Opinion
11-272
10-05-2011
DAVID L. WILLIS, ET UX v. GULF COAST BUILDING SUPPLY, ET AL.
R. Scott Iles Attorney at Law Counsel for Plaintiffs/Appellants: Karen Brown David Frick David L. Willis Deborah A. Willis Elvin C. Fontenot, Jr. Attorney at Law Counsel for Plaintiffs/Appellants: David L. Willis Deborah A. Willis Steven W. Harris Attorney at Law Counsel for Plaintiffs/Appellants: Karen Brown David Frick Doris T. Bobadilla Andrea L. Albert Galloway, Johnson, Tompkins, Burr & Smith Counsel for Defendant/Appellee: Universal Underwriters of Texas Insurance Company
NOT DESIGNATED FOR PUBLICATION
consolidated with 11-273 and 11-274
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 75,991
HONORABLE JOHN C. FORD, DISTRICT JUDGE
PHYLLIS M. KEATY
JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Phyllis M. Keaty, Judges.
AFFIRMED.
R. Scott Iles
Attorney at Law
Counsel for Plaintiffs/Appellants:
Karen Brown
David Frick
David L. Willis
Deborah A. Willis
Elvin C. Fontenot, Jr.
Attorney at Law
Counsel for Plaintiffs/Appellants:
David L. Willis
Deborah A. Willis
Steven W. Harris
Attorney at Law
Counsel for Plaintiffs/Appellants:
Karen Brown
David Frick
Doris T. Bobadilla
Andrea L. Albert
Galloway, Johnson, Tompkins,
Burr & Smith
Counsel for Defendant/Appellee:
Universal Underwriters of Texas Insurance Company
KEATY , Judge.
In this consolidated action, David Willis, Donna Willis, Karen Brown, and David Frick, (the plaintiffs), appeal the grant of summary judgment in favor of the defendant, Universal Underwriters of Texas Insurance Company (UUT). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
These actions were filed as a result of an automobile accident that occurred on November 7, 2005, when a tractor trailer operated by Steve Frank Coronado (Coronado), in the course and scope of his employment with Gulf Coast Building Supply (Gulf Coast), struck multiple vehicles. Six cases were brought by various plaintiffs naming as defendants Coronado, Gulf Coast, and Home State County Mutual Insurance Company (Home State), the insurer of Gulf Coast. The plaintiffs later amended their petitions to name UUT as a defendant, asserting that it provided supplemental and excess insurance to Coronado and Gulf Coast above and beyond the liability insurance coverage provided by Home State. Thereafter, Home State paid its policy limits, together with judicial interest, to the various plaintiffs, thereby exhausting its limits of coverage.
The Home State policy had coverage limits of $1,000,000.
UUT filed a motion for summary judgment seeking to have the plaintiffs' claims dismissed because its policy excluded coverage for their claims. According to UUT, the tractor trailer that Coronado was driving at the time of the accident was leased to Gulf Coast by Olympic International Trucks, Inc. d/b/a Olympic Ideal Lease (Olympic). The lease agreement specified that Gulf Coast was responsible for providing liability insurance and that Gulf Coast would name Olympic as an additional insured on its policy. UUT had issued a policy of insurance to Olympic, but Gulf Coast and Coronado were not named insureds on the policy. Moreover, no provision in the policy extended coverage to lessees of the named insured's property. The UUT policy excluded coverage for vehicles leased to another for which there is valid and collectable insurance obtained pursuant to the lease agreement and excluded from coverage parties covered by primary liability insurance purchased by the lessee pursuant to a written lease agreement. Finally, the lease provided that Gulf Coast would indemnify Olympic for any claims in excess of its primary insurance limits. UUT submitted that the lease required Gulf Coast to provide liability insurance and that Home State provided valid and collectible insurance to cover the plaintiffs' claims. Accordingly, UUT argued that its policy excluded coverage for the plaintiffs' claims and that those claims should be dismissed with prejudice.
The plaintiffs have not made any claims against Olympic.
