Timothy D. Koehl Versus Rli Insurance Company

• Court: Louisiana Court of Appeal
• Decided: October 30, 2024
• Docket: 23-C-563
• Status: Unknown

Opinion

TIMOTHY D. KOEHL NO. 23-C-563

VERSUS FIFTH CIRCUIT

RLI INSURANCE COMPANY, ET. AL COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 758-658, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

October 30, 2024

FREDERICKA HOMBERG WICKER JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Timothy S. Marcel

MOTION TO DISMISS DENIED; WRIT DENIED FHW SJW TSM COUNSEL FOR PLAINTIFF/RELATOR, TIMOTHY D. KOEHL Darla L. D'Amico Michael J. Almerico

COUNSEL FOR DEFENDANT/RESPONDENT, AXIS SURPLUS INS. CO. Sarah R. Smith Rachel D. Chance

COUNSEL FOR DEFENDANT/RESPONDENT, RLI INS. CO. AND PACKARD TRUCK LINES, LLC Matthew D. Moghis William Peter Connick Michael S. Futrell Tucker H. Wimberly

DEFENDANT/RESPONDENT, EXECUTOR OF THE SUCCESSION OF ROBERT T. SALASSI Robert T. Salassi, Jr. - In Proper Person WICKER, J.

In this writ application, plaintiff seeks review of the trial court’s August 10,

2023 judgment, denying his “Motion to Annul, Set Aside, and Vacate Judgment.”

For the following reasons, we deny the writ.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on March 14,

2015 in Metairie, Louisiana. According to plaintiff, Timothy Koehl, he was

stopped at a stop sign at the exit of a Lowe’s parking lot, waiting to turn right onto

Veterans Boulevard, when a vehicle driven by defendant, Robert Salassi, attempted

to turn into the parking lot from Veterans and struck his vehicle. At the time of the

accident, Mr. Salassi, who was one of the three members/owners of Packard Truck

Lines, L.L.C. (“Packard”) until his November 2015 death, was driving a personally

owned vehicle listed as a “covered auto” under Packard’s commercial automobile

liability policy issued by defendant, RLI Insurance Company (“RLI”), as the

primary insurer. Packard also had commercial liability coverage with Axis Surplus

Insurance Company (“Axis”) as its excess insurer.

On March 11, 2016, Mr. Koehl filed this lawsuit against Mr. Salassi,

Packard, and RLI, alleging he suffered substantial injuries as a result of the

accident. On June 26, 2019, Mr. Koehl filed a first supplemental and amending

petition, adding Axis Surplus Insurance Company (“Axis”) and Jamie Salassi, the

surviving spouse and testamentary executrix of Mr. Salassi’s estate, as defendants.

Thereafter, the parties filed various pleadings, including motions for

summary judgment pertaining to insurance coverage, waiver of affirmative

defenses, and vicarious liability that were denied by the trial court. Defendants

sought review of the denial of their motions for summary judgment. On March 29,

2021, this Court denied the insurers’ writ applications seeking review of the denial

of their motions. See Koehl v. RLI Ins. Co., et al., 21-C-69 c/w 21-C-70 and 21-C-

23-CA-585 1 74 (La. App. 5 Cir. 3/29/21) (unpublished writ disposition). On May 12, 2021, this

Court granted Packard’s writ application, after determining Mr. Salassi was not in

the course and scope of his employment with Packard at the time of the accident,

and granted summary judgment in Packard’s favor, dismissing Mr. Koehl’s claims

of vicarious liability against it. See Koehl v. RLI Insurance Company, 21-68 (La.

App. 5 Cir. 5/12/21), 325 So.3d 1110, 1115.

On April 18, 2023, RLI and Axis re-urged their previously filed motions for

summary judgment on the issues of coverage and waiver of affirmative defenses.

