§ 22:1269 — Liability policy; insolvency or bankruptcy of insured and inability to effect service

Louisiana § 22:1269

• Jurisdiction: Louisiana
• Title 22: Insurance

Text

§1269. Liability policy; insolvency or bankruptcy of insured and inability to effect service
of citation or other process; direct action against insurer
A. No policy or contract of liability insurance shall be issued or delivered in this
state, unless it contains provisions to the effect that the insolvency or bankruptcy of the
insured shall not release the insurer from the payment of damages for injuries sustained or
loss occasioned during the existence of the policy, and any judgment which may be rendered
against the insured for which the insurer is liable which shall have become executory, shall
be deemed prima facie evidence of the insolvency of the insured, and an action may
thereafter be maintained within the terms and limits of the policy by the injured person, or
his survivors, mentioned in Civil Code Art. 2315.1, or heirs against the insurer.
B.(1) The injured person or, if deceased, the persons identified in Civil Code Articles
2315.1 and 2315.2, shall have no right of direct action against the insurer unless at least one
of the following applies:
(a) The insured files for bankruptcy in a court of competent jurisdiction or when
proceedings to adjudge an insured bankrupt have been commenced before a court of
competent jurisdiction.
(b) The insured is insolvent.
(c) Service of citation or other process has been attempted without success or the
insured defendant refuses to answer or otherwise defend the action within one hundred eighty
days of service.
(d) When the cause of action is for damages as a result of an offense or quasi-offense
between children and their parents or between married persons.
(e) When the insurer is an uninsured motorist carrier.
(f) The insured is deceased.
(g) When the insurer is defending the lawsuit under a reservation of rights, or the
insurer denies coverage to the insured, but only for the purpose of establishing coverage.
(2) This right of direct action shall exist whether or not the policy of insurance sued
upon was written or delivered in the state of Louisiana and whether or not such policy
contains a provision forbidding such direct action, provided the accident or injury occurred
within the state of Louisiana. Nothing contained in this Section shall be construed to affect
the provisions of the policy or contract if such provisions are not in violation of the laws of
this state.
(3) The filing of an action against the insured shall interrupt prescription as to all
insurers whose policies provide coverage for the claims asserted in the action.
(4)(a) An insurer shall not be included in the caption of any action brought against
the insurer pursuant to this Section. The action shall instead be captioned only against the
insured defendant or other noninsurance defendants.
(b) A court shall not disclose the existence of insurance coverage to the jury or
mention such coverage in the jury's presence unless required by Code of Evidence Article
411.
(c) A court may dismiss the action against any insured or other defendant if the
action cannot proceed due to any of the circumstances in Paragraph (2) of this Subsection.
C. It is the intent of this Section that any action brought under the provisions of this
Section shall be subject to all of the lawful conditions of the policy or contract and the
defenses which could be urged by the insurer to a direct action brought by the insured,
provided the terms and conditions of such policy or contract are not in violation of the laws
of this state.
D.(1)(a) In those instances where direct action is not otherwise authorized by law,
at the time that a judgment is to be entered, or a settlement is reached during the pendency
of litigation, a liability insurer may be joined on motion of any party as a party defendant for
the purposes of entering final judgment or enforcing the settlement.
(b) The provisions of Subparagraph (a) of this Paragraph are subject to the terms and
limits of the policy and do not apply if the insurer timely denied coverage or reserved rights
under the provisions of Subsection E of this Section unless there has been an adjudication
in favor of coverage.
(c) Subject to the provisions of this Subsection, any judgment entered against an
insured shall also be rendered against any nonparty insurer that is joined post-verdict
pursuant to this Subsection. If a judgment is reversed or remanded on appeal, the insurer's
presence shall not be disclosed to the jury in a subsequent trial.
(2)(a) With the first responsive pleading filed on behalf of the insured defendant,
counsel for the insured defendant who is authorized by an insurer shall certify to the plaintiff
the name and address of any insurers for whom he is authorized to confirm that they waive
any further notice related to the cause of action other than that provided to the counsel for
the insured. The insurer is deemed to have all notice provided to the counsel for the insured
who has entered this waiver unless it provides written notice to the parties instructing that
notice be additionally sent to another counsel. If an insurer has waived notice of the cause
of action pursuant to this Subparagraph, then an order to join the defendant post-verdict may
be issued ex parte when filed.
(b) Notice of the commencement of a civil action may be provided by plaintiff or its
counsel to the nonparty insurer by service of the citation on the nonparty insurer by any
method of service on a defendant provided by law. Any copy of a motion to join the insurer
post-verdict transmitted pursuant to this Subparagraph may be granted in chambers fifteen
days following service pursuant to this Subparagraph unless a contradictory hearing is
requested prior to that date.
E. In addition to any other restriction provided by law, a liability insurer denying
coverage shall do the following:
(1) Within ninety days after the liability insurer makes a determination of the
existence of a coverage defense, but in no case later than thirty days before trial, provide
written notice of reservation of rights to assert a coverage defense to the named insured by
United States postal proof of mailing, registered or certified mail, or other similar tracking
method used or approved by the United States Postal Service or commercial courier sent to
the last known address of the insured or by hand delivery.
(2) Within sixty days of the later of compliance with Paragraph (1) of this Subsection
and after receipt or waiver of notice pursuant to Paragraph (D)(2) of this Section, but in no
case later than thirty days before trial, the insured shall give notice to all counsel of record
in a cause of action against the insured that a reservation of rights has been issued and also
give notice to its named insurer in the same manner as provided for in Paragraph (1) of this
Subsection that either:
(a) The insurer refuses to defend the insured.
(b) The insurer provides independent counsel at the expense of the insurer.
F. The legislature finds that the purpose of all liability policies is to provide
protection and coverage to all insureds, whether the insured is a named insured or an
additional insured under the omnibus clause, for all legal liability that the insured may have
within the terms and limits of the policy.
NOTE: Former R.S. 22:1269 redesignated as R.S. 22:443 by Acts 2008, No.
415, §1, eff. Jan. 1, 2009.

Legislative History

Acts 1958, No. 125. Amended by Act 1962, No. 471, §1; Acts 1988, No. 934, §1, eff. Jan. 1, 1989; Acts 1989, No. 117, §2; Acts 1992, No. 584, §1; Redesignated from R.S. 22:655 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009; Acts 2010, No. 703, §1, eff. Jan. 1, 2011; Acts 2024, No. 275, §1; Acts 2024, No. 595, §1; Acts 2024, No. 789, §2.