Eagle Pacific Insurance Co. v. Production Systems, Inc.

887 So. 2d 18, 2003 La.App. 1 Cir. 0457, 2004 La. App. LEXIS 1816, 2004 WL 1563001
CourtLouisiana Court of Appeal
DecidedJuly 14, 2004
DocketNo. 2003 CA 0457
StatusPublished
Cited by1 cases

This text of 887 So. 2d 18 (Eagle Pacific Insurance Co. v. Production Systems, 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
Eagle Pacific Insurance Co. v. Production Systems, Inc., 887 So. 2d 18, 2003 La.App. 1 Cir. 0457, 2004 La. App. LEXIS 1816, 2004 WL 1563001 (La. Ct. App. 2004).

Opinions

J^PETTIGREW, J.

Eagle Pacific Insurance Company (Eagle) appeals a judgment whereby the trial court held a liquidated subsidiary corporation liable for unpaid insurance premiums but failed to cast the corporate liquidator or the shareholders of its liquidated parent corporation in judgment for the debt. Based on the unique facts and circumstances herein, and finding no manifest error in the trial court’s judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the record, Eagle provided workers’ compensation insurance to two related companies, Buzzy P, Inc.1 (Buzzy P) and Kelley Consulting Incorporated (KCI). Buzzy P was a wholly owned subsidiary of KCI. William Kelley was the owner of 100 percent of the outstanding shares of KCI. His wife, Pamela Kelley, held a community property interest in the KCI stock.

Eagle first issued a “Workers Compensation And Employers Liability Insurance Policy” to Buzzy P and KCI for the policy period October 1, 1995 to October 1, 1996. The policy was automatically renewed in October 1996 for another year. The policy contained a compensating balance plan endorsement whereby the insureds shared in the risk that payments might have to be made to claimants. Under the policy, premium adjustments were to occur on a monthly basis beginning seven months after the policy inception date and continuing on a monthly basis until eighteen months after the policy inception date. After the eighteenth month from the policy inception date, the premium adjustments were to occur on an annual basis for a period of four years. In order to keep its insureds apprised of all claim activity, Eagle provided monthly “loss-run” reports that set forth the amount paid and all other pertinent information for each claimant on the policy.

The premium at issue in this case arose from an employee claim made by Joel Per-lander against Buzzy P. According to the record, Perlander was injured in July 1997 and settled his claim approximately one year later for $150,000.00. Notwithstanding this settlement in August 1998, the Perlander claim was erroneously coded to another company 13and thus, omitted from Buzzy P’s monthly loss-run reports. Per-lander’s settlement resulted in an additional premium due and owing to Eagle in the amount of $139,433.00. However, Eagle did not bill Buzzy P for this additional premium until April 1999.

In July 1998, liquidation proceedings commenced to voluntarily dissolve Buzzy P [20]*20and KCI without court proceedings. Mr. Kelley was appointed liquidator for both corporations. In connection with the liquidation proceedings, Mr. Kelley placed advertisements in two newspapers notifying the public of the pending liquidation. In August 1998, the Louisiana Secretary of State authorized the dissolution and liquidation of both Buzzy P and KCI. Thereafter, on August 28, 1998, Mr. Kelley, as liquidator, transferred the assets of Buzzy P to KCI in exchange for the surrender and cancellation of all outstanding shares of stock. He then transferred the assets of KCI to himself as the sole shareholder of KCI in exchange for the surrender and cancellation of all outstanding shares of KCI stock.

According to Mr. Kelley, at the time of the dissolution of his two companies, he did not consider Eagle to be a potential creditor. Although Perlander was injured in July 1997, Eagle had inadvertently been attributing this claim to another, unrelated company. It was not until mid 1998 that Eagle discovered this error concerning the Perlander claim. Nonetheless, monthly loss-run reports from Eagle to Buzzy P between July 1998 and April 1999 continued to omit any reference to the Perlander claim or the possibility that any additional premiums would be due. In fact, during a December 1998 meeting with Mr. Kelley, representatives from Eagle not only failed to advise Mr. Kelley of the Perlander claim, but indicated to Mr. Kelley that based on their rough calculations, he would be due a significant refund because of a successful subrogation claim by Eagle. Mr. Kelley later received a refund check from Eagle dated April 1, 1999 for $167,515.00.