RLI also filed an exception of no right of action, alleging that Mr. Koehl had no

right of action against RLI as Packard’s insurer, because this Court found Packard

had no liability. On April 19, 2022, the trial court rendered judgment in favor of

RLI and Axis, granting their motions for summary judgment and RLI’s exception

and dismissing Mr. Koehl’s claims against them with prejudice.1

Mr. Koehl appealed the April 19, 2022 judgment raising three assignments

of error: 1) the trial court erred as a matter of law in granting summary judgment in

favor of RLI and Axis on the issues of coverage and waiver, because RLI and Axis

made “repeating multiple admissions” against their interests, and because there is

coverage for Mr. Salassi’s vehicle and no policy exclusions apply; 2) the trial court

erred in granting the motions for summary judgment when there remain genuine

issues of material fact regarding waiver; and 3) the trial court erred in granting the

peremptory exception of no right of action, because the petition expressly states a

cause of action against the insurer of a “covered auto” under Louisiana’s general

law of negligence and Compulsory Motor Vehicle Liability Laws, La. R.S. 32:900,

1 The judgment was amended on October 18, 2022, to include the proper decretal language for a valid, final judgment per La. C.C.P. arts. 1918 and 1951.

23-CA-585 2 32:861, and 22:126. Koehl v. RLI Ins. Co., 22-370 (La. App. 5 Cir. 5/24/23), 367

So.3d 122, 127-28.

On appeal, this Court affirmed the summary judgment granted in favor of

Axis, finding that Mr. Salassi, driving a vehicle that he personally owned, was not

an “insured” under the terms and exclusions of the policy. Id. at 131-132.

However, as to the summary judgment on coverage and the partial summary

judgment on waiver granted in favor of RLI, this Court reversed, finding “genuine

issues of material fact as to whether RLI waived its affirmative defenses as to

coverage in this case,” and remanded the matter to the trial court for further

proceedings. Koehl, 367 So.3d at 130. This Court also reversed the judgment

granting RLI’s exception of no right of action. Id. at 132. The Louisiana Supreme

Court denied writs. Koehl v. RLI Ins. Co., 23-1057 (La. 12/5/23), 373 So.3d 980;

and Koehl v. RLI Ins. Co., 23-1052 (La. 12/5/23), 373 So.3d 981.

On April 18, 2023, after the appeal was submitted to this Court but before

this Court’s May 24, 2023 opinion was issued, Mr. Koehl filed in the trial court a

“Motion to Annul, Motion to Set Aside, and Motion to Vacate Judgment” (“motion

to annul”). In his motion, Mr. Koehl cited La. C.C.P. art. 2002, et seq., and argued

that the April 19, 2022 judgment, which was pending on appeal, is an absolute

nullity “because there was no proper service requested and/or made upon the

defendant, Successor to Independent Testamentary Executrix, Robert Salassi, Jr.,

Executor of the Succession of Robert T. Salassi, of each of these Defendant’s

respective, dispositive Summary Judgments.”

On August 10, 2023, the trial court denied Mr. Koehl’s motion to annul.

The trial court’s reasons for judgment reflect it construed Mr. Koehl’s pleading as

23-CA-585 3 a motion for new trial and found the motion, filed approximately one year after the

trial court’s April 19, 2022 judgment, to be untimely under La. C.C.P. art. 1972.2

LAW AND DISCUSSION

On December 7, 2023, Mr. Koehl filed this writ application, seeking review

of the August 10, 2023 judgment denying his motion to annul.3 On January 13,

2024, Axis filed a motion to dismiss this writ application, asserting the trial court

correctly construed Mr. Koehl’s motion to annul as an untimely motion for new

trial. Axis further argues: 1) the service issue was already presented to this Court;

2) there was no deficiency in service, pursuant to La. C.C.P. art. 1313(A)(3); 3) the

jurisprudence cited by Mr. Koehl in support of his writ application is not

dispositive of the instant dispute; and 4) precedent from this Court supports a

finding that Mr. Koehl waived any argument regarding service.

Axis has not alleged any procedural or jurisdictional issues pertaining to the

writ application. The issues raised in Axis’ motion to dismiss primarily address

the merits of the writ application and provide no basis for dismissal prior to

consideration of the merits. Accordingly, we deny Axis’ motion to dismiss the

writ application.

Turning to the merits of the writ application, Mr. Koehl contends the trial

court erred by denying his motion to annul the April 19, 2022 judgment, because

RLI and Axis failed to serve Mr. Salassi’s succession with the motions for

summary judgment and exception of no right of action, including the hearing date.

He states that failure to serve a party is a vice of form under La. C.C.P. 2002,

which renders the judgment an absolute nullity. Mr. Koehl further argues the

2 Although the trial court relied on La. C.C.P. art. 1972, which concerns the grounds for the granting of a new trial, it appears the trial court considered La. C.C.P. art. 1974, which concerns the time delay for applying for a new trial. 3 Mr. Koehl also filed an appeal with this Court, case number 23-CA-585, requesting the same review that he seeks in this writ application.

