Lela Mae Flowers v. Jena Band of Choctaw Indians

• Court: Louisiana Court of Appeal
• Decided: June 12, 2024
• Docket: CA-0023-0728
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 23-728

LELA MAE FLOWERS

VERSUS

JENA BAND OF CHOCTAW INDIANS, ET AL

**********

APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 27006 HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

ELIZABETH A. PICKETT CHIEF JUDGE

Court composed of Elizabeth A. Pickett, Gary J. Ortego, and Ledricka J. Thierry, Judges.

AFFIRMED.

Anthony J. Bruscato Attorney at Law 2011 Hudson Lane Monroe, LA 71201 (318) 325-7577 COUNSEL FOR PLAINTIFF-APPELLANT: Lela Mae Flowers Bonita Preuett-Armour Sheridan C. Hogue Armour Law Firm, L.L.C. Post Office Box 8386 Alexandria, LA 71306 (318) 442-6611 COUNSEL FOR DEFENDANTS-APPELLEES: The Jena Choctaw Indian Gaming Authority The Jena Choctaw Indian Authority The ABC Corporation d/b/a Jena Choctaw Pines Casino Alliant Specialty Insurance Services, Inc. Hudson Excess Insurance Company PICKETT, Chief Judge.

Plaintiff appeals two judgments. The first judgment granted an insurer’s

exception of no right of action and dismissed the plaintiff’s claims against it with

prejudice. The second judgment denied the plaintiff’s motion to file a second

supplemental and amending petition to add another defendant. We affirm.

FACTS

On February 25, 2021, Lela Mae Flowers filed suit against the Jena Band of

Choctaw Indians (the Band); Jena Choctaw Indian Gaming Authority, Jena

Choctaw Indian Authority; ABC Corporation, “believed to be one or more of the

three previously named defendants, doing business as ‘Jena Choctaw Pines

Casino’” (collectively the Casino); and Alliant Specialty Insurance Services, Inc.

(Alliant), to recover damages for injuries she allegedly sustained while a patron of

the Casino. The Band and the Casino answered Ms. Flowers’ petition and filed an

exception of lack of subject matter jurisdiction on the basis of sovereign immunity

and sought to be dismissed from the litigation.

After conducting a hearing where the parties presented testimonial and

documentary evidence, the trial court granted the Band’s exception of lack of

subject matter jurisdiction and motion to dismiss by a judgment signed January 24,

2022. The trial court reserved deciding whether the Casino was entitled to

sovereign immunity and whether subject matter jurisdiction existed as to Ms.

Flowers’ claims against it, finding the evidence introduced on the issue was

insufficient to establish the Casino was entitled to sovereign immunity. The Casino

filed a motion for new trial on February 2, 2022, which was denied.

On June 1, 2022, Ms. Flowers filed an amending and supplemental petition

to add Hudson Excess Insurance Company (Hudson), the insurer of the Band and the Casino, as a defendant. The defendants answered the petition, reasserting their

exception to subject matter jurisdiction and filed an exception of res judicata based

on the trial court’s judgment granting its exception of lack of subject matter

jurisdiction as to the Band.

On May 26, 2023, the Casino filed a motion for summary judgment

asserting that the Gaming Authority, which operates the Casino, is an

unincorporated entity of the Band and, therefore, entitled to sovereign immunity.

Documentation attached to the motion included an affidavit of the Band’s former

Tribal Chief outlining the history of the Band and its sovereign immunity, the

creation of the unincorporated Gaming Authority, and the Gaming Authority’s

immunity from suit by virtue of the Band’s sovereign immunity. The Casino also

filed a restated and supplemental peremptory exception of lack of subject matter

jurisdiction. Hudson and Alliant filed a joint peremptory exception of no right of

action. Hudson asserted in its exception of no right of action that because the Band

and the Casino have sovereign immunity, Ms. Flowers has no right of action to

proceed against it alone.

