Seaberry v. Smith

538 So. 2d 1010, 1989 La. LEXIS 509, 1989 WL 14648

Opinion

In Re Jimmy Smith and Horace Mann Insurance Company Applying for Rehearing of this Court’s Order of January 30, 1989; to the Court of Appeal Fifth Circuit, No. 87-CA-0897; 24th Judicial District Court Parish of Jefferson, Division “I”, No. 314-630.

Rehearing granted with order. See attached.

LEMMON, J., dissents, and would adhere to the original order.

REHEARING GRANTED. Upon further consideration, we find that the court of appeal’s January 6, 1989 ruling did not constitute a substantive change to a definitive judgment. The court of appeal made reference, in its May 16, 1988 opinion immediately preceding the concluding paragraph, to the fact that relator’s policy limits (“proceeds”) are $10,000. The court of appeal simply neglected to specify in the concluding paragraph of that opinion, or in its subsequent action on November 16, 1988 (a three paragraph change which does not specify that Horace Mann is cast in judgment without limits, and which has a decree which states simply “judgment rendered”), that the judgment against relator would be limited to its policy limits plus legal interest and court costs. The court of appeal’s January 6, 1989 ruling thus was not a substantive change in a definitive judgment, but instead was a denial of relator’s motion for clarification with dicta that was essentially correct, i.e., “Mover’s liability is restricted to its policy limits, plus interest, fees and costs.” Therefore, we vacate the portion of our ruling of January 30, 1989 which set aside the court of appeal’s January 6,1989 order. However, we do not disturb our January 30, 1989 order insofar as it set aside the December 22, 1988 stay order issued by the trial judge at Horace Mann’s request.