to recognize that C.C.P. art. 593(B) is a venue provision. The article provides that “[a] n action brought against a class shall be brought in a parish of proper venue as to any member of the class as a defendant.” Accordingly, a rule such as relators propose would scarcely guarantee that the Code’s venue provision are given effect when one is simply ignored. Furthermore, it would be ridiculous to consider venue in a class action without considering the rules of venue for a class action. The argument has no merit.

a. Can Plaintiffs Establish a Defendant Class?

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Related

Bertucci v. Lafayette Ins. Co.
851 So. 2d 1179 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
809 So. 2d 494, 2001 La.App. 4 Cir. 2177, 2002 La. App. LEXIS 181, 2002 WL 307734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertucci-v-lafayette-insurance-co-lactapp-2002.