On July 5, 2023, Ms. Flowers filed oppositions to the defendants’ motions,

urging that she can proceed against Hudson under the Direct Action Statute,

La.R.S. 22:1269. She also filed a motion seeking permission to file a second

supplemental and amending petition to name the Casino’s security supervisor as a

defendant. The defendants objected to Ms. Flowers’ motion.

The trial court conducted a hearing to address the parties’ exceptions and

motions on July 18, 2023. At that time, Ms. Flowers “conceded” that the Band and

Casino were “entitled to sovereign immunity.” Alliant produced evidence

establishing that it is a producer, not an insurer, and not liable for Ms. Flowers’

2 claims. On August 3, 2023, the trial court signed a judgment, dismissing with

prejudice Ms. Flowers’ claims against the Band, the Casino, and Alliant.

The trial court concluded that Ms. Flowers does not have a direct action

against Hudson under La.R.S. 22:1269 and denied her motion to amend her

petition to add an additional defendant. The trial court signed judgments granting

Hudson’s exception of no right of action, dismissing Ms. Flowers’ claims against it

with prejudice, and denying Ms. Flowers’ motion to file a second supplemental

and amending petition.

Ms. Flowers appealed these two judgments and assigns the following errors

with the trial court’s rulings:

1) The trial court erred in granting the exception of no right of action of defendant Hudson Excess Insurance Company (“Hudson”); alternatively, the trial court erred in dismissing with prejudice as any dismissal should have been without prejudice.

2) The trial court erred in denying plaintiff’s motion to file her Second [Supplemental and Amending] Petition; alternatively, even if the trial court did not err in denying the motion to amend, the trial court erred in including language in the judgment which indicates that the claims sought to be asserted in in the Second [Supplemental and Amending] Petition are dismissed with prejudice as any dismissal should be without prejudice.

DISCUSSION

Direct Action

Ms. Flowers first argues that the trial court erred in granting Hudson’s

exception of no right of action. Louisiana’s Direct Action Statute, La.R.S. 22:1269,

provides a “procedural right of action” against an insurer when a plaintiff has a

cause of action against an insured and the insurer’s policy covers a particular risk,

but it “does not create an independent cause of action against the insurer.” Descant

v. Adm’rs of Tulane Educ. Fund, 93-3098, p. 3 (La. 7/5/94), 639 So.2d 246, 249.

3 See also, Soileau v. Smith True Value & Rental, 12-1711 (La. 6/28/13), 144 So.3d

771.

The Direct Action Statute, La.R.S. 22:1269(B)(1), states, in pertinent part:

The injured person . . . at [her] option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido . . . however, such action may be brought against the insurer alone only when at least one of the following applies:

a) The insured has been adjudged bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.

b) The insured is insolvent.

c) Service of citation or other process cannot be made on the insured.

d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.

e) When the insurer is an uninsured motorist carrier.

f) The insured is deceased.

Hudson argues that Ms. Flowers cannot proceed directly against it alone

because she has not shown that one of the six requirements set forth in La.R.S.

22:1269(B)(1) applies to the Band and/or the Casino. Hudson further argues that as

the insurer of an entity that has sovereign immunity, Ms. Flowers cannot sue it

directly, citing Laborde v. Pecot, 05-285 (La.App. 3 Cir. 11/2/06), 942 So.2d 699,

writ denied, 06-2837 (La. 2/2/07), 948 So.2d 1082, and writ denied, 06-2865 (La.

2/2/07), 948 So.2d 1085, and writ denied, 06-2879 (La. 2/2/07), 948 So.2d 1085,

and writ denied, 06-2880 (La. 2/2/07), 948 So.2d 1086. In Laborde, Id. at 703, this

court held “Louisiana Revised Statute 22:655 [now 22:1269] does not provide for

direct action in state court against the insurer of a party claiming sovereign

immunity” without explaining its reasoning. 4 Ms. Flowers conceded that the Band and the Casino have sovereign

immunity. Nonetheless, she now argues that because her claims against the Band

and the Casino had not been dismissed when the hearing on Hudson’s exception of

no right of action was held, the Band and the Casino were still parties to the

litigation. She concludes, therefore, that she sued the insured and the insurer as

required by the Direct Action Statute.

