NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1056 AND 09-1508
JONATHON GUILLORY VERSUS PROGRESSIVE SECURITY INS., ET AL.
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2006-1743 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE
********** SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Elizabeth A. Pickett, Judges.
APPEALS CONSOLIDATED AND DISMISSED.
Matthew C. Nodier Walsh & Bailey Post Office Box 3157 Baton Rouge, LA 70821 (225) 383-8649 FOR DEFENDANT/APPELLANT: American Home Assurance Company
Brendan P. Doherty Gieger, Laborde & Laperouse 701 Poydras Street, Suite 4800 New Orleans, LA 70139-4800 (504) 561-0400 FOR DEFENDANT/APPELLANT: American Home Assurance Company Joseph R. Pousson, Jr. Plauché, Smith & Nieset Post Office Box 1705 Lake Charles, LA 70602 (337) 436-0522 FOR DEFENDANT/APPELLEE: Progressive Security Insurance Company
Richard E. Wilson Cox, Cox & Filo 723 Broad Street Lake Charles, LA 70601 (337) 436-6611 FOR PLAINTIFF/APPELLEE: Jonathon Guillory
Claude P. Devall Newman, Hoffoss & Devall 1830 Hodges Street Lake Charles, LA 70601 (337) 439-5788 FOR PLAINTIFF/APPELLEE: Jonathon Guillory
Kelly E. Heinen Attorney at Law 200 West Congress, Suite 650 Lafayette, LA 70501 (337) 235-5656 FOR INTERVENORS/APPELLEES: New Hampshire Insurance Company Cox Communications, Lafayette COOKS, Judge.
On September 3, 2009, this court issued a rule for the appellant to show cause,
by brief only, why the appeal in this court’s docket number 09-1056 should not be
dismissed as “having been taken from a partial judgment not designated immediately
appealable pursuant to La.Code Civ.P. art. 1915(B) and without express reasons
pursuant to R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 113.”
The defendant/appellant, American Home Assurance Company (American), filed a
response to this court’s rule on September 17, 2009, asserting that the trial court had,
subsequent to this court’s rule to show cause, signed an amended judgment
designating as final the judgment of which appellate review is being sought. The
plaintiff, Jonathon Guillory, filed his reply on September 28, 2009, submitting no
opposition to allowing this appeal to proceed but noting some discrepancies with
American’s argument. For the reasons assigned below, we dismiss the appeals.
The instant litigation arises out of a vehicular collision, wherein the plaintiff
was operating a truck owned by Cox Enterprises. The plaintiff sued the other driver,
Yvette Clark; Progressive Security Insurance Company, as insurer of Clark; and
American Home Assurance Company, as uninsured/underinsured motorist insurer for
the Cox truck that the plaintiff was operating. Subsequently, Cox Communications,
Lafayette and New Hampshire Insurance Company intervened.
Thereafter, the plaintiff filed a motion for summary judgment seeking a
declaration that the uninsured/underinsured motorist rejection form at issue was
invalid, and therefore, uninsured/underinsured motorist coverage was in effect at the
time of the accident. American filed a cross-motion for summary judgment seeking
a finding that the uninsured/underinsured motorist rejection was valid.
1 Following a hearing, the trial court issued a judgment granting the plaintiff’s
motion for summary judgment. American timely filed a motion for new trial, and
following a subsequent hearing, the trial court denied American’s motion for
summary judgment and American’s motion for new trial. Subsequent to the trial
court’s rulings, American filed an application for supervisory relief seeking review
of the denial of their motion for summary judgment, and the first appeal was lodged
in this court docketed under number 09-1056. American also filed a motion to certify
the judgment granting the plaintiff’s motion for summary judgment as final. On
September 1, 2009, the trial court signed an amended judgment, which states the
following:
Pursuant to La. Code of Civil Procedure arts. 1911 and 1915, the Court finds no just reason for delay, and accordingly, the Court finds that this Judgment [the February 25, 2009 judgment granting the plaintiff’s motion for summary judgment] should be considered FINAL and immediately appealable. This Court further signed a judgment dated June 16, 2009[,] denying the Motion for Summary Judgment and Motion for New Trial filed by defendant, American Home Assurance Company. This judgment should also be considered FINAL and immediately appealable pursuant to the above[-]listed articles.
After the trial court entered the above-quoted judgment, American filed another
motion for appeal. Thereafter, a second appeal was lodged in this court bearing
docket number 09-1508. In the interest of judicial efficiency, we consolidate the two
pending appeals, docketed in this court under numbers 09-1056 and 09-1508.
In this case, the trial court did not provide express reasons for its order that
designated the partial summary judgment as final for appeal purposes. In Fakier v.
State of La., Bd. Of Sup’rs for Univ. Of La. Sys., 08-111(La.App. 3 Cir. 5/28/08), 983
So.2d 1024, 1027, this court set forth the standard of review applicable in this
instance as follows:
2 The proper standard of review for an order designating a judgment as final and immediately appealable, when the order is accompanied by explicit reasons for the certification, is whether the trial court abused its discretion. However, if the trial court fails to give explicit reasons for the certification, the appellate court should conduct a de novo determination of whether the certification was proper. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113.