UUT attached to its motion copies of the lease agreement and the UUT insurance policy. In addition, UUT directed the trial court's attention to a decision rendered in a case arising out of the same accident as that involving the plaintiffs that had been filed in federal court on behalf of Danny Kirk. In that matter, the federal court granted summary judgment in favor of UUT and dismissed Kirk's case against it on the basis that the UUT policy did not provide coverage for his claims. That decision was affirmed by the U.S. Court of Appeals, Fifth Circuit.
See, Kirk v. Gulf Coast Bldg. Supply, a memorandum ruling bearing civil action number 2:06-CV-1528 (W.D. La. 3/6/08) (hereafter referred to as Kirk I).
See, Kirk v. Universal Underwriters of Texas Ins. Co. , an unpublished opinion bearing docket number 09-30299 (U.S. 5 Cir. 1/7/10) (hereafter referred to as Kirk II).
The plaintiffs opposed UUT's motion, asserting that the arguments made therein had previously been heard in the context of a peremptory exception of no right of action filed by UUT which the trial court denied. Because this court denied writs regarding that ruling, as did the supreme court, the plaintiffs argued that the law of the case doctrine should operate to preclude UUT from relitigating those same arguments. The plaintiffs also submitted that Kirk I and Kirk II had no precedential value in this state court action.
See, Craig v. Universal Underwriters of Texas Ins. Co. , an unpublished writ bearing docket number 09-103 (La.App. 3 Cir. 4/28/09), (panel of this court denied writs declaring, "We find no error in the trial court's ruling."); Craig v. Universal Underwriters of Texas Ins. Co., 09-159 (La. 9/18/09), 17 So.3d 973.
UUT filed a reply to the plaintiffs' opposition contending that the exceptions previously heard by the trial court dealt with procedural, rather than substantive, matters. According to UUT, the plaintiffs raised the issue of coverage in opposition to its exceptions, and the trial court commented on those issues, but those issues were not properly before the court at the hearing on the exceptions. UUT submitted that rulings on exceptions are interlocutory in nature and subject to revision by the trial court at any time prior to rendition of final judgment. Thus, the trial court was in no way bound by its earlier comments concerning coverage.
In addition to the exception of no right of action, UUT also filed exceptions of no cause of action, prescription, and insufficiency of service of process.
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UUT's motion was heard on April 8, 2010, and the matter was taken under advisement. Written judgment was rendered on August 11, 2010, granting summary judgment in favor of UUT and dismissing all of the plaintiffs' claims against it based upon the trial court's finding that there was no coverage under the UUT policy.
The plaintiffs now appeal, asserting in their sole assignment of error that the trial court erred in granting UUT's motion for summary judgment because UUT's arguments had previously been heard and rejected in an earlier asserted peremptory exception of no cause of action; thus, the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT.
APPLICABLE LAW
Summary judgment is a procedural tool "designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2). If the motion for summary judgment and supporting affidavits show that there is no genuine issue of material fact, the mover is entitled to a judgment as a matter of law. La.Code Civ.P. art. 966(B). "On appeal, summary judgments are reviewed de novo. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate." Richard v. Brasseaux, 10-409, pp. 2-3 (La.App. 3 Cir. 11/3/10), 50 So.3d 282, 285, writ denied, 10-2673 (La. 1/28/11), 56 So.3d 959 (citation omitted).
Judgments are either interlocutory or final. La.Code Civ.P. art. 1841. "A judgment that determines the merits in whole or in part is a final judgment." Id. On the other hand, "[a] judgment that does not determine the merits but only preliminary matters" is an interlocutory judgment. Id. Final judgments are generally appealable, whereas interlocutory judgments are appealable "only when expressly provided by law." La.Code Civ.P. art. 2083.
When a court renders a decision that adjudicates fewer than all the claims of fewer than all the parties, that decision is not a final judgment unless it is so designated by the court after it expressly determines that there is no reason for delay. La.Code Civ.P. art. 1915(B). If the partial decision is not designated as final, it "may be revised at any time prior to rendition of the judgment adjudicating all the claims . . . of all the parties." Id.
