Cashio v. Encompass Ins. Co. of Am.

Full title: JASON CASHIO, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILDREN, DAVID…

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Sep 19, 2014

NUMBER 2014 CA 0255 (La. Ct. App. Sep. 19, 2014)

Opinion

NUMBER 2014 CA 0255

09-19-2014

JASON CASHIO, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILDREN, DAVID CASHIO, BION CASHIO AND CAROLINE CASHIO v. ENCOMPASS INSURANCE COMPANY OF AMERICA, ET AL

Scott G. Jones Raymon G. Jones Lawrence J. Boasso Mandeville, LA Counsel for Defendant/ First Appellant, Encompass Insurance Company of America Randall J. Cashio Baton Rouge, LA Counsel for Plaintiffs/ Second Appellants, Jason Cashio, Individually, and on behalf of his minor children, David Cashio, Bion Cashio, & Caroline Cashio

WHIPPLE, C.J.

NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge State of Louisiana
Docket Number 584,562

The Honorable Timothy E. Kelley, Judge Presiding

Scott G. Jones
Raymon G. Jones
Lawrence J. Boasso
Mandeville, LA
Counsel for Defendant/ First Appellant,
Encompass Insurance Company of
America
Randall J. Cashio
Baton Rouge, LA
Counsel for Plaintiffs/ Second
Appellants,
Jason Cashio, Individually, and on
behalf of his minor children, David
Cashio, Bion Cashio, & Caroline
Cashio

BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, J.J.

WHIPPLE, C.J.

This matter is before us on appeal by both the defendant, Encompass Insurance Company of America ("Encompass") and the plaintiffs, Jason Cashio, individually, and on behalf of his minor children, David Cashio, Bion Cashio, and Caroline Cashio (collectively referred to as "Cashio"), from a judgment of the trial court dismissing plaintiffs' claims. For the reasons that follow, we vacate the November 14, 2013 judgment, and we affirm in part and reverse in part the December 2, 2013 judgment.

FACTS AND PROCEDURAL HISTORY

On November 16, 2009, Cashio filed a petition for damages arising from an automobile accident that occurred in East Baton Rouge Parish. Therein, Cashio alleged that on November 30, 2008, he was proceeding west on Hyacinth Avenue with his minor children in the vehicle and was slowing down to make a left turn onto Cloverdale Avenue with his left turn signal on, when he was suddenly and violently struck from behind by a vehicle driven by Brent H. Struthers, III. Cashio named Struthers and his insurer, Encompass, as defendants, with instructions to serve Encompass, but to specifically "hold service" on Struthers.

Cashio subsequently filed a motion for partial summary judgment as to Struthers's liability in causing the accident and as to Encompass's liability, as Struthers's insurer, for the amount of any judgment rendered against Struthers, up to the amount of his policy limits. After hearing the matter, the trial court granted Cashio's motion for partial summary judgment as to liability by judgment dated November 14, 2013, as "prayed for."

The matter proceeded to trial before a jury on October 28, 2013. As a preliminary matter, counsel for Cashio informed the trial court that counsel for Encompass did not represent Struthers, who had not been served and who had never filed an answer in the matter. Thus, Cashio objected to counsel for Encompass stating to a jury or prospective jury that he represented Struthers. In light of the fact that Cashio had specifically requested that service be withheld on Struthers, counsel for Encompass orally moved that Struthers be dismissed as a party defendant for Cashio's failure to request service on him within ninety days pursuant to LSA-C.C.P. art. 1201.¹ Counsel for Encompass further sought dismissal of Cashio's claims against Encompass in the event that Cashio's claims against Struthers were dismissed. The trial court ordered that Cashio's claims against Struthers be dismissed due to their failure to timely request service of Struthers within ninety days.² The trial court then noted that the direct right of action against the insurer is a procedural right, not a substantive right, and reviewed the six circumstances enumerated in the Direct Action Statute, LSA-R.S. 22:1269(B)(1), under which an action may be brought against the insurer alone. After finding that none of these circumstances applied, the trial court concluded that since the insured "had not been made a party," the procedural right to sue the insurer did not ripen to a substantive right. Thus, the trial court also granted the motion for dismissal of Cashio's claims against Encompass. A judgment dismissing Cashio's claims against Struthers and Encompass without prejudice was signed by the trial court on December 2, 2013.

