Wayne McKowen, LLC d/b/a Revive Softwash and Wayne McKowen v. Frank Winston Crum Insurance Company

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2024 CA 0352

WAYNE McKOWEN, LLC d/b/a REVIVE SOFTWASH AND WAYNE McKOWEN

VERSUS

FRANK WINSTON CRUM INSURANCE COMPANY

JAN l 'i' ,~,;;-

Judgment Rendered: ____ _

On Appeal from the

City Court ofBaton Rouge

Parish of East Baton Rouge, State of Louisiana Trial Court No. 21-03322

The Honorable Johnell M. Matthews, Judge Presiding

Heather A. Cross Attorney for Plaintiff-Appellant, Baton Rouge, Louisiana Wayne McKowen

Richard G. Duplantier, Jr. Attorneys for Defendant-Appellee, James A. Morock, Jr. Frank Winston Crum Ins. Co. New Orleans, Louisiana

BEFORE: WOLFE, MILLER, AND GREENE, JJ.

WOLFE,J.

Wayne McKowen, individually, appeals from the trial court's judgment that

sustained a peremptory exception raising the objection of no right of action in part

and in favor ofFrank Winston Crum Insurance Company. For the following reasons,

we dismiss this appeal for lack of subject matter jurisdiction.

FACTS AND PROCEDURAL HISTORY

Frank Winston Crum Insurance Company ( FWC) issued a workers'

compensation insurance policy, effective January 1, 2020, through January 1, 2021,

to Wayne McKowen, LLC, d/b/a Revive Softwash ( Revive). Wayne McKowen is

the sole member of the closely held LLC d/b/a as Revive. On December 2, 2020,

Revive's newly hired employee in training, Jimmie Ballard, was injured in the

course and scope of his employment with Revive. Revive reported Mr. Ballard's

workers' compensation claim to FWC; however, FWC denied coverage because Mr.

Ballard was not yet listed as an employee on Revive's payroll.

Revive voluntarily paid $ 2,715.00 to Mr. Ballard to help with his expenses

until he was able to return to work in April 2021. Mr. McKowen and Revive also

provided meal and transportation services to Mr. Ballard during that time.

Meanwhile, Mr. Ballard, who was represented by counsel, refused settlement offers

by Mr. McKowen and Revive. Mr. Ballard's counsel threatened litigation against

Mr. McKowen and Revive, seeking penalties and damages for the alleged failure to

maintain workers' compensation insurance. According to Mr. McKowen, the threat

of litigation caused him extreme worry and distress, as he feared financial ruin for

him and Revive.

On June 23, 2021, six months after the original claim, FWC sent a formal

letter denying coverage. When Mr. McKowen received Mr. Ballard's Disputed

Claim for Damages, he submitted the claim to FWC and requested defense and

indemnity under the policy for a second time. On July 16, 2021, after review of an

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endorsement to the policy, FWC changed its position and admitted coverage for Mr.

Ballard's ittjury. A few days later, on July 20, 2021, Mr. McKowen (through his

attorney) forwarded a demand letter itemizing costs, with invoices supporting

expenses totaling $6,645.00 incurred by Revive as a result ofFWC's original denial

of the claim. When no response or reimbursement was made by FWC more than

sixty days after the demand was made, Revive and Mr. McKowen, individually, filed

suit against FWC on September 30, 2021. Revive and Mr. McKowen sought

penalties pursuant to La. R.S. 22: 1973, alleging FWC had breached a duty ofgood

faith and fair dealing by misrepresenting pertinent facts and policy provisions and

had arbitrarily and capriciously denied coverage for the accident without just cause.

Additionally, Mr. McKowen alleged that he had personally suffered damage and

was entitled to recover for mental anguish and distress.

FWC answered the lawsuit on November 15, 2022, conceding that after a

good faith review of the claim, it began providing coverage to its insured, Revive,

on July 16, 2021. FWC denied breaching any duty to Revive and pointed out that

Mr. McKowen was not a party to the insurance policy and, therefore, was not entitled

to any damages for his personal distress. A copy of the policy was attached as an

exhibit to FWC's answer.