In Davis v. Jazz Casino Co., L.L.C., 03-276, p. 1 (La. 6/6/03), 849 So.2d 497, 498, the supreme court stated in a per curiam opinion:
The court of appeal erred in holding its earlier writ denial resolved the issue presented on appeal. In Bulot v. Intracoastal Tubular Services., Inc., 02-1035 (La. 6/14/02), 817 So.2d 1149, we held that once a court of appeal declines to exercise its supervisory jurisdiction by denying the writ, the court was without jurisdiction to affirm, reverse or modify the judgment of the trial court. Thus, any language in the court of appeal's earlier writ denial purporting to find no error in the trial court's . . . ruling is without effect.
This court discussed the law of the case doctrine in Juneau v. State, 06-1653, p. 6 (La.App. 3 Cir. 5/2/07), 956 So.2d 728, 733, writ denied, 07-1177, (La. 9/14/07), 963 So.2d 1004, noting:
Justice Tate of the Louisiana Supreme Court in Petition of Sewerage & Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973), wrote:
The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue.
Nevertheless, the law of the case principle is applied merely as a discretionary guide . . . .
DISCUSSION
After performing a de novo review, we conclude that UUT met its burden of proving that the policy it issued to Olympic did not provide coverage for the plaintiffs' claims. The tractor trailer being driven by Coronado was a vehicle leased from Olympic. The policy of insurance issued to Olympic by UUT excluded coverage for leased vehicles. Accordingly, the burden shifted to the plaintiffs to show that they could be able to prove at trial that the UUT policy did, in fact, provide coverage for their claims. Rather than attack UUT's motion on the merits, the plaintiffs argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling.
UUT filed its exceptions more than one and one-half years before it filed its motion for summary judgment. The exceptions were not based upon any provisions in the UUT policy, and UUT did not raise the issue of coverage. In its exception of prescription, UUT argued that the plaintiffs' claims against it were prescribed because it was not a solidarily-liable defendant. UUT's exception of no right of action was based upon Louisiana's direct action statute and the fact that Olympic, its insured, had not been made a defendant. Finally, UUT argued in its exception of no cause of action that the plaintiffs had failed to name as a defendant any insured under the policy. UUT submits that it attached a copy of the Olympic policy to its exception simply to show who the named insureds were under the policy. Regardless, the trial court's prior denial of UUT's exceptions was an interlocutory ruling that the trial court was at liberty to revisit and revise. See La.Code Civ.P. art. 1915(B)(2). Moreover, the writ denials issued by this court and the supreme court with regard to that ruling carry no precedential value. See Davis, 849 So.2d 497, and Bulot, 817 So.2d 1149.
We reject the plaintiffs' claim that the law of the case doctrine is applicable to the matter before us. UUT did not raise coverage issues when it filed its exceptions in the trial court in 2008. Instead, the plaintiffs brought up the issue of coverage in their opposition to UUT's exceptions. According to UUT, it did not learn of the plaintiffs' opposition until the day of the hearing on its exceptions and it did not receive a copy of the opposition until the day after the hearing. UUT objected to the plaintiffs' right to oral argument, but the trial court overruled its objection. The plaintiffs do not dispute these facts. Clearly, the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions, and UUT was unable to properly prepare for the plaintiffs' opposition which contained arguments concerning coverage. The issues raised in the motion for summary judgment filed by UUT in 2010 did not cause "indefinite relitigation of the same issue[s]" as were raised in its 2008 exceptions and precluding UUT from bringing its motion for summary judgment would not offer "essential fairness to both sides" of this dispute. Juneau, 956 So.2d at 733. The trial court did not err in refusing to apply the discretionary law of the case doctrine to this matter. Accordingly, we affirm the trial court's grant of summary judgment in favor of UUT and the resulting dismissal of the plaintiffs' claims against it with prejudice.
DECREE
For the forgoing reasons, we affirm the trial court's grant of summary judgment in favor of Universal Underwriters of Texas Insurance Company. All costs of this appeal are assessed against David Willis, Donna Willis, Karen Brown, and David Frick.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2-16.3.