1 Louisiana Code of Civil Procedure article 1201(C) provides:

Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.

2 Although the trial court's ruling was incorrectly premised on the plaintiffs' failure to serve, the ultimate ruling is correct in that the record shows that Cashio failed to request service within ninety days as provided in LSA-C.C.P. art. 1201(C).

Cashio filed a motion for new trial, contending that the trial court erred in its interpretation of Louisiana's Direct Action Statute, LSA-R.S. 22:1269 and in its dismissal of Encompass. Encompass likewise filed a motion for new trial, contending that the trial court erred in granting the dismissals without prejudice. Upon the denial of the parties' respective motions for new trial, both Encompass and then Cashio filed motions to appeal the December 2, 2013 judgment of the trial court.

On appeal, neither party challenges the trial court's dismissal of Struthers. Instead, first appellant Encompass contends that the trial court erred: (1) in failing to dismiss all defendants with prejudice, where service on Struthers was intentionally withheld for the purpose of obtaining a perceived jury trial advantage by precluding reference to Struthers as a defendant in the case; and (2) in signing the November 14, 2013 judgment granting Cashio's motion for partial summary judgment as to the liability of Struthers, where Struthers was never served with citation and the petition in this case, and in signing a judgment on the motion for partial summary judgment after the October 28, 2013 ruling dismissing the case without prejudice. Second appellant Cashio contends on appeal that the trial court erred in its interpretation of Louisiana's Direct Action Statute, LSA-R.S. 22:1269, and in dismissing the insurer after the dismissal of the insured.

DISCUSSION

The Direct Action Statute

(Cashio's Assignment of Error)

For convenience, we will first address Cashio's contention that the trial court erred in interpreting the Louisiana Direct Action Statute, LSA-R.S. 22:1269, i.e., to conclude that an insurer must be dismissed if its insured is dismissed for failure to serve within ninety days after the suit is "brought."

Louisiana Revised Statute 22:1269 provides, in pertinent part, as follows:

B. (1) The injured person or his survivors or heirs mentioned in Subsection A of this Section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone,
or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only; however, such action may be brought against the insurer alone only when at least one of the following applies:



(a) The insured has been adjudged bankrupt by 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 cannot be made on the insured.



(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.



(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. (Emphasis added.)

The Direct Action Statute does not create an independent cause of action against the insurer; instead, it merely grants a procedural right of action against the insurer where the plaintiff has a substantive cause of action against the insured. Soileau v. Smith True Value and Rental, 2012-1711 (La. 6/28/13), ___ So. 3d ___, ___. A direct action may be brought against the insurer alone when one of the six enumerated circumstances set forth in LSA-R.S. 22:1269(B)(1)(a)-(f) applies. Soileau v. Smith True Value and Rental, ___ So. 3d at ___.

In this case, the trial court specifically recognized that the direct right of action against the insurer is a procedural right, not a substantive right. The trial court then stated that because it concluded that the insured had not been made a party, the procedural right to sue the insurer did not ripen to a substantive right. Thus, the issues presented for our review are whether, under the Louisiana Direct Action Statute, the naming of a defendant in a petition, without a request for service on the defendant, is sufficient to constitute the "bringing" of a suit against a defendant, so as to meet the requirements of LSA-R.S. 22:1269(B)(1); and, if so, where suit is "brought" against the insured and the insurer, and the insured is subsequently dismissed for failure to serve within ninety days because the plaintiff intentionally withheld service on the insured, whether the suit must also be dismissed against the insurer if none of the enumerated circumstances in LSA-R.S. 22:1269(B)(1)(a)-(f) apply so as to allow the plaintiff to proceed against the insurer alone.

