Mapp Construction, LLC v. Amerisure Mutal Insurance Co.

143 So. 3d 520, 2013 La.App. 1 Cir. 1074, 2014 WL 1178478, 2014 La. App. LEXIS 773
CourtLouisiana Court of Appeal
DecidedMarch 24, 2014
DocketNo. 2013 CW 1074
StatusPublished
Cited by25 cases

This text of 143 So. 3d 520 (Mapp Construction, LLC v. Amerisure Mutal Insurance Co.) 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
Mapp Construction, LLC v. Amerisure Mutal Insurance Co., 143 So. 3d 520, 2013 La.App. 1 Cir. 1074, 2014 WL 1178478, 2014 La. App. LEXIS 773 (La. Ct. App. 2014).

Opinions

HIGGINBOTHAM, J.

12This appeal involves an approximate $6.7 million dollar award for defense costs in a suit for declaratory judgment. For the following reasons, we convert the appeal to an application for a supervisory writ of review, grant the writ, vacate the September 25, 2012 judgment, and remand.

BACKGROUND

The long history of this litigation includes multiple lawsuits that arose out of the construction and funding of a multi-unit apartment complex on Nicholson Drive in Baton Rouge, Louisiana. The construction project, hereafter referred to as “the Southgate project,” is owned by Southgate Residential Towers, LLC and Southgate Penthouses, LLC (collectively referred to as “Southgate”). Pertinent to this appeal is a declaratory judgment action brought by the general contractor on the Southgate project, MAPP Construction, LLC (“MAPP”), and its liability insurer, Bituminous Casualty Corporation (“Bituminous”).

On November 5, 2009, MAPP and Bituminous filed a petition for declaratory judgment against twelve of the subcontractors’ liability insurers (“subcontractor insurers”), on the Southgate project, one of which is Crum & Forster Specialty Insurance Company (“C & F”). MAPP and Bituminous sought to recover attorney’s fees and legal expenses incurred by Bituminous in defending the litigation and arbitration originally brought by Southgate against Bituminous’s named insured, MAPP. Bituminous and MAPP requested a judicial declaration that all of the subcontractor insurers, including C & F, have:

[523]*523[A] contractual duty to pay the cost of defending MAPP as an additional insured under [the] insurance policies issued to the [subcontractors, and requiring [the subcontractor insurers] to pay and reimburse Bituminous for the cost [of] defending MAPP in the litigation involving the construction of the [South-gate project], including both the arbitration proceedings and the civil suits and, further, for any other general or equitable relief that the court may find proper and just.

|RShortly after MAPP and Bituminous filed their petition for declaratory judgment, Southgate filed a motion to intervene with an accompanying petition for declaratory judgment as intervenor on November 19, 2009, alleging that Southgate had a justiciable interest in the declaratory judgment action filed by MAPP and Bituminous, because Southgate had previously asserted its right to payment of legal fees against all of the subcontractor insurers, MAPP, and Bituminous in another lawsuit known as the “insurance litigation.”1 In its petition for declaratory judgment as intervenor, Southgate alleged that MAPP, Bituminous, and Southgate were all additional insureds under the same provisions in the subcontractor insurers’ policies and subcontractor agreements, and they all sought reimbursement for legal fees incurred in the insurance litigation and arbitration proceedings. As intervenor, South-gate requested a judicial declaration that:

[The subcontractor insurers] have a contractual duty to pay and reimburse the costs of attorney’s fees of Southgate as an additional insured under the [subcontractor insurers’] insurance policies and requiring [them] to pay and reimburse the costs of attorney’s fees of Southgate in the litigation related to [the] South-gate project including both the arbitration proceedings and the civil suits and granting all damages, attorney[’s] fees, costs, penalties. and all other relief allowed by law.

In April 2010, MAPP and Bituminous settled with Southgate pursuant to a confidential compromise and settlement agreement. As part of the settlement, |4MAPP and Bituminous assigned their rights and claims to Southgate, including their rights and claims against all subcontractors and subcontractor insurers for attorney’s fees and costs that Bituminous advanced or paid on behalf of MAPP in defense of Southgate’s claims. The trial court signed [524]*524an ex parte order of substitution on June 17, 2010, recognizing and substituting Southgate as plaintiff in the declaratory judgment action originally filed by MAPP and Bituminous. C & F answered South-gate’s petition for declaratory judgment (as assignee), denying that it owes a duty to defend Southgate, contesting the amount of legal fees incurred as unreasonable and unnecessary, and requesting a trial by jury on all issues.

After its substitution as plaintiff in the declaratory judgment action, Southgate, as assignee of MAPP and Bituminous, moved for partial summary judgment against C & F, seeking a declaration that: (1) MAPP is an additional insured under the C & F policy issued to the primary electrical subcontractor, Power Design, Inc. (“PDF); (2) C & F has a duty to defend MAPP in the insurance litigation; (3) C & F’s duty to defend MAPP is primary to Bituminous’s duty to defend MAPP, and therefore, C & F is obligated to reimburse Southgate for 100% of the legal fees and expenses that Bituminous paid on behalf of MAPP; and (4) C & F has no right to contest the reasonableness of the attorney’s fees incurred on behalf of MAPP since C & F breached its duty to defend. C & F opposed Southgate’s motion for partial summary judgment, primarily contesting the validity of MAPP’s assignment of rights to Southgate without C & F’s consent and pointing out that Southgate has already recovered the same attorney’s fees and expenses from C & F’s insured, and paid by C & F, in the arbitration proceeding.

On October 25, 2011, the trial court granted the partial summary judgment in favor of Southgate, as assignee of MAPP and Bituminous, without indicating anything regarding the specific issues raised in Southgate’s petition for declaratory judgment. In that partial summary judgment (hereafter referred to as the “first judgment”), the trial court expressly reserved the right to review the 1 .^reasonableness of the attorney’s fees that were sought. Southgate contends that by granting the first judgment, the trial court actually held that C & F owed a duty to defend and found C & F solidarity liable for the entire amount of the attorney’s fees, plus interest. C & F subsequently sought a supervisory writ of review, but this court declined to exercise our supervisory jurisdiction, noting that an adequate remedy exists by review on appeal following rendition of a final judgment.2 The Louisiana Supreme Court also denied C & F’s writ application on May 18, 2012.3

One week after all writs were denied as to the first judgment, Southgate, as as-signee of MAPP and Bituminous, filed a motion to have the trial court determine the amount of attorney’s fees owed by C & F. Southgate maintained that C & F was solidarity liable for the entire amount of costs associated with the defense of MAPP in all of the Southgate litigation, plus interest, including the arbitration proceeding, the insurance litigation, and various other consolidated lawsuits filed by the subcontractors against Southgate and MAPP for nonpayment of sums due on the Southgate project, as well as “any other lawsuit, cross-claim or third party demand ... arising out of or relating to the South-gate [pjroject.” Southgate requested that the trial court determine the reasonableness of $6,700,616.16 as the amount of attorney’s fees and other legal expenses [525]*525paid by Bituminous on behalf of MAPP, so that a final money judgment could be entered against C & F.

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Bluebook (online)
143 So. 3d 520, 2013 La.App. 1 Cir. 1074, 2014 WL 1178478, 2014 La. App. LEXIS 773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mapp-construction-llc-v-amerisure-mutal-insurance-co-lactapp-2014.