Opinion
21-C-722
02-10-2022
FAITH A. BOUDOIN v. SAFECO INSURANCE COMPANY OF OREGON, AMEX ASSURANCE COMPANY, ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, TERESA FUHRMAN, AND TRENT R. FURHMAN IN RE FAITH A. BOUDOIN
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SHAYNA BEEVERS MORVANT, DIVISION "M", NUMBER 759-719
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
WRIT DENIED
In this writ application, relator, Faith Boudoin, seeks supervisory review of the trial court's December 3, 2021 judgment denying her motion to file a third supplemental and amending petition (hereafter "motion to supplement") to assert a bad faith claim against her personal umbrella excess UM insurer, RLI Insurance Company. For the following reasons, finding no abuse of the trial court's vast discretion, we deny the writ application.
On May 13, 2015, relator was driving her own personal vehicle in the course and scope of her employment with Eatel Corporation, LLC/Sunshine Media ("Eatel") when she was rear-ended by a vehicle driven by Teresa Furhman. It is undisputed that relator was in the course and scope of her employment at the time of the accident. Relator allegedly suffered significant injuries necessitating two cervical surgeries and is currently disabled from working as a result of the accident.
At the time the accident, several insurance policies were in effect which provide coverage for the accident. According to the writ application, Progressive Insurance Company ("Progressive"), provided $15,000/$30,000 liability coverage to the tortfeasor, Teresa Fuhrman. Safeco Insurance Company ("Safeco") provided a $50,000/$100,000 liability policy to Trent Fuhrman. Relator's employer, Eatel, maintained an automobile policy with The Phoenix Insurance Company, a Travelers' company ("Travelers"), providing $1,000,000 in uninsured motorist/underinsured motorist ("UM/UIM") coverage; a commercial excess/umbrella policy with Rural Trust Insurance Company ("Rural Trust"), providing $10,000,000 in coverage; and a third party liability policy with Continental Casualty Company ("CNA"), with limits of $25,000,000. Relator maintained a personal liability policy with Allstate Insurance Company ("Allstate"), which provided $250,000 in UM/UIM coverage, and a personal umbrella policy with RLI Insurance Company ("RLI"), which provided $1,000,000 in excess UM/UIM coverage.
Relator contends that just prior to the instant accident, Ms. Fuhrman totaled her own car and that her son, Trent Fuhrman, at the direction of her husband, Bob Fuhrman, rented the car she was driving at the time of the accident herein.
To date, Rural Trust and CNA have produced no UM/UIM waiver/rejection form relative to these policies.
Relator originally filed suit on April 12, 2016, against Safeco, AMEX Assurance Company, Allstate, Teresa Furhman, and Trent Furhman, seeking damages for the injuries she sustained in the accident. On July 27, 2016, relator was granted leave of court to file her first supplemental and amending petition to add Progressive as a defendant. Relator was again granted leave on October 12, 2016, to file her second supplemental and amending petition to name RLI as a defendant. All named defendants filed responsive pleadings, and discovery proceeded.
Three years later in 2019, relator underwent her first cervical surgery allegedly as a result of the injuries she sustained in the accident. Thereafter, on May 11, 2020, she submitted a demand letter to her personal UM/UIM carrier, Allstate, and her personal umbrella excess UM/UIM insurer, RLI. While Allstate tendered its policy limits plus interest at that time, RLI requested additional discovery and iterated that, even though Travelers had not yet been made a defendant, Travelers' $1,000,000 UM policy preceded RLI's excess umbrella policy. Relator refused RLI's request to allow any additional discovery until Travelers was made a defendant, however, relator took no action to add Travelers. In the meantime, relator underwent a second cervical surgery in June 2021.
In an effort to move the matter forward, Progressive sought to set the case for trial and establish cut-off dates. In this regard, a Zoom status conference was held with the court on June 21, 2021. During that conference, the parties apparently discussed that additional discovery needed to be conducted, and the fact that relator would not agree to such discovery until Travelers was made a party, but had done nothing yet to add Travelers. Consequently, the trial court issued a Scheduling Order, which established an August 13, 2021 deadline "to add additional parties."
