McLean v. Majestic Mortuary Services Inc.

96 So. 3d 571, 11 La.App. 5 Cir. 1166, 2012 WL 1867614, 2012 La. App. LEXIS 702
CourtLouisiana Court of Appeal
DecidedMay 22, 2012
DocketNo. 11-CA-1166
StatusPublished
Cited by7 cases

This text of 96 So. 3d 571 (McLean v. Majestic Mortuary Services 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
McLean v. Majestic Mortuary Services Inc., 96 So. 3d 571, 11 La.App. 5 Cir. 1166, 2012 WL 1867614, 2012 La. App. LEXIS 702 (La. Ct. App. 2012).

Opinion

SUSAN M. CHEHARDY, Judge.

|gThis is a lawsuit against a funeral services company and a life insurance company for breach of contract, negligence, and fraud. The plaintiff appeals the trial court’s judgment that grants an exception of improper venue as to the funeral services company and grants an exception of res judicata as to the insurance company. We affirm in part, reverse in part, amend and remand.

PROCEEDINGS BELOW

On April 6, 2011, Michelle McLean filed suit against Majestic Mortuary Services, Inc. (“Majestic”) and Metropolitan Life Insurance Company (“MetLife”) in the 24th Judicial District Court, Jefferson Parish, Louisiana, as well as the unnamed insurer of Majestic. McLean alleged as follows:

On May 14, 2010, McLean’s husband, Daniel J. McLean III, died unexpectedly in Jefferson Parish, Louisiana, where he was domiciled. Michelle McLean is the sole beneficiary of Metropolitan Life Insurance Policy No. 0109672, which insured the life of the decedent. In May 2010, she initiated a claim with MetLife, and was directed to submit the claim and all related information to the decedent’s former employer, Orleans Parish School Board (“OPSB”). She did so.

|sOn or about May 18, 2010, McLean and Majestic signed a Statement of Funeral Goods and Services. Also on that day, McLean signed an Insurance Policy Assignment form, which was incomplete in that the spaces for the name of the insurer, the policy number, and the amount assigned were left blank.

The decedent’s funeral was held on May 22, 2010. On May 24, 2010, McLean advised Majestic in writing that she was dissatisfied with the services provided. McLean complained specifically of the following: Majestic provided a party van with a strobe light to transport McLean and the decedent’s two children to the funeral, as well as a limousine that had no air conditioning to transport McLean and the children from the church to the burial site. Majestic’s funeral director was unprepared and demonstrated an overall lack of knowledge and experience directing a Catholic funeral mass and burial. The funeral director wholly failed to provide guidance or instruction to the pallbearers. Furthermore, the director failed to make an announcement at the end of the visitation period prior to closing the casket, thereby depriving persons of the opportunity for a final viewing. The director further failed to properly handle the purity cloth, and the limousine drivers were unfamiliar with the burial site and its location.

[574]*574McLean admitted that on May 26, 2010, Majestic acknowledged and apologized for the lack of certain services and unilaterally adjusted the amount due on the funeral services contract. McLean, however, maintained that the adjustment was insufficient. The parties were unable to agree upon the amount due. Therefore, McLean contacted OPSB to report her dissatisfaction with Majestic’s services. She was informed that she had the option of requesting full payment of the life insurance proceeds to her and she could then pay Majestic herself, directly. McLean exercised that option and requested full payment from MetLife.

1 Recording to the petition, after Majestic obtained the decedent’s death certificate from the office of the decedent’s physician in Jefferson Parish, Majestic submitted one copy thereof with a request for direct payment to MetLife through OPSB. Majestic submitted the request for payment with knowledge that there was a dispute concerning the amount due.

Upon discovering this fact, McLean contacted MetLife by telephone and in writing to reiterate her request to rescind any prior authorization for payment to Majestic and, further, to demand full payment of the life insurance proceeds. MetLife tendered the uncontested portion of the proceeds, $12,690.60, to McLean in early September 2010, several months after the decedent’s death.

On September 24, 2010, MetLife sent a letter to McLean advising that it could not determine whether she had effectively revoked her authorization for payment to Majestic, and further advising of its intent to file an interpleader action if an amicable compromise was not reached between the parties within 30 days. McLean responded, through her counsel, that she effectively revoked any and all authorization for payment to Majestic, that MetLife’s failure to properly tender payment was unreasonable, and that if further action became necessary to obtain all funds, McLean would pursue remedies and penalties against MetLife.

MetLife took no further action until after McLean filed her Petition for Damages in the 24th Judicial District Court on April 6, 2011. In response to the petition, Met-Life filed a peremptory exception of res judicata, asserting that on April 7, 2011, MetLife had filed a concursus proceeding against McLean and Majestic in Civil District Court for the Parish of Orleans and had deposited the contested portion of the life insurance proceeds ($7,309.40) into the court registry, in order for McLean and Majestic to assert their claims to the money contradictorily before that court. Met-Life alleged that it had been dismissed from | sthe concursus proceeding with prejudice, and that all causes of action against it were extinguished and merged in the judgment in the concursus proceeding because the suits arise out of the same transaction or occurrence.

McLean then filed an exception of lis pendens and a motion to vacate and annul judgment in the Orleans Parish concursus proceeding. She recited the facts alleged in the pending action against MetLife in McLean’s Jefferson Parish lawsuit, and alleged that the Jefferson Parish suit was filed the day before the Orleans Parish suit. She also stated that the judgment in the concursus had been submitted and signed before she received any notice or service of the shit and the judgment therein. McLean’s exception and motion to vacate were denied by the Orleans Parish judge.

When arguing the exception of res judi-cata in this proceeding, MetLife pointed out that in McLean’s exception of lis pen-dens in the concursus proceeding, McLean [575]*575had specifically claimed that the parties were the same in the two actions and that they arose out of the same transaction. Thus, MetLife argued, McLean is bound by her judicial confession to two elements of res judicata.

Thereafter Majestic filed a declinatory exception of improper venue and a peremptory exception of no cause of action. Majestic asserted the suit against it was improperly filed in Jefferson Parish because the proper venue for an action against Majestic is Orleans Parish, where Majestic is located and domiciled, and where the alleged incident occurred. Majestic asserted further that McLean had failed to state a cause of action against Majestic either for breach of contract or for negligence because the petition states theories of law rather than facts.

After a hearing, the district court maintained MetLife’s exception of res judicata and Majestic’s exception of improper venue, but ruled that Majestic’s exception of no cause of action was moot.

| nMcLean appeals. She contends the district court erred in maintaining Met-Life’s exception of res judicata, in maintaining Majestic’s exception of improper venue, and in ruling that Majestic’s exception of no cause of action is moot.

LAW AND ANALYSIS

Appellate courts review exceptions of res judicata, improper venue, and no cause of action using the de novo standard of review, because these exceptions present legal questions.1

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96 So. 3d 571, 11 La.App. 5 Cir. 1166, 2012 WL 1867614, 2012 La. App. LEXIS 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclean-v-majestic-mortuary-services-inc-lactapp-2012.