Lynch-Ballard v. Lammico Insurance Agency, Inc.

131 So. 3d 908, 13 La.App. 5 Cir. 475, 2013 WL 6073365, 2013 La. App. LEXIS 2356
CourtLouisiana Court of Appeal
DecidedNovember 19, 2013
DocketNo. 13-CA-475
StatusPublished
Cited by6 cases

This text of 131 So. 3d 908 (Lynch-Ballard v. Lammico Insurance Agency, 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
Lynch-Ballard v. Lammico Insurance Agency, Inc., 131 So. 3d 908, 13 La.App. 5 Cir. 475, 2013 WL 6073365, 2013 La. App. LEXIS 2356 (La. Ct. App. 2013).

Opinion

ROBERT M. MURPHY, Judge.

| gPlaintiff-appellant, Dr. Eileen Clare Lynch-Ballard, appeals the January 24, 2013 judgment of the trial court, which granted defendant-appellee’s, Louisiana Medical Mutual Insurance Company (“LAMMICO”), motion for summary judgment, exception of no right of action and exception of prescription. Because we find that the judgment at issue is not a final, appealable judgment, we dismiss this appeal for lack of appellate jurisdiction and remand for further proceedings.

LAW AND DISCUSSION

In the present suit, Dr. Lynch-Ballard filed a petition against her defense attorney, his law firm1 and LAMMICO on December 15, 2011, alleging claims of breach of contract, fraud, tort and legal malpractice, for settling a medical malpractice claim on her behalf without her consent. Specifically, the petition alleges that LAM-MICO agreed to exclude Dr. Lynch-Ballard’s name from the settlement documents, but that it failed to do so, thereby breaching their agreement. |3Further, Dr. Lynch-Ballard contends that LAMMICO breached the insurance contract by failing to obtain her consent to settle the medical malpractice claims on her behalf, and for failing to secure, or to advise her to obtain, separate counsel before settling the claims on her behalf without her consent. Dr. Lynch-Ballard also alleges that as a result of LAMMICO’s report to the National Practitioner’s Data Bank (“NPDB”) of the settlement, she has suffered mental anguish, loss of earning capacity and loss of reputation.

On September 26, 2012, LAMMICO filed a “Peremptory Exception of Prescription, Peremptory Exception of No Right of Action, and/or Motion for Summary Judgment.” In its motion and exceptions, LAMMICO asserts that “[t]he gist of [Dr. Lynch-Ballard’s] claims against LAMMI-CO is that 1) it settled the case without her consent, and 2) that by reporting the settlement to the National Practitioner’s Data Bank, this action has caused her mental pain and anguish, loss of earning capacity and damage to her reputation.” Accordingly, LAMMICO moved for summary judgment on Dr. Lynch-Ballard’s breach of the insurance contract claims, alleging that the LAMMICO insurance policy expressly provides that LAMMICO is not obligated to obtain her consent to settle the claim because she was no longer an insured paying premiums on the policy at the time of the settlement. In addition, LAMMICO’s exception of no right of action urged that Dr. Lynch-Ballard had no right of action against it for mental anguish, loss of business opportunity or loss of reputation as a result of LAMMICO’s [910]*910report of the settlement to the NPDB. Specifically, LAMMICO alleged that Section 42 U.S.C. 11137(c) of the Healthcare Quality and Improvement Act grants LAMMICO immunity from any civil action for reporting settlements in accordance with the Act. Finally, LAMMICO’s exception of prescription alleged that Dr. Lynch-jBallard’s4 tort claims have prescribed because she filed suit more than one year after she became aware of the alleged tortious conduct.

Following a hearing on the merits on January 24, 2013, the trial court granted LAMMICO’s motion for summary judgment and its exceptions of no right of action and prescription, and issued a judgment on that same day. It is from this judgment that Dr. Lynch-Ballard appeals. On appeal, Dr. Lynch-Ballard raises several assignments of error, three of which address some of her contract claims against LAMMICO. In response, LAM-MICO contends that the trial court’s grant of summary judgment in the judgment at issue resolved all contract issues. After a review of the record and applicable law, however, we find that the judgment at issue does not dispose of all of the claims that Dr. Lynch-Ballard asserted against LAMMICO in her petition, and therefore, is not final and immediately appealable.

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Brown v. Loraso, 11-196 (La.App. 5 Cir. 10/27/11), 77 So.3d 455, 456. This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Powell v. Gramercy Ins. Co., 12-564 (La.App. 5 Cir. 3/13/13), 113 So.3d 343, 345; La. C.C.P. art.2083.

A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).

La. C.C.P. art. 1915(A)(3) (emphasis added).

A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case; however, a summary judgment shall be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.

|fiLa. C.C.P. art. 966(E)(1) (emphasis added).

Therefore, a judgment granted pursuant to La. C.C.P. art. 966(E) is not a final judgment. Powell, 113 So.3d at 345, citing La. C.C.P.1915(A)(3).

The judgment on appeal in this case does not dispose of all of the claims asserted against LAMMICO in Dr. Lynch-Ballard’s petition. For instance, noticeably absent from LAMMICO’s motion for summary judgment, as well as from its exceptions, is any argument as to the dismissal of Dr. Lynch-Ballard’s claim that LAMMICO breached the agreement to exclude her name from the settlement documents, or her claim that LAMMICO failed to secure, or to advise her to obtain, separate counsel before settling the claims on her behalf without her consent. Our review of the record shows that these claims were clearly asserted against LAM-MICO in Dr. Lynch-Ballard’s petition. Because these claims, and perhaps others, were not set forth in LAMMICO’s motion [911]*911for summary judgment, or in its exceptions, the judgment at issue does not adjudicate all of the claims and issues asserted in Dr. Lynch-Ballard’s petition. See La. C.C.P. art. 1915(A)(3). Therefore, we find that the judgment at issue is not a final appealable judgment. Rather, the trial court rendered a partial judgment as to less than all of the claims asserted against LAMMICO in Dr. Lynch-Ballard’s petition.

Whether a partial judgment is ap-pealable is determined by examining the requirements of La. C.C.P. art. 1915(B), which provides in pertinent part:

B. (1) When a court renders a partial judgment or a partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination by the court that there is no just reason for delay.

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Bluebook (online)
131 So. 3d 908, 13 La.App. 5 Cir. 475, 2013 WL 6073365, 2013 La. App. LEXIS 2356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-ballard-v-lammico-insurance-agency-inc-lactapp-2013.