Rimsky v. Currier

649 So. 2d 1248, 1995 La. App. LEXIS 249, 1995 WL 53187
CourtLouisiana Court of Appeal
DecidedFebruary 10, 1995
DocketNo. 26,379-CA
StatusPublished
Cited by1 cases

This text of 649 So. 2d 1248 (Rimsky v. Currier) 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
Rimsky v. Currier, 649 So. 2d 1248, 1995 La. App. LEXIS 249, 1995 WL 53187 (La. Ct. App. 1995).

Opinion

| iNORRIS, Judge.

The Commissioner of Insurance, James H. “Jim” Brown, in his capacity as Liquidator of Car Insurance Company, In Liquidation (f/ k/a Automotive Casualty Insurance Company), suspensively appeals an adverse trial court judgment granting the motion of plaintiff, David Rimsky, to remove the cash sus-pensive appeal bond, posted by Automotive Casualty prior to its insolvency, from the court registry, and denying the Commissioner’s motion to obtain the bond. For the following reasons, we affirm.

Facts

The instant litigation stems from a ear accident involving David Rimsky, a Shreveport police officer, and Robert Currier in March 1991. Rimsky filed suit in the First Judicial District Court of Caddo Parish against the driver, Currier, his insurer, Automotive Casualty, and his own UM Carrier, State Farm. The City of Shreveport, Rim-sky’s employer, intervened to recover medical expenses it paid on his behalf. Because Automotive Casualty admitted both the liability and coverage of its insured prior to [1249]*1249trial, the lower court addressed only quantum. On June 1, 1992, the trial court rendered judgment in favor of Rimsky and the City of Shreveport totalling $7104.51.

On June 22, 1992, Automotive Casualty perfected a suspensive appeal and deposited in the court registry a cash bond for $7880.08, representing the judgment plus interest. While the appeal was pending, in August 1992, the Commissioner instituted insolvency proceedings against Automotive Casualty in the Nineteenth Judicial District Court. On August 24, 1992, the court ordered Automotive Casualty to be placed in conservation. By consent order in September 1992, Automotive Casualty was placed in rehabilitation. Both orders enjoined all individuals and entities from instituting or taking further action in |2any suit or proceeding against Automotive Casualty or the Commissioner of Insurance and from making any levy or seizure against the insurer or its estate and assets while in the Commissioner’s possession. Finally, in January 1993, Automotive Casualty was placed in liquidation. The Order of Liquidation maintained in full force and effect all prior stay orders.

On December 16,1993, Automotive Casualty filed a motion with this court to stay the appeal pursuant to the stay orders issued by the Nineteenth JDC. We granted the motion and stayed the proceedings under La. R.S. 22:1392. Noting the passage of ninety days, we issued a Rule to Show Cause why the stay of appeal should not be lifted. We received no opposition from either party to lifting the stay; in fact, we received notice from Automotive Casualty that the Nineteenth JDC stay order had been lifted. Consequently, we vacated the § 1392 stay order. On October 27, 1993, in an unpublished opinion, this court affirmed the trial court judgment. All appeal delays ran and this judgment became final. La.C.C.P. art. 2166.

On December 9, 1993, Rimsky filed a motion in the First JDC to remove the cash suspensive appeal bond from the registry of the court. A few days later, the Commissioner of Insurance filed a motion to obtain the cash suspensive appeal bond. The court heard both rules on December 20. It concluded that the cash bond, encumbered prior to the liquidation order, secured the final judgment. To find otherwise, the court reasoned, would usurp the purpose of a suspen-sive appeal bond, ensuring satisfaction of the judgment. On December 21, 1993, the court rendered a final judgment granting Rimsky’s motion and denying the Commissioner’s motion.

The Commissioner appeals, urging the trial court erred in releasing the appeal bond to Rimsky rather than him in contravention of the Louisiana Insurances Code, the Uniform Insurer’s Liquidation Act, and the Nineteenth JDC’s Order of Liquidation. Specifically, he argues that Rimsky is entitled to only a pro rata share of the insurer’s assets as any other general creditor, La.R.S. 22:745 et seq.; that the Commissioner was vested with title to all assets of the insurer as of the date the order of rehabilitation issued, La.R.S. 22:735; and that any execution against the insurer or its assets is prohibited by La.R.S. 22:762 and the Nineteenth JDC’s injunction in the Order of Liquidation.1 Rimsky counters that neither insurance law nor the Order of Liquidation prevents his withdrawing the cash suspensive appeal bond, deposited by Automotive Casualty as security that it would prosecute the appeal and pay any judgment rendered against it. La.C.C.P. art. 2124, La.C.C. art. 3068.

Discussion

It is well established that when statutes on the same subject matter conflict, those most specifically directed to the matter at issue must prevail. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980), and authorities therein; Sargent v. Louisiana Health Serv. & Indem., 550 So.2d 843 (La.App.2d Cir.1989). At issue in the instant case is the proper disposition of cash posted for a sus-pensive appeal, a matter not addressed by [1250]*1250the Louisiana Insurance Code, but rather governed by the rules of suspensive appeals. La.C.C.P. art. 2124; La.C.C. art. 3068; Bertrand v. Richard, 94-274 (La.App. 3d Cir. 10/5/94), 643 So.2d 383.

In order to perfect a suspensive appeal and suspend the effect or execution of an appealable judgment, the appellant must furnish security. La.C.C.P. Larts. 2123, 2124B. The purpose of security is to protect the judgment creditor against the insolvency of the judgment debtor during the course of an appeal. Wright v. Jefferson Roofing, Inc., 93-1217 (La. 1/14/94), 630 So.2d 773, 775.

The suspensive appeal bond is furnished as security that the appellant will prosecute his appeal, that any judgment against him will be paid or satisfied from the proceeds of the sale of his property, or that otherwise the surety is liable for the amount of the judgment. La.C.C.P. art. 2124D. Generally, the appellant obtains a surety to post an appeal bond. However, a cash bond may be deposited in the registry of the court in lieu of a surety bond; the funds are held in pledge as security for the obligation. La.C.C. art. 3068; Bordelon v. Safeway Ins. Co., 398 So.2d 183 (La.App. 3d Cir.), writ denied, 404 So.2d 280 (1981); Marie v. Police Jury of the Parish of Terrebonne, 157 So.2d 919 (La.App. 1st Cir.1963). If the judgment is ultimately affirmed, the plaintiff has a right to satisfy it from the cash appeal bond. See Powell v. Automotive Casualty Ins. Co., 94-0563 (La. 4/29/94), 637 So.2d 452.

The pledge of a cash suspensive appeal bond is distinct and unique. Suspensive appeal bonds are not pledged with no strings attached, but are tendered to the court for disbursement to the creditor should the judgment become final in favor of the appellee. Powell, supra; Bertrand, supra. Under La. C.C.P. art. 2124D, the appellant agrees to prosecute the appeal and satisfy the judgment; the bond secures payment of the judgment upon failure of either condition. When the appellant-debtor gives the cash suspen-sive appeal bond to the clerk of court, an agent of the creditor, a security interest in favor of the creditor attaches and is perfected. La.R.S. 10:9-203; 9-305(1). Upon default (failure to prosecute the appeal or to satisfy the final judgment), the secured party may execute upon or enforce the security interest by any available judicial |sprocedure. La.R.S. 10:9-305(1).

Our brethren on the Third Circuit recently addressed the issue now before this court. In Bertrand v. Richard,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Griffin v. Louisiana Sheriff's Auto Risk
802 So. 2d 691 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 1248, 1995 La. App. LEXIS 249, 1995 WL 53187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rimsky-v-currier-lactapp-1995.