Reed v. Allstate Insurance Co.

722 So. 2d 1152, 97 La.App. 4 Cir. 2141, 1998 La. App. LEXIS 3636, 1998 WL 839708
CourtLouisiana Court of Appeal
DecidedDecember 2, 1998
DocketNo. 98-C-2072
StatusPublished
Cited by1 cases

This text of 722 So. 2d 1152 (Reed v. Allstate 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
Reed v. Allstate Insurance Co., 722 So. 2d 1152, 97 La.App. 4 Cir. 2141, 1998 La. App. LEXIS 3636, 1998 WL 839708 (La. Ct. App. 1998).

Opinion

JaPLOTKIN, Judge.

Defendant, Allstate Insurance Company, seeks review of an August 7, 1998 judgment overruling its dilatory exceptions of lack of procedural capacity and improper cumulation of actions and its declinatory exception of improper venue.

Facts

Plaintiffs and their minor children allegedly suffered personal injuries as a result of an automobile accident that occurred in Orleans Parish on August 7,1997, when the vehicle in which they were riding was rear-ended by a vehicle driven by defendant Robert Fair, an Orleans Parish resident. The accident occurred in Orleans Parish on August 7, 1997. The plaintiffs, Geraldine Reed, Bernice Reed, and Darlene Johnson, residents of Orleans Parish, filed suit on behalf of themselves and on behalf of the estates of their minor children in Orleans Parish Civil District Court. The plaintiffs’ petition specifically alleges that the fathers of all the minor children are absentees. In addition to Mr. Fair, his insurer, Allstate Insurance Company, a foreign insurance company licensed to do business in Orleans Parish, was named as a defendant. In addition to liability for their personal injuries, the ^plaintiffs alleged that Allstate was liable for penalties under LSA-R.S. 22:1220(B)(5) for its failure to make a reasonable settlement offer.

[1153]*1153Allstate filed dilatory exceptions of lack of procedural capacity and improper cumulation of actions and a declinatory exception of improper venue, which were denied by the trial court. Allstate seeks supervisory writs of review. We grant writs, but deny relief.

Dilatory exception of lack of procedural capacity

In its first argument, Allstate argues the trial court erred in denying its exception of lack of procedural capacity because the petition fails to establish that the mothers have capacity to sue on behalf of their minor children. Specifically, Allstate argues that the plaintiffs failed to allege that they have been appointed as tutrixes or administra-trices of the estates of the minors.

The only allegations concerning procedural capacity are those found in the following paragraphs of plaintiffs’ petition:

IX.
At all times pertinent hereto, Kanitra Reed and Andranika Reed are the minor daughters of Geraldine Reed. Their father is an absentee and, therefore, under Article LCCP 683 C, the mother is the proper party plaintiff to enforce the right of her unemaneipated minors.
X.
At all times pertinent hereto, Kendra Reed is the minor daughter of Bernice Reed. Her father is an absentee and, therefore, under Article LCCP 683 C, the mother is the proper party plaintiff to enforce the right of her unemaneipated minor.
XI.
At all times pertinent hereto, Jada Johnson is the minor daughter of Darlene Johnson. Her father is an absentee and, therefore, under Article LCCP 683 C, the mother is the proper party plaintiff to enforce the right of her unemaneipated minor.

Ii(Emphasis added.) La. C.C.P. art. 683, relative to unemaneipated minors, provides as follows:

Art. 683 Unemaneipated minor
A. An unemaneipated minor does not have the procedural capacity to sue.
B. Except as otherwise provided in Article 4431, the tutor appointed by a court of this state is the proper plaintiff to sue to enforce a right of an unemaneipated minor, when one or both of the parents are dead, the parents are divorced or judicially separated, or the minor is an illegitimate child.
C. The father, as administrator of the estate of his minor child, is the proper plaintiff to sue to enforce a right of an unemaneipated minor who is the legitimate issue of living parents who are not divorced or judicially separated. The mother, as the administratrix of the estate of her minor child, is the proper plaintiff in such an action, when the father is mentally incompetent, committed, interdicted, imprisoned, or an absentee. Moreover, with permission of the judge, the mother may represent the minor whenever the father fails or refuses to do so; and in any event she may represent the minor under the conditions of the laws on the voluntary management of another’s affairs.

(Emphasis added.) Allstate argues that the petition fails to allege that plaintiffs have been judicially qualified as administratrices of the estates of the minor children as required by La. C.C.P. art. 683 B.

The plaintiffs in this case specifically alleged that the fathers of all the minor children are absentees. Therefore, under the provisions of La. C.C.P. art 683(C), the mothers are the proper party plaintiff to enforce the rights of their unemaneipated minor. Accordingly, the trial court properly overruled the dilatory exception of lack of procedural capacity.

\5Declinat0ry exception of improper venus

Next, Allstate argues that Orleans Parish is an improper venue for a direct action against an insurance company, in a claim seeking penalties and attorney’s fees under LSA-R.S. 22:1220. Allstate claims that actions by a third party against a foreign insurer which has no claims’ office in [1154]*1154Orleans Parish, and which has performed no actions in Orleans Parish must be brought in East Baton Rouge Parish. In support of this argument, Allstate cites both the Louisiana Supreme Court’s summary decision in Ieyoub ex rel. State v. W.R. Grace & Co., 97-0181 (La.3/27/97), 692 So.2d 381, and this court’s unpublished writ disposition in Meeks v. Derbnery and Allstate Insurance Company, writ no. 97-C-2141 (La.App. 4 Cir. 11/18/97).

Plaintiffs argue that neither of the eases cited by Allstate controls the instant case because the petitions filed in those cases contained no allegations that the wrongful conduct occurred in or that the damages were sustained in Orleans Parish. Plaintiffs argue venue is proper in Orleans Parish in the instant ease because the complained of actions all occurred in Orleans Parish and the damages were sustained in Orleans Parish.

First, we note that neither of the decisions cited by Allstate controls the instant case. The Louisiana Supreme Court’s writ disposition in Ieyoub ex rel. State, states as follows:

Granted. Judgment of the court of appeal is reversed. Exception of improper venue sustained. Case remanded to the district court for East Baton Rouge Parish for further proceedings.

692 So.2d 381. Moreover, the appellate court decision which was reversed by the above summary decision is unreported. Ieyoub ex rel. State, 686 So.2d 183 (La.App. 3 Cir. 12/18/96). Moreover, Meeks is an unreported decision, which clearly has no precedential value. In fact, this court is barred from considering those writ ^decisions by the rule prohibiting the use of unpublished decisions as precedent. Roberts v. Sewerage & Water Board, 92-2048 (La.2/21/94), 634 So.2d 341, 349; Boatwright v. Metropolitan Life, 95-2473, 95-2525 (La.App. 4th Cir.3/27/96), 671 So.2d 553, 556, fn. 1, writ denied, 96-1327 (La.6/28/96), 675 So.2d 1130, footnote 1, citing Uniform Rules, Courts of Appeal, Rule 2-16.3. In fact, Allstate’s citation of, quotation from, and reference to the unpublished decision in a brief to this court is improper.

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Bluebook (online)
722 So. 2d 1152, 97 La.App. 4 Cir. 2141, 1998 La. App. LEXIS 3636, 1998 WL 839708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-allstate-insurance-co-lactapp-1998.