23-CA-585 4 judgment should be annulled due to fraud or ill practices pursuant to La. C.C.P. art.

2004.

As to RLI, we find that the trial court had no basis to grant the motion to

annul and therefore, the motion was properly denied. While Mr. Koehl’s appeal of

the April 19, 2022 judgment was pending in this Court, he filed his motion to annul

the judgment in the trial court. On May 24, 2023, this Court reversed the summary

judgments in favor of RLI and the judgment granting RLI’s exception of no right

of action. Consequently, on August 10, 2023, when the trial court rendered its

judgment denying the motion to annul, the matter was moot since the judgment

had already been reversed as to RLI.

With regard to Axis, in our May 24, 2023 opinion, this Court affirmed the

summary judgment rendered in Axis’ favor. Therefore, it was in effect when the

trial court ruled on the motion to annul.

“The nullity of a final judgment may be demanded for vices of either form

or substance, as provided in Articles 2002 through 2006.” La. C.C.P. art. 2001.

La. C.C.P. art. 2002 provides for annulment of a final judgment for vices of form,

which include lack of jurisdiction and lack of service, and states that an action on

these grounds may be brought at any time. Anderson v. Anderson, 20-186 (La.

App. 5 Cir. 12/23/20), 309 So.3d 868, 873. La. C.C.P. art. 2004 provides for

annulment of a final judgment for vices of substance, specifically fraud or ill

practices, and limits the time to bring action on those grounds to one year. Mr.

Koehl brought his motion to annul under both article 2002 and article 2004.

A judgment that is rendered when there is a vice of form, such as invalid

service of process, is an absolute nullity. Jefferson Community Health Care

Center, Inc. v. Roby, 15-198 (La. App. 5 Cir. 11/19/15), 180 So.3d 585, 587;

Barnett Marine, Inc. v. Van Den Adel, 96-1029 (La. App. 5 Cir. 4/9/97), 694 So.2d

23-CA-585 5 453, 456-457, writ denied, 97-1236 (La. 9/26/97), 701 So.2d 983. Although the

Code of Civil Procedure provides for an “action of nullity,” allowing parties to file

a direct action to nullify a prior incorrect judgment, it is well-settled that an

absolutely null judgment may also be collaterally attacked by procedural means

short of a petition for nullity, such as a contradictory motion or rule. Zavala v.

Dover Constr. USA, LLC, 17-1 (La. App. 1 Cir. 4/11/18), 249 So.3d 24, 29;

Lexington Ins. Co. v. Tasch, Inc., 12-339 (La. App. 5 Cir. 11/27/12), 105 So.3d

950, 956.

Mr. Koehl sought to annul the April 19, 2022 judgment collaterally by filing

a motion to annul the judgment, in lieu of filing an ordinary proceeding. In order

for an appellate court to consider the merits of a collateral attack based on a vice of

form, the defect raised must be apparent on the face of the record. G R Const. &

Renovation, LLC v. White, 14-62 (La. App. 5 Cir. 5/21/14), 142 So.3d 207, 209;

Lepine v. Lepine, 17-568 (La. App. 5 Cir. 3/14/18), 243 So.3d 737, 741.

Mr. Koehl contends the service defect is apparent on the face of the record,

because the record shows that on August 2, 2021, the trial court granted the motion

to withdraw filed by Steven Medo, prior counsel for the succession, and defendants

did not request service of their motions or the hearing date on Mr. Salassi’s

succession. Counsel for Axis indicated in its re-urged motion for summary

judgment that a copy of the pleading was served on all counsel of record, including

Mr. Medo. RLI’s motions for summary judgment indicate service was sent by

electronic mail to all known counsel of record. Mr. Koehl filed a memorandum in

opposition to the motions, indicating all counsel of record were served. However,

the record does not reflect the succession had counsel of record at that time.

We agree with Mr. Koehl that a collateral attack on the judgment was

permissible. However, our review of the record reveals Mr. Koehl waived any

right to object to lack of proper service on the succession in this matter.

23-CA-585 6 A motion for summary judgment is a contradictory proceeding that requires

service of process. La. C.C.P. arts. 1313 and 1314; Reed v. Landry, 21-589 (La.

App. 5 Cir. 6/3/22), 343 So.3d 874, 878. The party contending insufficient service

of process must file a declinatory exception and request a ruling on the exception

prior to submitting to a hearing on the merits of the motion for summary judgment.