Ms. Flowers cites Soileau, 144 So.3d 771, in support of her argument. In

Soileau, the plaintiff filed suit against the insured and his insurer, then dismissed

the insured after reaching a settlement with him. The insurer sought to be

dismissed because none of the La.R.S. 22:1269(B)(1) requirements applied. This

court held that the plaintiff satisfied the Direct Action Statute’s requirement that

the insured and the insurer must be sued because he dismissed the insured after he

settled with the insured. Ms. Flowers contends that the supreme court’s

conclusions in Soileau, 144 So.3d 771, overruled this court’s holding in Laborde,

942 So.2d 699. Notably, the supreme court did not mention Laborde in Soileau,

when discussing the facts at issue therein, and our review of the opinion does not

indicate the supreme court intended its decision to affect the holding in Laborde.

An insurance policy is a contract between the insured and the insurer that

controls their obligations. La.Civ.Code arts. 1906, 1983. See also Peterson v.

Schimek, 98–1712 (La. 3/2/99), 729 So.2d 1024. “When the words of an insurance

contract are clear and explicit and lead to no absurd consequences, courts must

enforce the contract as written.” Id. at 1028 (citing La.Civ.Code art. 2046).

The general liability provision of the insurance policy Hudson issued to the

Band and Casino states, in pertinent part: “‘Hudson’ agrees . . . to indemnify the

‘Assured’ against ‘loss’ and ‘expense’ because of ‘bodily injury’, ‘personal injury’,

5 and/or ‘property damage’ caused by an ‘occurrence.’” The policy defines “Loss,”

to “mean the total sum . . . which the ‘Named Assured’ becomes legally obligated

to pay.”

Hudson is only obligated to pay what the Band and/or the Casino is

obligated to pay. The Band and the Casino have sovereign immunity and cannot be

held legally obligated to pay Ms. Flowers for her injuries by a Louisiana state

court. Accordingly, Hudson cannot be liable to Ms. Flowers for her claims against

the Band and the Casino. See also, Koscielak v. Stockbridge-Munsee Cmty., 2012

30 WI App 30, ¶21, 340 Wis.2d 409, 811 N.W.2d 451 (third party does not have a

direct action, Wis.Stat. § 632.24, against Indian tribe’s insurer because the Tribe is

protected by tribal immunity and cannot be held liable to pay anything).

Ms. Flowers also argues that federal law does not bar insurers of Indian

tribes from being held liable for a tribe’s vicarious liability for its employees’

negligence. Her argument indicates that she is confused regarding the difference

between insurance policies issued to Indian tribes for their negligence and

insurance policies issued to Indian tribes in conjunction with federal contracts

governed by the Indian Self-Determination and Education Assistance Act, 25

U.S.C. §§ 450–458hh (ISDEAA). Insurers of Indian tribes that enter into federal

contracts governed by the ISDEAA must waive any right they have to raise the

tribe’s sovereign immunity as a defense with regard to such a contract. Demontiney

v. U.S. ex rel. Dep’t of Interior, Bureau of Indian Affs., 255 F.3d 801 (9th Cir.

2001). This waiver applies only to ISDEAA contracts. Id. No federal ISDEAA

contract is at issue herein. This argument lacks merit.

For these reasons, the trial court did not err in dismissing Ms. Flowers’

claims against the Band and the Casino.

6 Motion to Amend

Ms. Flowers next argues that the trial court erred in denying her motion to

file a second supplemental and amending petition to add an employee of the

Casino as defendant. The defendants opposed her motion to amend arguing that

her claims against them had been dismissed with prejudice. Thus, the litigation had

been terminated, and there is no reason to allow Ms. Flowers to add an additional

defendant.

In her original petition, Ms. Flowers asserted that she was injured after

patrons in the bar adjacent to where she was seated at a gaming machine in the

Casino began fighting for a second time because the security staff failed to take

reasonable precautions after the first fight to prevent another altercation. She

argues that the trial court should have allowed her to amend her petition to add

Jeremy Ardoin, the Casino’s security supervisor, as a defendant, urging that he had

personal responsibility for her injuries.

