Dempster v. A.P. Green Industries, Inc.

753 So. 2d 330, 99 La.App. 4 Cir. 2198, 2000 La. App. LEXIS 253, 2000 WL 202309
CourtLouisiana Court of Appeal
DecidedJanuary 26, 2000
DocketNo. 99-CA-2198
StatusPublished
Cited by2 cases

This text of 753 So. 2d 330 (Dempster v. A.P. Green Industries, Inc.) 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
Dempster v. A.P. Green Industries, Inc., 753 So. 2d 330, 99 La.App. 4 Cir. 2198, 2000 La. App. LEXIS 253, 2000 WL 202309 (La. Ct. App. 2000).

Opinion

| .KLEES, Chief Judge.

Appellants were sued under the Louisiana Direct Action Statute, La.Rev.Stat. Ann. 22:655, in Orleans Parish. In response to this petition, appellants filed a declinatory exception of improper venue, which was overruled by the trial court. Appellants filed a timely appeal seeking review of the trial court’s decision as to the proper venue for this action. For the reasons stated more fully herein, we affirm the trial court’s judgment.

FACTS

On March 19, 1999, Melien J. Demster, Sr. filed this suit for damages alleging that he sustained injuries as a result of asbestos exposure while working for Avondale Shipyards. Plaintiff named multiple defendants in the action, alleging that each of the defendants are liable in solido: Eagle, Inc., Reilly-Benton, Inc., and Taylor-Seid-enbach, Inc. (manufacturers and distributors of asbestos-containing products); Avondale Industries, Inc. and its executive officers, six of whom are deceased; Commercial Union Insurance Company, Highlands Insurance Company, American Motorists Insurance Company, and Travelers Insurance Company (Avondale insurers at the time of plaintiffs employment); and Steven Kennedy and Pete Territo (living Avondale executive officers).

Plaintiff sued Steven Kennedy and Pete Territo individually as solidary obligors. The Avondale insurers were sued under the Louisiana Direct Action Statute, La. Rev.Stat. Ann. 22:655 for the negligence of six deceased executive officers. The lawsuit was filed in the Civil District Court for the Parish of Orleans. |2The Avondale insurers filed a declinatory exception of improper venue, and the trial court denied the exception. Thereafter, the Avondale insurers filed a petition for devolutive appeal, which was granted by the trial court.

DISCUSSION

The primary issue presented for our review is whether the trial court failed to correctly apply the provisions of the Direct Action Statute and the holding of this Court in Boatwright v. Metro. Life Ins. Co., 671 So.2d 553 (La.App. 4th Cir.1996), writ denied, 96-1327 (La.6/28/96), 675 So.2d 1130. The Louisiana Direct Action Statute presently provides that an injured party has a direct action against an insurer within the terms and limits of the policy and that an injured party may bring such an action

against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. ⅛2 only.

La.Rev.Stat. Ann. 22:655, subd. B(l) (emphasis added).

Prior to 1989, the statute provided for venue in any parish of proper venue against either the insured or the insurer “under the general rules of venue prescribed by Code of Civil Procedure Art. 42.” The Louisiana Supreme Court interpreted the prior version of the statute providing for venue under La.Code Civ. Proc. Ann. art. 42 to “include all of the permissive and mandatory exceptions to La. C.C.P. art. 42, which appear in La. C.C.P. art. 71 to La. C.C.P. art. 85.” Kellis v. Farber, 523 So.2d 843 (La.1988). In 1989, the legislature amended the statute, [332]*332| Srestricting venue against a direct action insurer to those provisions in art. 42 only. The exceptions to art. 42 do not apply to cases against direct action insurers.

In Boatwright, another case filed by an Avondale employee against Avondale insurers for alleged exposure to asbestos, this Court clearly discussed the aforementioned amendment to the Direct Action Statute. Boatwright, 671 So.2d at 555-56. Although Boatwright involved an exception of improper venue filed by the Avondale insurers, that case did not discuss the main issue involved in this case — -whether the Direct Action Statute provides that venue is proper in the parish where an insured was domiciled at the time of his death.

The Direct Action Statute clearly provides that a direct action may be brought against an insurer alone when the insured is deceased. La.Rev.Stat. Ann. 22:655, subd. B(l)(f). With regard to the issue of venue of such an action, the Third Circuit explicitly rejected the contention that venue at the tortfeasor’s domicile is lost when the tortfeasor dies. Hobbs. v. Fireman’s Fund Am. Ins. Co., 339 So.2d 28, 35 (La. App. 3d Cir.1976), writ denied, 341 So.2d 896 (La.1977).

In Hobbs, the plaintiff sustained serious injuries in an automobile accident while riding as a guest passenger in his father’s car, which was being driven by Phillips. Id. at 32. As a result of her injuries, Phillips died within minutes after the accident. Id. at 34. Subsequently, Hobbs ■ sued Phillips’ primary and excess insurers in Rapides Parish, Phillips’ domicile. Id. at 31. Both insurers excepted as to venue arguing that Phillips, being deceased, had no domicile and that under the Direct Action Statute, venue could only be proper in East Baton Rouge Parish or in the parish where the accident occurred, Avoyelles Parish. Id. at 35. The court in Hobbs rejected this argument. The court reasoned that if a decedent has no domicile, in every personal action brought against a deceased party “venue under |4the direct action statute provided by LSA-C.C.P. art. 42(1) would be lost.” Id. The court held that, as to the insurer, venue at the tort-feasor’s domicile is not lost when the tort-feasor dies. Id.

Based on Hobbs, venue at the tort-feasor’s domicile is not lost when the tort-feasor dies. Although appellants argue that the decision in Hobbs may have lost its relevance and is not binding authority here, we find this argument to be without merit. The decision in Hobbs has not been overruled or judicially or legally challenged in any way. The decision in Hobbs is directly on point in the instant case and will be applied herein.

In the present case, two of the deceased Avondale executive officers were domiciled in Orleans Parish at the times of their deaths. Therefore, according to Hobbs, venue under the Direct Action Statute would be proper in Orleans Parish, at least with respect to those executive officers. We must next consider the issue of whether venue is also proper as to the executive officers and their insurers who are not domiciled in Orleans Parish.

In this case, we must consider whether La.Code of Civ. Proc. Ann. art. 73 can be applied to cases involving the Direct Action Statute. This issue has been squarely addressed by a panel of this Court in Gaspard v. Louisiana Farm Bureau Insurance Co., 96-2148 (LaApp. 4 Cir. 11/6/96), 684 So.2d 55, wherein the trial court’s granting of the insurers’ exception of improper venue was reversed. In Gaspard plaintiff, an Orleans Parish domiciliary, sued the tortfeasor and its insurer and her own UM carrier in Orleans Parish.

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Bluebook (online)
753 So. 2d 330, 99 La.App. 4 Cir. 2198, 2000 La. App. LEXIS 253, 2000 WL 202309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempster-v-ap-green-industries-inc-lactapp-2000.