Id.; State v. Kee Food, Inc., 17-127 (La. App. 1 Cir. 9/21/17), 232 So.3d 29, 32,

writ denied, 17-1780 (La. 12/5/17), 231 So.3d 632.

A party who fails to file an exception of insufficient service of process and

appears and argues the merits of a motion for summary judgment waives the right

to object to improper service of process. La. C.C.P. art. 925; Kee Food, Inc., 232

So.3d at 32; Reed, 343 So.3d at 878. While a declinatory exception is required to

be in writing pursuant to La. C.C.P. art. 924, courts have acknowledged an

exception of insufficient service of process if service is orally objected to at the

hearing. Id.

Here, Mr. Koehl contends there was insufficient service of process on

another party, the succession. However, he did not file an exception or written

objection as to service, nor did he orally object to service of process at the hearing

of the motion on the merits. Instead, counsel for Mr. Koehl appeared and argued

his position before the trial court. Thus, since Mr. Koehl did not file a declinatory

exception or otherwise object prior to appearing and arguing the motion for

summary judgment, we find he waived the right to object on the grounds of

improper service of process.

Additionally, La. C.C.P. art. 2005 provides that “[a] judgment affirmed,

reversed, amended, or otherwise rendered by an appellate court may be annulled

only when the ground for nullity did not appear in the record of appeal or was not

considered by the appellate court.” The law is clear that the existence of either of

the conditions in La. C.C.P. art. 2005 may prohibit maintenance of a nullity action.

23-CA-585 7 Dumas v. Board of Ethics, 19-289 (La. App. 1 Cir. 11/15/19), 290 So.3d 1143,

1147, writ denied, 19-2017 (La. 2/10/20), 294 So.3d 475.

The grounds Mr. Koehl raises for annulment of the judgment were in the

record of the appeal of the April 19, 2022 judgment, as indicated by the service

information on the motions for summary judgment and the order granting Mr.

Medo’s motion to withdraw. Further, in his previous appeal, while he did not raise

the service issue as an assignment of error, Mr. Koehl mentioned the service issue

in his appellant brief, asserting that “[s]ervice on the Salassi Succession Defendant

of the Summary Judgment filed on February 22, 2022, was not requested” and

“due process issues are present.” Moreover, while we are not a court of record, the

parties agree in their memoranda that the service issue was discussed during oral

argument of the appeal. Therefore, because the grounds for nullity appeared in the

record of the prior appeal, La. C.C.P. art. 2005 precludes an action to nullify the

judgment.

Because the nullity action is precluded under La. C.C.P. art. 2005, and

considering Mr. Koehl waived any right to object to improper service by failing to

file an exception of insufficiency of service of process or to object at the hearing,

we find no error in the trial court’s August 10, 2023 judgment denying Mr. Koehl’s

motion to annul the April 19, 2022 judgment in favor of Axis.

CONCLUSION

For the reasons provided herein, we deny Axis’ motion to dismiss this writ

application. We further find the trial court correctly denied Mr. Koehl’s “Motion

to Annul, Motion to Set Aside, and Motion to Vacate Judgment.” Accordingly,

this writ application is denied.

MOTION TO DISMISS DENIED; WRIT DENIED

23-CA-585 8 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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23-C-563 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE) DARLA L. D'AMICO (RELATOR) MATTHEW D. MOGHIS (RESPONDENT) MICHAEL S. FUTRELL (RESPONDENT) WILLIAM PETER CONNICK (RESPONDENT)

MAILED ROBERT T. SALASSI, JR. (RESPONDENT) SARAH R. SMITH (RESPONDENT) TUCKER H. WIMBERLY (RESPONDENT) 2085 BROOKRIDGE TERRACE ATTORNEY AT LAW ATTORNEY AT LAW ALPHARETTA, GA 30004-1681 24 GREENWAY PLAZA 3421 NORTH CAUSEWAY BOULEVARD SUITE 1400 SUITE 408 RACHEL D. CHANCE (RESPONDENT) HOUSTON, TX 77046 METAIRIE, LA 70002 ATTORNEY AT LAW 400 POYDRAS STREET MICHAEL J. ALMERICO (RELATOR) SUITE 1300 ATTORNEY AT LAW NEW ORLEANS, LA 70130 501 CLEARVIEW PARKWAY METAIRIE, LA 70001