In Messinger, the Louisiana Supreme Court listed the non-exclusive factors for
considering whether a partial judgment should be certified as appealable. The factors
include:
1) The relationship between the adjudicated and unadjudicated claims; 2) The possibility that the need for review might or might not be mooted by future developments in the trial court; 3) The possibility that the reviewing court might be obliged to consider the issue a second time; and 4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.
Id. at 1122, citing Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364
(3d Cir. 1975).
In response to this court’s order that appellants show cause why the appeal
should not be dismissed, American admits that the ruling at issue does not contain
express reasons for its designation as immediately appealable. American argues that
the appeal should be maintained because the litigation would be terminated if the trial
court’s ruling is reversed. In opposition, the plaintiff contends that a reversal would
not terminate the litigation because the plaintiff’s claim for bad faith handling will
proceed independent of the determination on uninsured/underinsured motorist
coverage. Additionally, there is a workers’ compensation intervention claim pending.
American argues that a reversal of the trial court’s ruling would “presumably” dismiss
the workers’ compensation intervention claim.
The plaintiff directs this court to the recent dismissal of an appeal seeking
review of a judgment granting a motion for partial summary judgment finding that
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1056 AND 09-1508
JONATHON GUILLORY VERSUS PROGRESSIVE SECURITY INS., ET AL.
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2006-1743 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE
********** SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Elizabeth A. Pickett, Judges.
APPEALS CONSOLIDATED AND DISMISSED.
Matthew C. Nodier Walsh & Bailey Post Office Box 3157 Baton Rouge, LA 70821 (225) 383-8649 FOR DEFENDANT/APPELLANT: American Home Assurance Company
Brendan P. Doherty Gieger, Laborde & Laperouse 701 Poydras Street, Suite 4800 New Orleans, LA 70139-4800 (504) 561-0400 FOR DEFENDANT/APPELLANT: American Home Assurance Company Joseph R. Pousson, Jr. Plauché, Smith & Nieset Post Office Box 1705 Lake Charles, LA 70602 (337) 436-0522 FOR DEFENDANT/APPELLEE: Progressive Security Insurance Company
Richard E. Wilson Cox, Cox & Filo 723 Broad Street Lake Charles, LA 70601 (337) 436-6611 FOR PLAINTIFF/APPELLEE: Jonathon Guillory
Claude P. Devall Newman, Hoffoss & Devall 1830 Hodges Street Lake Charles, LA 70601 (337) 439-5788 FOR PLAINTIFF/APPELLEE: Jonathon Guillory
Kelly E. Heinen Attorney at Law 200 West Congress, Suite 650 Lafayette, LA 70501 (337) 235-5656 FOR INTERVENORS/APPELLEES: New Hampshire Insurance Company Cox Communications, Lafayette COOKS, Judge.
On September 3, 2009, this court issued a rule for the appellant to show cause,
by brief only, why the appeal in this court’s docket number 09-1056 should not be
dismissed as “having been taken from a partial judgment not designated immediately
appealable pursuant to La.Code Civ.P. art. 1915(B) and without express reasons
pursuant to R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 113.”
The defendant/appellant, American Home Assurance Company (American), filed a
response to this court’s rule on September 17, 2009, asserting that the trial court had,
subsequent to this court’s rule to show cause, signed an amended judgment
designating as final the judgment of which appellate review is being sought. The
plaintiff, Jonathon Guillory, filed his reply on September 28, 2009, submitting no
opposition to allowing this appeal to proceed but noting some discrepancies with
American’s argument. For the reasons assigned below, we dismiss the appeals.
The instant litigation arises out of a vehicular collision, wherein the plaintiff
was operating a truck owned by Cox Enterprises. The plaintiff sued the other driver,
Yvette Clark; Progressive Security Insurance Company, as insurer of Clark; and
American Home Assurance Company, as uninsured/underinsured motorist insurer for
the Cox truck that the plaintiff was operating. Subsequently, Cox Communications,
Lafayette and New Hampshire Insurance Company intervened.
Thereafter, the plaintiff filed a motion for summary judgment seeking a
declaration that the uninsured/underinsured motorist rejection form at issue was
invalid, and therefore, uninsured/underinsured motorist coverage was in effect at the
time of the accident. American filed a cross-motion for summary judgment seeking
a finding that the uninsured/underinsured motorist rejection was valid.
1 Following a hearing, the trial court issued a judgment granting the plaintiff’s
motion for summary judgment. American timely filed a motion for new trial, and
following a subsequent hearing, the trial court denied American’s motion for
summary judgment and American’s motion for new trial. Subsequent to the trial
court’s rulings, American filed an application for supervisory relief seeking review
of the denial of their motion for summary judgment, and the first appeal was lodged
in this court docketed under number 09-1056. American also filed a motion to certify
the judgment granting the plaintiff’s motion for summary judgment as final. On
September 1, 2009, the trial court signed an amended judgment, which states the
following:
Pursuant to La. Code of Civil Procedure arts. 1911 and 1915, the Court finds no just reason for delay, and accordingly, the Court finds that this Judgment [the February 25, 2009 judgment granting the plaintiff’s motion for summary judgment] should be considered FINAL and immediately appealable. This Court further signed a judgment dated June 16, 2009[,] denying the Motion for Summary Judgment and Motion for New Trial filed by defendant, American Home Assurance Company. This judgment should also be considered FINAL and immediately appealable pursuant to the above[-]listed articles.