Following the status conference, on June 28, 2021, relator made a second demand upon RLI to tender its policy limits, plus interest, advising of relator's second surgery and evaluating her damages at $3,552,686.10. In that letter, relator stated, "Clearly, the value of [relator's] case exceeds (Eatel) Travelers' UM policy and all other underlying coverage," suggesting that relator realized that Travelers' UM policy actually primed RLI's. In response, RLI advised relator that it had discovered additional excess UIM policies issued to Eatel (i.e., Rural Life and CNA policies) that potentially provided coverage for her injuries, which raised issues regarding priority of coverage. Additionally, RLI noted that it had learned that relator had scheduled mediation with Travelers-who had apparently acknowledged that its coverage was primary to RLI's excess UM coverage-and requested to participate. Relator, however, refused to allow RLI to participate, but later settled with Travelers for $865,000-$135,000 less than its policy limits.
According to RLI, its policy contains a provision that states: "This insurance does not apply until after exhaustion of all other collectible insurance and/or other protection available to the insured. …[including] [t]he basic policies, personal and commercial automobile insurance, employer's insurance …"
On August 11, 2021, relator filed a motion for leave to file the third supplemental and amending petition seeking to add Bob Furhman, The Phoenix Insurance Company ("Travelers"), Rural Trust, and CNA as additional defendants, which is the motion that is the subject of the instant writ application. In the supplemental petition, relator also sought to add an additional claim of bad faith against RLI on grounds that it was "provided satisfactory proof of loss and failed to timely tender UM benefits." RLI opposed the motion contending that it violated the scheduling order (which provided for the addition of parties not claims against existing parties), was prejudicial to RLI, and was futile. Specifically, RLI set forth, what it believed to be, the proper ranking of the policies, arguing that relator's damages would have to exceed $36,000,000 (the total of coverage afforded by her employer's insurers) before coverage under RLI's personal umbrella excess UM policy would be triggered. Having evaluated her own claim at $3,552,686.10, RLI argued that relator would not be able to establish that RLI acted in bad faith for failing to tender its policy limits.
A contradictory hearing on relator's motion for leave to supplement was held on October 13, 2021. Though the substantive issues of stacking and ranking were discussed, at the close of the hearing, the trial judge denied relator's motion on other grounds, stating, in pertinent part:
To me a deadline is a deadline … and looking at the entire record, this being within the discretion of the Court, the Court does find that this case was originally filed on April 8th of 2016. There was a second supplemental amended petition on October 12th, 2016, to add RLI. I do find it would be prejudicial to RLI at this point to add an additional claim against them years later after the parties have settled out. They're stuck with where they are, and I find adding an additional cause of action specifically against them, with respect to that, I think is going to be prejudicial. I also do find that the Court did specifically say the amended pleading deadline was to add additional parties. It did not include additional claims against parties already in the case or that had been in the case for, at this point, four years. And for that reason, the Court will deny the Motion for Leave to File the Third Supplemental and Amending Petition only as to the bad faith claim against RLI. In all other respects, the Court will grant the motion, because I do know it added another party, other things. So in all
other respects, it is granted, but, with respect to RLI specifically, it is denied.
In her writ application, relator argues that because RLI failed to show that she was acting in bad faith, was using the amendment as a delaying tactic, that RLI would be prejudiced by the amendment, or that the trial would be unduly delayed, the trial court abused its vast discretion in denying her motion to file a third supplemental and amending petition. Additionally, relator contends the trial court erroneously "made a merits decision that [she] was not entitled to a timely evaluation and tender of UM benefits from RLI," which is improper "when ruling on a motion for leave to even bring claims in the first instance."
A review of the transcript of the hearing indicates that the trial judge determined that RLI would, indeed, be prejudiced by a bad faith claim brought nearly five years after the original suit had been filed against it, and that such a claim "is going to extend this a lot longer and stop anything from ever moving to trial." There is no indication on the record that the trial court's ruling was based on "a merits decision."
La. C.C.P. art. 1151 provides that after an answer has been filed, the petition and answer may be amended only by leave of court or by written consent of the adverse party. The decision to disallow an amendment under La. C.C.P. art. 1151 is within the sound discretion of the trial judge, and the judge's ruling will not be disturbed on appeal unless there has been an abuse of the broad discretion vested in the trial court. Banks v. Parish of Jefferson, 12-215 (La.App. 5 Cir. 1/30/13), 108 So.3d 1208, 1216. On the showing made, finding no abuse of discretion by the trial court, we see no reason to disturb the trial court's judgment at this time. This writ application is denied.
SMC
FHW
JGG