Opinion
NO. 19-C-531 C/W 19-C-532
02-07-2020
STEPHEN RODRIGUEZ v. PROGRESSIVE PALOVERDE INSURANCE COMPANY, FIREMAN'S FUND INSURANCE COMPANY, VILLALOBOS DOG RESCUE, PETS IN THE HOOD INC., BLUE 44 PRODUCTIONS, INC., AND USAA CASUALTY INSURANCE COMPANY C/W STEPHEN RODRIGUEZ v. PROGRESSIVE PALOVERDE INSURANCE COMPANY, FIREMAN'S FUND INSURANCE COMPANY, VILLALOBOS DOG RESCUE, PETS IN THE HOOD, INC., BLUE 44 PRODUCTIONS, AND USAA CASUALTY INSURANCE COMPANY
Curtis B Pursell Clerk Of Court IN RE FIREMAN'S FUND INSURANCE COMPANY AND 44 BLUE PRODUCTIONS, LLC APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE MICHAEL P. MENTZ, DIVISION "F", NUMBER 778-273 Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
WRIT GRANTED FOR THE LIMITED PURPOSE OF REMANDING THE MATTER TO THE TRIAL COURT
Relators, 44 Blue Productions, LLC ("44 Blue"), Fireman's Fund Ins. Co. ("FFIC"), and USAA Casualty Ins. Co. ("USAA") seek review of the district court's July 15, 2019 judgment granting Respondent Progressive Paloverde Insurance Company's ("Progressive") motion for summary judgment and September 24, 2019 judgment denying Relators' 44 Blue and FFIC's motion for a new trial. For the reasons below, we grant the writ applications for the limited purpose of remanding the matter to the trial court.
This case arises out of a five-car accident that occurred on Interstate 10 in Kenner, Louisiana on December 16, 2016. Jennifer Doher, an employee of Villalobos Dog Rescue, Pets in the Hood Inc. ("Villalobos") was operating a van rented from Enterprise Rental Company when she rear-ended the car in front of her and caused the vehicle she hit and two other vehicles to collide into the vehicles in front of them. The owner of Villalobos, Tia Torres, was listed as the driver. Stephen Rodriguez, the driver of the fifth car involved in the accident, filed a petition for damages against his own automobile insurance provider, USAA and Villalobos and 44 Blue and their respective automobile insurance providers Progressive and FFIC.
Progressive filed a motion for summary judgment alleging that the rental vehicle was not covered by the policy issued to Villalobos because all of the vehicles listed under the policy were in working order and La. R.S. 22:1296 did not apply because Villalobos did not rent the vehicle. Progressive's motion for summary judgment was heard on July 15, 2019. The trial court granted the motion and the judgment issued that same day dismissed the case against Progressive with prejudice, each party to bear its own costs. Pursuant to La. C.C.P. art. 1915, the trial court designated the judgment as a final judgment, making an express determination that there was "no just reason for delay." Defendants 44 Blue and FFIC filed Motion for Written Reasons for Judgment also on July 15, 2019. The trial court issued Reasons for Judgment on July 29, 2019, which only "adopt[ed] and incorporate[d] the reasons orally assigned in the official transcript as transcribed" by the court reporter.
44 Blue and FFIC then filed a Motion for New Trial on July 22, 2019. At the September 24, 2019 hearing on the matter, the trial court denied that motion. Two days later, Relators 44 Blue and FFIC filed a Notice of Intent to Apply Supervisory Writ from the Judgment of the Trial Court Denying Defendants' Motion for New Trial. On October 18, 2019, Relators USAA filed a notice of intent to take a writ from the trial court's judgment denying 44 Blue and FFIC's motion for new trial also. The writ applications were consolidated as all relators assert that the trial court improperly weighed the evidence in order to find in favor of Progressive and grant their motion for summary judgment, and that the denial of the motion for new trial is reversible error.
Upon review of the consolidated writ applications, it appears that Relators actually intend to seek review of the July 15, 2019 trial court judgment granting summary judgment to Progressive, which dismissed Plaintiff's claims against Progressive with prejudice, each party to bear their own costs. However, Relators did not appeal that judgment. Louisiana Code of Civil Procedure article 1915 authorizes the immediate appeal of partial final judgments, including partial summary judgments, when the judgment dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors, or grants a motion for summary judgment, as provided by Articles 966 through 969. Mary Duplantis and Randolph Duplantis v. Cadillac Fairview Shopping Center Properties (Louisiana) Inc., et al., 04-285 (La. App. 5 Cir. 3/15/04) (unpublished writ disposition). A partial judgment under paragraph (A) of Article 1915 is immediately appealable without a court designation to that effect, except for a partial summary judgment rendered pursuant to LSA-C.C.P. art. 966(E) . Id. However, the trial court designated its July 15, 2019 ruling as a final and appealable judgment with an express determination that there is no just reason for delay pursuant to La. C.C.P. art 1915(B). Per La. C.C.P. arts. 1914 and 2087, Relators had until November 25, 2019 to take a devolutive appeal.
A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. La. C.C.P. art. 966
Sixty days from mailing of judgment was actually Saturday, November 23, 2019. La. C.C.P. art. 1914 says the clerk shall mail notice regardless of whether the motion is taken under advisement, but according to annotated September 24, 2019 judgment on JeffNet all parties waived service. --------
Based on the foregoing, review of the July 15, 2019 judgment in favor of Progressive properly occurs pursuant to this Court's appellate jurisdiction. Therefore, we grant the writ application for the limited purpose of remanding the matter to the trial court with instructions to consider Relators' Notices of Intent to File for Supervisory Writs as motions for appeal, and for further proceedings consistent therewith.
Gretna, Louisiana, this 7th day of February, 2020.