After the trial court entered the above-quoted judgment, American filed another
motion for appeal. Thereafter, a second appeal was lodged in this court bearing
docket number 09-1508. In the interest of judicial efficiency, we consolidate the two
pending appeals, docketed in this court under numbers 09-1056 and 09-1508.
In this case, the trial court did not provide express reasons for its order that
designated the partial summary judgment as final for appeal purposes. In Fakier v.
State of La., Bd. Of Sup’rs for Univ. Of La. Sys., 08-111(La.App. 3 Cir. 5/28/08), 983
So.2d 1024, 1027, this court set forth the standard of review applicable in this
instance as follows:
2 The proper standard of review for an order designating a judgment as final and immediately appealable, when the order is accompanied by explicit reasons for the certification, is whether the trial court abused its discretion. However, if the trial court fails to give explicit reasons for the certification, the appellate court should conduct a de novo determination of whether the certification was proper. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113.
In Messinger, the Louisiana Supreme Court listed the non-exclusive factors for
considering whether a partial judgment should be certified as appealable. The factors
include:
1) The relationship between the adjudicated and unadjudicated claims; 2) The possibility that the need for review might or might not be mooted by future developments in the trial court; 3) The possibility that the reviewing court might be obliged to consider the issue a second time; and 4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.
Id. at 1122, citing Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364
(3d Cir. 1975).
In response to this court’s order that appellants show cause why the appeal
should not be dismissed, American admits that the ruling at issue does not contain
express reasons for its designation as immediately appealable. American argues that
the appeal should be maintained because the litigation would be terminated if the trial
court’s ruling is reversed. In opposition, the plaintiff contends that a reversal would
not terminate the litigation because the plaintiff’s claim for bad faith handling will
proceed independent of the determination on uninsured/underinsured motorist
coverage. Additionally, there is a workers’ compensation intervention claim pending.
American argues that a reversal of the trial court’s ruling would “presumably” dismiss
the workers’ compensation intervention claim.
The plaintiff directs this court to the recent dismissal of an appeal seeking
review of a judgment granting a motion for partial summary judgment finding that
3 underinsured/uninsured motorist coverage was provided. In Spencer v. Uong, 08-
1548 (La.App. 3 Cir. 3/11/09), the trial court designated its ruling as appealable and
gave supplemental reasons for its ruling, stating “The court believes the legal issue
of coverage is clear: the circumstances here would result in UM coverage, assuming
that the plaintiff proves damages in the amount sufficient to reach the UM policy. If
the damages are certain, there is no reason to protract the litigation.” 08-1548, pp 1-
2. This court dismissed the appeal finding that if the plaintiff failed to prove damages
in an amount sufficient to invoke the UM coverage, the UM carrier would be
absolved of liability.
American distinguishes the instant suit from Spencer by stating that the
American policy is written “on a primary basis. Thus, if Jonathan Guillory receives
any award at trial, coverage under the AHAC policy will be presumably implicated
from ‘dollar one’ in the event that there is no coverage.” American’s Reply Brief at
2. American goes on to recognize in a footnote that they will be entitled to various
offsets. American does not explain how the triggering of their
uninsured/underinsured coverage would be any different from that of Spencer. If the
plaintiff does not prove damages over what the policy limits were of Clark, as the
insurer of the other driver in the accident, American will not pay anything. Thus, the
judgment of which American is seeking review may be mooted by future
developments in the trial court.
In applying the R.J. Messinger factors to the instant case, we find that a
reversal of the judgment sub judice, which granted a motion for partial summary
judgment, will not terminate the entire litigation. As discussed above, bad faith
handling and workers’ compensation intervention claims will remain, even if we were
to reverse the trial court. Additionally, the judgment finds that the American policy
4 provides uninsured/underinsured motorist coverage if the plaintiff is able to establish
damages in an amount sufficient to reach the uninsured/underinsured coverage
amount. The judgment may also be rendered moot by future developments in the trial
court. For example, if at trial the plaintiff fails to prove damages in an amount
sufficient to invoke the uninsured/underinsured motorist coverage, then American
may never be required to pay any portion of the damage claim.
We find that judicial resources would be unnecessarily expended by the
appellate review of the partial summary judgment at this time, considering the
possibility of a later appeal involving the adjudication of the remaining claims. Thus,
we find that this matter is not ripe for immediate appeal and that the judgment at issue
in this case was improperly certified as a final, immediately appealable judgment.
Rather, we find that review of this ruling can be made upon the rendition of the final
judgment adjudicating all remaining issues in this action. Therefore, we hereby
dismiss the instant appeals at appellant’s cost.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.