State Farm Mutual Automobile Ins. Co. v. Norcold, Inc.

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 11-1355

STATE FARM MUTUAL AUTOMOBILE INS. CO., ET AL.

VERSUS

NORCOLD, INC., ET AL.

CONSOLIDATED WITH:

CA 11-1356

PROGRESSIVE SECURITY INS. CO. AS SUBROGEE OF RONALD SEMAR, ET AL.

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20093278 C/W 20097060 HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE

J. DAVID PAINTER

JUDGE

Court composed of Oswald A. Decuir, Billy H. Ezell, and J. David Painter, Judges.

RULE RECALLED AND APPEAL MAINTAINED IN 11-1355. APPEAL DISMISSED IN 11-1356. Robert Irwin Siegel John Ernest William Baay, II Elizabeth A. Chickering Gieger, LaBorde & Laperouse 701 Poydras St., 48th Floor New Orleans, LA 70139 (504) 561-0400 COUNSEL FOR DEFENDANTS/APPELLANTS: American Home Assurance Co. Norcold, Inc. National Union Fire Ins. Company of Pittsburgh

Louis Charles LaCour, Jr. Raymond Peter Ward Adams & Reese, LLP 701 Poydras, Suite 4500 New Orleans, LA 70139 (504) 581-3234 COUNSEL FOR DEFENDANTS/APPELLANTS: American Home Assurance Co. Norcold, Inc. National Union Fire Ins. Company of Pittsburgh

William Ransom Pipes Dustin G. Flint Hannah, Colvin & Pipes, LLP 2051 Silverside Drive, #260 Baton Rouge, LA 70808-4040 (225) 766-8240 COUNSEL FOR PLAINTIFFS/APPELLEES: State Farm Mutual Auto Ins. Co. State Farm Fire & Casualty Co.

Henry Dupont Heck Olinde, Jr. Olinde & Mercer 8562 Jefferson Hwy, Ste. B Baton Rouge, LA 70809 (225) 240-7297 COUNSEL FOR DEFENDANTS/APPELLANTS: American Home Assurance Co. Norcold, Inc. National Union Fire Ins. Company of Pittsburgh

Barry Louis Domingue Attorney at Law Post Office Box 80112 Lafayette, LA 70598 (337) 781-7486 COUNSEL FOR DEFENDANTS/APPELLEES: Dolores Semar Ronald Semar PAINTER, Judge.

This court issued, sua sponte, a rule ordering the Appellants, Norcold, Inc.,

American Assurance Company and National Union Fire Insurance Company of

Pittsburgh, PA, to show cause, by brief only, why one of these two consolidated

appeals should not be dismissed as premature. The instant appeal has been

consolidated with another appeal, which is filed under this court’s docket number 11-

1356 and which bears the caption Progressive Security Ins. Co. As Subrogee of

Ronald Semar, et al. versus Norcold, Inc., et al. For the reasons given herein, we

hereby recall the rule and maintain the instant appeal filed under docket number 11-

1355. However, we order that the companion appeal, filed under docket number 11-

1356, be dismissed.

Two related lawsuits were filed as a result of property damages sustained when

a fire ignited in a mobile home allegedly due to a defective refrigerator located in the

mobile home. As a result of the fire, Ronald and Delores Selmar, who owned the

mobile home, museum building and two vehicles which were also damaged by the fire,

filed property damage claims and recovered under insurance policies issued by State

Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty

Company (hereinafter collectively referred to as “State Farm”) as well as under a

policy issued by Progressive Security Insurance Company (Progressive). After

paying the Selmars’ claims, State Farm and Progressive filed separate lawsuits

seeking reimbursement from Newmar Corporation, the manufacturer of the mobile

home, and Norcold, Inc., the manufacturer of the refrigerator in the mobile home.

The lawsuits were consolidated. The suit filed by State Farm went to trial and, on

July 19, 2011, a money judgment was rendered against Appellants, Norcold, Inc.,

American Assurance Company and National Union Fire Insurance Company of

Pittsburgh, PA. Thereafter, Appellants filed a motion for appeal, and an order of

appeal was signed by the trial court. When the appeals were lodged in this court, it appeared that Appellants were

seeking an appeal with regard to both of the consolidated cases. While the appeal

record indicated that a final judgment had been rendered with regard to the suit filed

by State Farm, there was no indication that a final judgment been rendered with

regard to the suit filed by Progressive. Therefore, this court issued a rule for

Appellants to show cause why the appeal with regard the Progressive suit should not

be dismissed for having been taken prematurely.

In their response to this court’s rule to show cause order, Appellants assert that

the appeal from the State Farm suit is not premature because it was taken from a final

judgment rendered after a trial on the merits of the case. Appellants contend that,

although the docket numbers for both suits were listed on the motion and order for

appeal, Appellants did not wish to take an appeal with regard to the Progressive suit.

In fact, Appellants point out that the Progressive suit was settled and dismissed prior

to the trial of the State Farm suit.

We find that that the appeal regarding the suit filed by State Farm is properly

before this court because it has been taken from a final, appealable judgment. See

La.Code Civ.P. arts. 1841 and 2083. However, as noted by Appellants, because the

suit filed by Progressive was settled before trial, there are currently no issues pending

on appeal with regard to that case. Therefore, we hereby recall the rule and allow the

appeal to proceed with regard to the State Farm case filed under docket number 11-

1355. However, we hereby order that the appeal regarding the other consolidated case,

which involves the lawsuit filed by Progressive and which bears this court’s docket

number 11-1356, be dismissed.

RULE RECALLED AND APPEAL MAINTAINED IN 11-1355. APPEAL DISMISSED IN 11-1356.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.