Kellis v. Farber

523 So. 2d 843, 1988 WL 31769
CourtSupreme Court of Louisiana
DecidedApril 18, 1988
Docket87-CC-2170
StatusPublished
Cited by52 cases

This text of 523 So. 2d 843 (Kellis v. Farber) 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
Kellis v. Farber, 523 So. 2d 843, 1988 WL 31769 (La. 1988).

Opinion

523 So.2d 843 (1988)

Mary KELLIS
v.
Stuart FARBER, Farlee Drug Company, Inc., Zurich-American Insurance Company and St. Paul Fire & Marine Insurance Company.

No. 87-CC-2170.

Supreme Court of Louisiana.

April 11, 1988.
Opinion and Assigns Additional Reasons April 18, 1988.
Rehearing Denied June 1, 1988.

*844 Christopher Grace, Jr., New Orleans, for applicant.

Gerald Nielsen, Thomas Gaudry, Windhorst, Pastorek & Gaudry, Harvey, for respondents.

Opinion of Justice Lemmon Joining in Opinion and Assigns Additional Reasons April 18, 1988.

*845 DENNIS, Justice.

Venue is the question in this case arising out of an automobile accident. The accident happened in Jefferson Parish. The plaintiff, Mary Kellis, a New Orleans domiciliary, filed suit in Orleans Parish. She named as defendants:

Stuart Farber, the alleged tortfeasor, a Jefferson Parish domiciliary;
Farlee Drug Company, Farber's employer, a domestic corporation domiciled in Jefferson Parish;
Zurich-American Insurance Company, liability carrier of Farber and Farlee, a foreign insurer;
St. Paul Fire & Marine Insurance Company, plaintiff's uninsured motorist carrier, a foreign insurer.

The suit was met with a declinatory exception of improper venue. The trial court sustained the exception and transferred the case to Jefferson Parish. The court of appeal denied plaintiff's application for a writ. Kellis v. Farber, No. 87-C-8043 (La. App. 4th Cir. Sept. 9, 1987). This court granted a supervisory writ. After considering the written and oral arguments of the parties, we reverse the judgments of the lower courts and overrule the declinatory exception of venue.

The Code of Civil Procedure provides a general rule of venue followed by various permissive and mandatory supplementary provisions. The general rules of venue are contained in article 42, the permissive supplementary rules in articles 71 through 77, and the mandatory supplementary rules in articles 78 through 85. Several other mandatory venue rules are provided for in other parts of the Code.

Under the general rules of venue an action against an individual domiciled in the state shall be brought in the parish of his domicile, an action against a domestic corporation shall be brought in the parish where its registered office is located, and an action against a foreign insurer shall be brought in the parish of East Baton Rouge. La.C.C.P. article 42. Consequently, Orleans Parish is not the proper venue for plaintiff's suit against the defendants under the general rule. Foreign insurers can only be sued in East Baton Rouge Parish under the general rule and the other two defendants have neither a domicile nor a registered office in Orleans Parish.

However, article 43 provides that the general rules of venue provided in article 42 "are subject to" the exceptions provided in article 76. After special exceptions for actions on life and health and accident policies, article 76 provides that an action on any other type of insurance policy may be brought in the parish where the loss occurred or the insured is domiciled. La.C.C.P. art. 76. Accordingly, Orleans Parish is the proper venue for the plaintiff's suit against her uninsured motorist carrier because it is an action on an insurance policy brought by an insured in the parish of her domicile.

Moreover, article 43 provides that the general rules of venue provided in article 42 "are subject to" a further exception provided for in article 73. Article 73 provides that an action against joint or solidary obligors may be brought in any "parish of proper venue, under article 42, as to any obligor who is made a defendant." La.C.C.P. art. 73.

Accordingly, Orleans Parish is also the proper venue for plaintiff's suit against the remaining defendants. Plaintiff's suit is an action against solidary obligors because the tortfeasor, his employer, their liability insurer and the plaintiff's uninsured motorist carrier are solidary obligors with respect to the victim. Burton v. Foret, 498 So.2d 706 (La.1986); Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La.1982). Therefore, the action was brought in a parish of proper venue, as to one of the solidary obligors, namely, the uninsured motorist carrier. Further, this action was also brought within a proper venue under article 42, although the plaintiff was specifically authorized to sue upon her UM policy in the parish of her domicile by article 76. This is because article 42 by law is "subject to" the provisions of article 76. La.C.C.P. art. 43. See Erdey v. Am. Honda Co., 415 So.2d 449 (La.App. 1st Cir.1982). Article 5051 requires the courts *846 to construe the articles of the Code liberally to implement the substantive law. When the articles are viewed in this light and as part of the total procedural system, it is clear that article 76 and the other articles set out in article 43 are an extension, supplement and legal part of the provisions of article 42. See Surridge v. Benanti, 261 La. 282, 259 So.2d 324 (1972); McKenzie & Johnson, Louisiana Insurance Law and Practice, § 25, p. 44 (1986); Tate, Civil Procedure: Work of Appellate Courts 1967-1968, 29 La.L.Rev. 269, 274-276 (1969).

We are reassured as to the validity of this conclusion by further application of the rules of construction provided by the Code of Civil Procedure. La.C.C.P. art. 5051 et seq. When we read the clear and unambiguous language of article 43, which provides that the provisions of article 42 are subject to those of article 76, it is evident that article 76 is to be considered part of article 42 when applying the code to concrete cases. La.C.C.P. art. 5052. Consequently the letter of article 43 is not to be disregarded under the pretext of pursuing the spirit or unarticulated principle of the law. Id. Further, the same meaning is derived when article 43's words and phrases are read in their context, and are construed according to common and approved usage. La.C.C.P. art. 5053. Finally, this conclusion is confirmed by the equally applicable requirement that laws on the same subject matter must be interpreted in reference to each other. Civil Code art. 13 (1988).

The defendants argue that venue in Orleans Parish is improper as to the foreign liability insurers because the direct action statute provides that an "action may be brought 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 art. 42, Code of Civil Procedure." La.R.S. 22:655. Defendants further rely on the plurality opinion subscribed to by three members of this court in Meyers v. Smith, 419 So.2d 449 (La.1982) to the effect that the direct action statute by its references to article 42 does not incorporate the other articles made part of it by article 43 because "[n]o mention is made of the exceptions to those rules provided by article 43, although the legislature could have easily incorporated those exceptions had it desired to do so." Meyers v. Smith, 419 So.2d at 451.

First, we disagree with the defendants and the plurality interpretation in Meyers for the reasons previously stated; in sum because article 42 is "subject to" article 76 and other supplementary provisions, these laws must be considered together under proper codal methodology.

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Bluebook (online)
523 So. 2d 843, 1988 WL 31769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kellis-v-farber-la-1988.