We must determine whether the trial court abused its discretion in denying

Ms. Flowers’ motion to amend her petition to pursue a claim against Mr. Ardoin

for his alleged personal negligence. As a general rule, courts allow the amendment

of pleadings after a defendant has filed an answer unless the evidence shows that

the amendment is not sought in good faith, is being used to delay the proceeding,

or may prejudice another party. Bucks v. DirecTECH Sw., 52,474 (La.App. 2 Cir.

2/27/19), 266 So.3d 467, writ denied, 19-701 (La. 9/6/19), 278 So.3d 970. A trial

court’s decision to allow or deny an amendment is within its sound discretion, and

that decision should not be overruled on appeal unless the evidence shows an abuse

of discretion occurred and that an injustice could result from the ruling. Id.

7 Suit was filed in this matter on February 25, 2021. In April 2021, the

defendants filed exceptions of lack of subject matter jurisdiction. On November 30,

2021, the Band proved that it enjoys sovereign immunity and that the trial court

lacked subject matter jurisdiction. On May 25, 2023, the trial court issued a

Scheduling Order, setting trial for October 18, 2023. The next day, the Casino filed

its motion for summary judgment to establish it has sovereign immunity.

During the July 18, 2023 hearing on Ms. Flowers’ motion to amend her

petition, the trial court expressed its frustration with her seeking to add a new

defendant and pointed out that the late addition of a new defendant would delay the

matter beyond the scheduled trial date. The trial court explained:

[T]here were representations to the Court [several months ago] that we were ready for trial at least from the plaintiff’s side . . . and I think it is prejudicial to bring a defendant in, even if he is an employee of one of the originally named defendants who you’ve had knowledge of his . . . alleged involvement in this action to bring him in with three (3) months’ notice.”

The trial court also noted that Ms. Flowers had not included all potential

defendants because the parties actually involved in the disturbance were not parties

and that all potential tortfeasors should be included for purposes of a comparative-

fault assessment as required by La.Civ.Code art. 2323.

Furthermore, Ms. Flowers’ counsel’s arguments indicate he believed that by

naming Mr. Ardoin as a defendant, Hudson would remain in the litigation as the

insurer of the Casino’s vicarious liability for Mr. Ardoin’s alleged negligence. That

is not the case here because “Tribal immunity also protects tribal employees who

are acting in their official capacity and within the course and scope of their

authority.” Zaunbrecher v. Succession of David, 15-769 (La.App. 3 Cir. 12/9/15),

181 So.3d 885, 887 writ denied sub nom. Zaunbrecher v. David, 16-49 (La.

2/26/16), 187 So.3d 1002 (citing Cook v. Avi Casino Enters., Inc., 548 F.3d 718 8 (9th Cir. 2008), cert. denied, 556 U.S. 1221, 129 S.Ct. 2159 (2009)). Accordingly,

Mr. Ardoin could only be held liable for his personal negligence in state court, and

Hudson would not be liable for his personal negligence.

Allowing Ms. Flowers to add a new defendant almost four years after her

March 2020 injury would essentially restart this litigation again from square one.

As the only defendant, Mr. Ardoin would likely seek to name additional parties

and discovery could be cumbersome so long after the incident. This situation could

have been avoided if counsel had heeded the warnings the trial court made in May

and November 2021 that it did not believe subject matter jurisdiction existed for

Ms. Flowers’ claims. Counsel for plaintiff did not move to add another defendant

until July 2023 when he likely realized that no defendant would remain in the

litigation after the July 18 hearings unless he named another defendant.

For these reasons, we find the trial court did not abuse its discretion in

denying Ms. Flowers’ motion to file a second supplemental and amending petition

and reverse the judgment denying her that opportunity.

DISPOSITION

For the reasons discussed, the trial court’s judgments dismissing Lela Mae

Flowers’ claims against Hudson Excess Insurance Company with prejudice and

denying her motion to file a second supplemental and amending petition are

affirmed. Lela Mae Flowers is assessed with all costs not previously assessed by

the trial court.