First Guar. Bank v. Attorneys Liability

515 So. 2d 1080, 1987 WL 3706
CourtSupreme Court of Louisiana
DecidedNovember 30, 1987
Docket87-C-1049
StatusPublished
Cited by9 cases

This text of 515 So. 2d 1080 (First Guar. Bank v. Attorneys Liability) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Guar. Bank v. Attorneys Liability, 515 So. 2d 1080, 1987 WL 3706 (La. 1987).

Opinion

515 So.2d 1080 (1987)

FIRST GUARANTY BANK OF HAMMOND
v.
ATTORNEYS LIABILITY ASSURANCE SOCIETY, LTD., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, et al.

No. 87-C-1049.

Supreme Court of Louisiana.

November 30, 1987.

*1081 Robert E. Leake, Jr., Alan Dean Weinberger, Hammett, Leake & Hammett, New Orleans, Glen G. Reid, Wildman, Harrold, Allen, Dixon & McDonnell, Memphis, Tenn., for applicant.

William Christovich, Joseph Ballard, Christovich & Kearney, Phillip A. Wittmann, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for respondents.

MARCUS, Justice.

First Guaranty Bank of Hammond (First Guaranty) filed this suit against the law firm of Jones, Walker, Waechter, Poitevent, Carrere & Denegre (Jones Walker) alleging legal malpractice. Attorneys' Liability Assurance Society, Ltd. (ALAS) was also made a defendant as the professional liability insurance carrier for Jones Walker pursuant to Louisiana's Direct Action Statute, La.R.S. 22:655.

ALAS, a mutual insurance society organized under the laws of Bermuda, filed a declinatory exception of lack of jurisdiction over the person of ALAS. La.Code Civ.P. art. 925(5). First Guaranty had relied on La.R.S. 22:1253(A) as a basis for jurisdiction over the person of ALAS and had served the Secretary of State using the procedure prescribed by section 1253(B). La.R.S. 22:1253(A) provides that the "transacting of business" in this state by an alien insurer without a certificate of authority is equivalent to the insurer appointing the Secretary of State as its agent for service of process. ALAS argued it was not "transacting an insurance business in this state" as defined by La.R.S. 22:1249(A) and that even if it was, its activities were covered by exception eight in Section 1249(B).[1] Therefore, ALAS argued it could not be served pursuant to La.R.S. 22:1253. ALAS also argued that the assertion of jurisdiction over the person of ALAS by a Louisiana court would violate due process. After a hearing, the trial judge sustained the exception of lack of jurisdiction over the person of ALAS and dismissed First Guaranty's claim against ALAS. The court of appeal affirmed.[2] It reasoned that personal jurisdiction over nonresident insurers is governed solely by the Insurance Code and that ALAS was not "transacting business" in the state within the meaning of section 1253 because its activities were covered by exception eight in section 1249(B). As a result, ALAS was not subject to the jurisdiction of the trial court. On First Guaranty's application, we granted certiorari to review the correctness of that decision.[3]

The sole issue presented for our review is whether the trial court has jurisdiction over the person of ALAS.

In order for a Louisiana court to exercise personal jurisdiction over a non-resident *1082 defendant, there must be a state statute that authorizes the court to do so and the exercise of personal jurisdiction over the particular nonresident defendant must not offend the "traditional notions of fair play and substantial justice" embodied in the due process clause of the fourteenth amendment. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Petroleum Helicopters, Inc. v. AVCO Corporation, 513 So.2d 1188 (La.1987).

A brief history of Louisiana's long-arm statute is necessary to resolve the issue before us. When Louisiana's long-arm statute, La.R.S. 13:3201, was first enacted in 1964, it provided:

A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident's
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or
(e) having an interest in, using, or possessing a real right or immovable property in this state.

One of the comments of the Louisiana Law Institute in 1964 stated in part:

It was not felt necessary to extend this section to insurance. Under R.S. 22:1253(A), there is an implied appointment of the Secretary of State as the agent for the service of process on any foreign or alien insurer which is not qualified to do business in Louisiana, but which transacts business in this state....[[4]]

Prior to the 1987 amendment, the long-arm statute had been amended several times to add other activities to the list, but nothing was ever added specifically to cover nonresident insurers.[5] Even though La. R.S. 22:1253(D) provides that "[n]othing in this Section contained shall limit or abridge the right to serve any process, notice or demand upon any insurer in any other manner now or hereafter permitted by law," there was arguably no other statute besides *1083 1253(A) that provided for jurisdiction over ALAS until the 1987 amendment to the long-arm statute.

In 1987, the Louisiana Legislature amended La.R.S. 13:3201 (the long-arm statute) by adding the following subsection:

B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.[[6]]

The addition of Subsection B makes other statutes (like La.R.S. 22:1253(A)) that assert personal jurisdiction over nonresident defendants unnecessary. "Now, under the express wording of the present Louisiana Long-arm Statute, the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements." Petroleum Helicopters, 513 So.2d at 1192. If personal jurisdiction over a particular nonresident defendant meets the constitutional requirements of due process, then the assertion of that jurisdiction by a Louisiana court is authorized under the long-arm statute. Because the long-arm statute pertains to jurisdiction and procedure, it may be applied retroactively. Petroleum Helicopters, 513 So.2d 1192; McBead Drilling Co. v. Kremco, Ltd., 509 So.2d 429 (La.1987).

Therefore, the narrow issue before this court is whether the assertion of personal jurisdiction over ALAS by a Louisiana court would offend "traditional notions of fair play and substantial justice" embodied in the due process clause of the fourteenth amendment. International Shoe, 326 U.S. 310, 66 S.Ct. 154. Accordingly, it is not necessary to review the court of appeal's determination that ALAS is not "transacting an insurance business in this state" within the meaning of La.R.S. 22:1249. It is certainly possible for a nonresident insurer to have sufficient "minimum contacts" with Louisiana for purposes of personal jurisdiction and yet not be "transacting the business of insurance in this state" as defined by the Insurance Code.

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Cite This Page — Counsel Stack

Bluebook (online)
515 So. 2d 1080, 1987 WL 3706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-guar-bank-v-attorneys-liability-la-1987.