On April 13, 2023, FWC filed a peremptory exception raising the objection

of no right ofaction, arguing that neither Revive nor Mr. McKowen were entitled to

penalties pursuant to La. R.S. 22: 1973 since FWC had a reasonable and good faith

dispute as to coverage and ultimately settled the matter with Mr. Ballard for

50,489.45. FWC also argued that Mr. McKowen was not entitled to any penalties

or damages because he was not the insured under the insurance policy. Revive and

Mr. McKowen opposed the exception of no right of action, maintaining that they

each had a right to recover damages and penalties for FWC's untimely payment of

covered losses and for misrepresenting pertinent facts regarding insurance policy

4

provisions relating to coverage. Mr. McKowen argued that the " entire situation

caused extreme distress" for him, because he " feared financial ruin over a matter ...

for] which he thought he had purchased insurance" on behalf of Revive. Mr.

McKowen also argued that FWC was responsible to him individually in tort for its

misrepresentations pertaining to the policy coverage for his business, whether he

was an insured under the policy or not.

The trial court heard the matter on August 23, 2023. Neither party introduced

any evidence at the hearing. The trial court signed a judgment on December 7, 2023,

denying the exception ofno right ofaction as to Revive and sustaining the exception

of no right of action as to Mr. McKowen personally. The trial court designated the

judgment as final pursuant to La. Code Civ. P. art. 191 S(B), upon a finding that there

was no just reason for delay. FWC filed an application for a supervisory writ of

review regarding the denial of the exception as to Revive. In a separate and

unpublished action, this court denied FWC's writ application on March 13, 2024.

On January 3, 2024, Mr. McKowen moved for an appeal of the trial court's

grant of the exception of no right of action as to him personally, and the trial court

signed the order ofappeal on January 31, 2024. In his appellate brief, Mr. McKowen

argues that he has a right of action against FWC for its misrepresentation of

insurance coverage for his business, Revive, which caused him great distress and

fear of financial ruin because of the perception that he had failed to maintain

workers' compensation coverage as legally required for Revive's employees. Mr.

McKowen contends that he has a right of action in tort against FWC, regardless of

whether he is the named insured under the policy or not.

LAW AND ANALYSIS

Appellate Jurisdiction

The judgment on appeal does not dismiss any of Mr. McKowen's claims

against FWC. As an appellate court, we have the duty to examine our subject matter

5

jurisdiction sua sponte, even when the parties do not raise the issue. Advanced

Leveling & Concrete Solutions v. Lathan Company, Inc., 2017-1250 ( La. App.

1st Cir. 12/20/18), 268 So.3d 1044, 1046 ( en bane). A final, appealable judgment

must be precise, definite, and certain, and it must contain decretal language, naming

the party in favor of whom the ruling is ordered, the party against whom the ruling

is ordered, and the relief that is granted or denied. Id. These determinations should

be evident from the language of the judgment without reference to other documents

in the record. Id. When faced with an otherwise final judgment that contains a

decretal-language deficiency, appellate courts are mandated to retain jurisdiction, to

order the trial court to supplement the record with an amended judgment, and to

render a decision on the merits once the record is supplemented. See La. Code Civ.

P. arts. 1918(A), 1951, and 2088(A)(2) as amended by La. Acts 2021 No. 259, § 2.

See also U.S. Bank National Association as Trustee for RFMSI 2005S7 v.

Dumas, 2021-0585 ( La. App. 1st Cir. 12/22/21), 340 So.3d 246,249.

Accordingly, on October 1, 2024, this court, ex proprio motu, issued an

interim order finding an apparent decretal language defect in the December 7, 2023

judgment. Particularly, this court noted that the judgment "merely enters a partial

judgment sustaining the peremptory exception of no right of action filed by [ FWC]

in part as to one of the plaintiffs, Wayne McKowen, but lacks decretal language

disposing of and/or dismissing any or all of [Mr. McKowen's] claims." Thus, we

remanded the matter to the trial court for the limited purpose of issuing an amended

judgment that corrects the deficiency, and to supplement the record on appeal with

the amended judgment.

On October 24, 2024, the trial court signed an amended judgment, and the

appellate record was supplemented with the amended judgment on October 28,

2024. Upon review ofthe amended judgment, this court finds that the judgment still

lacks appropriate decretal language. Despite further language in a paragraph that

6

identifies the parties and the exception that was ruled upon, the amended judgment

remains unclear as to whether any or all ofMr. McKowen' s individual claims against

FWC have been dismissed. ln the absence of appropriate decretal language clearly

disposing of and/or dismissing any or all of Mr. McKowen's claims against FWC,

the October 24, 2024 amended judgment is defective and cannot be considered a

final judgment for purposes of appeal.