Shortly thereafter, in a “Credit Memo” dated April 19, 1999, Eagle purportedly tried to notify Mr. Kelley, through his insurance agent, the Rosenthal Agency, that he owed Eagle $139,433.00 in unpaid premiums. According to testimony from Eagle’s representative, the Perlander claim was the reason for the premium adjustment. This came as a complete surprise to Mr. Kelley and the Rosenthal Agency.

Mr. Kelley refused to pay the additional premiums, asserting that the companies were legally liquidated and that he did not owe the money, as either liquidator or shareholder in |4possession of the corporate assets. Eagle then filed the instant suit against Production Systems, Inc., Buz-zy P, KCI, Mr. Kelley, as liquidator and shareholder, and Mrs. Kelley. Eagle argued that Mr. and Mrs. Kelley had breached a fiduciary duty owed to Buzzy P and its creditors. Eagle further claimed that Mr. and Mrs. Kelley had received an unlawful distribution of assets from Buzzy P and KCI thereby causing the companies to become insolvent and unable to pay the outstanding premiums owed to Eagle. Thus, Eagle maintained, the named defendants were liable to it for $139,433.00 plus interest, attorney fees, and costs.

The matter proceeded to a bench trial on June 11, 2002, at which time the court heard from various witnesses and accepted documentary evidence into the record. The court rendered judgment the following day, providing extensive oral reasons for same. The court found that the premium balance of $139,433.00 was correctly calculated by Eagle and was attributable to the settlement of the Perlander claim. The court concluded that Buzzy P was, in fact, liable to Eagle for $139,433.00, plus judicial interest and all costs not previously assessed. However, with regard to Eagle’s claims against Mr. and Mrs. Kelley, Production Systems, Inc., and KCI, the court dismissed these claims with prejudice, finding that Mr. Kelley had strictly complied with the liquidation statutes, thus [21]*21protecting him, as well as the other remaining defendants, from any personal liability for the debt owed to Eagle.

It is from this judgment that Eagle has appealed, assigning the following specifications of error:

1. The trial court erred in finding that Mr. [Kelley], as liquidator of both [KCI] and PSI/Buzzy P, did everything he was supposed to do under La. R.S. 12:145 and further erred in concluding that Mr. [Kelley], as liquidator of both entities, was not liable to Eagle Pacific.
2. The trial court erred in finding that the distributions to [KCI] and then from [KCI] to Mr. and Ms. [Kelley] were lawful because the distributions left PSI/Buzzy P and [KCI] unable to pay their lawfully owed obligations to Eagle Pacific.

LIQUIDATOR LIABILITY

In its first assignment of error, Eagle asserts the trial court erred in not holding Mr. Kelley liable as liquidator of both Buz-zy P and KCI. In support of its argument, Eagle cites to La. R.S. 12:147(B) and contends Mr. Kelley, as liquidator, is personally liable for failing to provide Eagle with notice of the liquidation of Buzzy P.

| sIt is well settled in Louisiana law that a liquidator bears a fiduciary duty not only to the corporation being liquidated, but also to its shareholders and creditors. Edwins v. Lilly, 422 So.2d 1217, 1222 (La.App. 1 Cir.1982), writs denied, 426 So.2d 178, 180 (La.1983).

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887 So. 2d 18, 2003 La.App. 1 Cir. 0457, 2004 La. App. LEXIS 1816, 2004 WL 1563001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eagle-pacific-insurance-co-v-production-systems-inc-lactapp-2004.