Chacon v. Lykes Bros. Steamship Co.

797 So. 2d 105, 2001 La. App. LEXIS 2370, 2001 WL 1359769
CourtLouisiana Court of Appeal
DecidedSeptember 5, 2001
DocketNo. 2001-C-0495
StatusPublished

This text of 797 So. 2d 105 (Chacon v. Lykes Bros. Steamship 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
Chacon v. Lykes Bros. Steamship Co., 797 So. 2d 105, 2001 La. App. LEXIS 2370, 2001 WL 1359769 (La. Ct. App. 2001).

Opinion

JACHARLES R. JONES, Judge.

The plaintiff, Lucio Chacon, seeks our supervisory jurisdiction to review judgment granting the Motion for summary [107]*107judgment filed by the defendant, United Kingdom Mutual Steamship Assurance Association (hereinafter “United Kingdom”), and dismissing Mr. Chacon’s lawsuit with prejudice. The judgment was orally rendered on January 12, 2001, and a written judgment was signed on January 16, 2001. Mr. Chacon filed his notice of intention to seek supervisory writs on February 12, 2001 and sought an extension of the return date. The district court signed an order directing that the writ application be filed on or before March 12, 2001. The writ application was timely filed. On March 20, 2001, the respondent filed a motion to dismiss the writ application, arguing that the judgment was a final appealable judgment. Mr. Chacon filed a reply brief on April 2, 2001.

FACTS

Mr. Chacon, a seaman, allegedly seeks damages suffered while employed by Lykes Brothers Steamship, Co., Inc. (hereinafter “Lykes”) as a wiper aboard the S/S Louise Lykes. Mr. Chacon filed suit against Lykes in March of 1995. Lykes filed for bankruptcy in October of 1995, and all legal proceedings pending against Lykes were stayed. According to the respondent, the Lykes bankruptcy estate is | pstill under administration. In August of 1998 the bankruptcy court entered an order permitting Mr. Chacon to file a direct action against Lykes’ insurer, United Kingdom. In November of 2000 United Kingdom filed a motion for summary judgment seeking the dismissal of the plaintiffs action. United Kingdom alleged that it was undisputed that the bankruptcy order permitting the plaintiff to sue United Kingdom only allowed Mr. Chacon to collect his excess tort claim from United Kingdom because the applicable deductible was deemed waived. The deductible on the policy was $100,000. Averring that Mr. Chacon’s claim did not exceed the deductible on the policy, United Kingdom maintained that summary judgment should be rendered in its favor dismissing this lawsuit. Following a hearing, the district court granted the motion and dismissed Mr. Chacon’s lawsuit.

DISCUSSION

The first issue to be addressed is whether the judgment dismissing Mr. Cha-con’s action is a final appealable judgment.

The respondent alleges that the judgment rendered by the trial court is a final appealable judgment because it dismissed Mr. Chacon’s entire lawsuit. The language of the judgment supports the respondent’s allegation that the entire lawsuit was dismissed. However, both parties admit that the present lawsuit was originally filed against Lykes, and that the proceedings against Lykes have been stayed. Accordingly, the district court did not have the authority to take any action to dismiss the case against Lykes. The judgment was rendered pursuant to a motion for summary judgment that was only filed on behalf of United Kingdom. For this reason, the trial court was only dismissing the case as to United Kingdom. Additionally, the judgment fails to meet the requirements for finality as specified in La. C.C.P. 1915, which provides in relevant part:

laArt. 1915. Partial final judgment; partial judgment; partial exception; partial summary judgment
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party [108]*108plaintiffs, third party defendants, or in-terveners.
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(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
* * «=
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the 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.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the pmpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties, (emphasis added)

In the instant case, we conclude that at least one other party remains in the litigation, thus, the judgment is a partial summary judgment. Further, the judgment was not designated as a final judgment by the court or the parties; thus, it is not appealable. Accordingly, the motion to dismiss has no merit.

|4The next issue to be addressed by the court is whether the district court erred in granting United Kingdom’s motion for summary judgment. The sole issue presented in the motion was whether Mr. Chacon would be able to prove that his damages exceeded $100,000, the amount of the deductible on the policy covering Lykes.

A summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LA. C.C.P. art. 966 B. A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Coates v. Anco Insulations, Inc., 2000-1331 (La.App. 4 Cir. 3/21/01), 786 So.2d 749, citing Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992).

Although the summary judgment procedure is now favored, the burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy [109]*109his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

| ¡¿Thus, the initial inquiry in determining the merits of a motion for summary judgment is whether the movant made a prima facie showing that the motion should' be granted.

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Bluebook (online)
797 So. 2d 105, 2001 La. App. LEXIS 2370, 2001 WL 1359769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chacon-v-lykes-bros-steamship-co-lactapp-2001.