Mindful of the Louisiana Supreme Court's action in Lacoste v. Davenport,

2023-0279 (La. App. 1st Cir. 11/3/23) (unpublished), 2023 WL 7271060, at * 3, writ

granted, cause remanded, 2023-01589 ( La. 2/6/24), 378 So.3d 730, and in the

interest ofjudicial efficiency, this court issued a second interim order on December

6, 2024, again noting the deficiencies, rather than dismissing the appeal at that point.

In the second interim order, we remanded the matter to the trial court with similar

instructions to supplement the record on appeal with an " amended judgment that

specifically indicates if any or all of the plaintiff's claims are dismissed[.]"

Emphasis in original.)

On December 19, 2024, the trial court signed a second amended judgment

providing that, " all claims for damages asserted by plaintiff, Wayne McKowen, LLC

D/B/A Revive Softwash are pending for trial on the merits. This Peremptory

Exception of No Right of Action is GRANTED against Wayne McKowen,

individually." The second amended judgment was supplemented into the appellate

record on January 3, 2025. Notably, the second amended judgment is clearly still

defective in that it does not dismiss any claims, and cannot be considered a final

judgment for purposes of appeal. Thus, we are constrained to find that this court

lacks appellate jurisdiction to review this matter, and the appeal must be dismissed. t

See Advanced Leveling & Concrete Solutions, 268 So.3d at 1046- I 047.

1 We recognize that this court has discretion to convert an appeal of a non-appealable judgment to an application for supervisory writs. See Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39. However, an appellate court will generally refrain from the exercise of its supervisory

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CONCLUSION

For the assigned reasons, we dismiss the appeal of the October 24, 2024

amended judgment as well as the December 19, 2024 second amended judgment.

Costs are assessed equally to defendant/appellee, Frank Winston Crum Insurance

Company, and plaintiff/appellant, Wayne McKowen, individually.

APPEAL DISMISSED.

jurisdiction when an adequate remedy exists by appeal upon the entry of the requisite precise, definite, and certain decretal language necessary for appellate review. See Simon v. Ferguson, 2018-0826 (La. App. 1st Cir. 2/28/19), 274 So.3d 10, 14. Accordingly, we decline to exercise our discretion to convert this appeal of a judgment that is not final for lack of decretal language to an application for supervisory writs. See Tchefuncte Harbour Association, Inc. v. Branighan, 2022-0404 (La. App. ! st Cir. 3/1/23), 2023 WL 2291033, * 9, n.1 ( unpublished).

WAYNE McKOWEN, LLC d/b/a STATE OF LOUISIANA REVIVE SOFTWASH AND WAYNE McKOWEN COURT OF APPEAL

VERSUS FIRST CIRCUIT

en FRANK WINSTON CRUM NUMBER 2024 CA 0352 V INSURANCE COMPANY

MILLER, J., dissenting.

st

I respectfully dissent. See Lacoste v. Davenport, 2023-0279 (La. App. l Cir.

11/3/23) 2023 WL 7271060 ( unpublished), writ granted. cause remanded, 2023-

01589 (La. 2/6/24), 378 So. 3d 730. Although this matter has been sent down two

times already to instruct the trial court to issue an amended judgment that specifically

indicates if any or all of the plaintifrs claims are dismissed and complies with La.

C.C.P. arts. 1918(A), 1951, and 2088(A)(12), as amended by La. Acts 2021 No. 259,

2, and the majority concludes that the defect remains, dismissal is not the answer

as dismissal of the appeal violates the supreme court's admonition that "[ t]he court

of appeal err[s] in dismissing [ an] appeal based on the failure of the trial court to

properly comply with the court ofappeal's ... interim order." Lacoste v. Davenport,

2023-01589 (La. 2/6/24), 378 So. 3d 730, see also Barnard v. Barnard, 96-0859 (La.

6/24/96), 675 So. 2d 734 ( holding the parties should not be penalized for a

procedural violation by the trial court).

I