Cashio contends that the trial court erred in dismissing Struthers's insurer, Encompass, after first dismissing its insured, Struthers, from the suit for failure to timely request service within ninety days of the filing of the petition pursuant to LSA-C.C.P. art. 1201(C). Although Cashio acknowledges the propriety of the trial court's dismissal of Struthers, Cashio contends that under LSA-R.S. 22:1269(B)(1), where the underlying action was "brought" against both Struthers and Encompass, and the insured was subsequently dismissed, it is legal error to also dismiss the insurer. Specifically, Cashio contends that, pursuant to LSA-C.C.P. art. 421, a civil action "is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction." (Emphasis added.) Cashio contends that LSA-C.C.P. art. 421 does not require service of the pleading, but merely the filing of a pleading. Thus, Cashio avers, he clearly "commenced" the underlying action against the insured, Struthers, and the insurer, Encompass, when he filed his petition for damages naming both as defendants.

In further support, Cashio relies on the recent Louisiana Supreme Court case of Soileau v. Smith True Value and Rental 2012-1711 (La. 6/28/13), ___ So. 3d ___. In Soileau, the plaintiff filed suit against Smith True Value and Rental ("True Value") and Hartford, its insurer. On the third day of trial, plaintiff's counsel orally moved to dismiss True Value, and the trial court granted the request. The next day, Hartford filed an exception of no right of action, contending therein that the Direct Action Statute required that the suit must be brought against both the insurer and its insured, and that the claims against both defendants must continue throughout the lawsuit. The trial court denied Hartford's exception and entered judgment in accordance with the jury's verdict for Soileau. The appellate court reversed the judgment of the trial court, granted the exception, and dismissed Hartford. Soileau v. Smith True Value and Rental, ___ So. 3d at ___.

On review, the Supreme Court examined the wording of Paragraph (B)(1) of the Direct Action Statute, which provides the plaintiff with the alternative of an action "brought" against the insurer alone or against both the insured and the insurer jointly and in solido. Utilizing the statutory rules of construction, the Supreme Court determined that in the Direct Action Statute, the legislature used the word "brought" as in "initially filed" or "commenced" and that in enumerating the six circumstances applicable to a direct action against an insurer alone, the legislature was clearly speaking only to a direct action commenced against the insurer alone. Soileau v. Smith True Value and Rental, ___ So. 3d at ___. (Emphasis added.) Thus, the Supreme Court reasoned that when an action is "brought" (i.e., commenced) against both the insured and the insurer, the six circumstances enumerated in LSA-R.S. 22:1269(B)(1)(a)-(f) are not implicated, regardless of whether the insured tortfeasor is thereafter dismissed. Soileau v. Smith True Value and Rental, ___ So. 3d at ___. The Supreme Court then reversed the judgment of the appellate court and concluded that Soileau could proceed against the insurer, Hartford, despite the dismissal of its insured, True Value.

The Supreme Court noted that the insureds had been active defendants in the lawsuit for over two years and that, along with their insurer, had previously entered into a "high/low" settlement agreement with the plaintiff. Soileau v. Smith True Value and Rental, ___ So. 3d at ___, n.5. Notably, however, the Supreme Court observed that while a question had been raised about the validity of an action commenced against both an insurer and its insured, during which the insured might be quickly dismissed, as for example, the next day, the Supreme Court declined to express an opinion about the validity of such an action since the facts and circumstances therein did not involve that scenario. Soileau v. Smith True Value and Rental, ___ So. 3d at ___, n.5. In doing so, the Supreme Court noted that it is possible that a case may arise, which is filed against both an insurer and its insured, which may not be in good faith, where the insured is quickly dismissed. After distinguishing such a scenario, the Supreme Court stated that "we leave for another day a ruling on such a scenario." Soileau v. Smith True Value and Rental, ___ So. 3d at ___, n.5.

In the instant case, although Cashio initially requested that service be withheld on Struthers and never requested that Struthers be served with the petition, the suit clearly was "brought" or "initially filed" against Struthers, who was a named defendant. Encompass was served and filed an answer to the petition. Struthers, who was not served, did not file an answer. Nonetheless, counsel for Encompass filed several discovery and preliminary pleadings on its behalf, as well as on behalf of its insured, Struthers.

Encompass contends that merely naming the insured as a defendant in the petition is insufficient to "bring" or "commence" an action against that party. Encompass contends that Cashio intentionally withheld service on Struthers for four years and that this failure to request service was part of a calculated litigation strategy, and that there is no showing that Struthers ever waived service, filed an answer, or made a general appearance herein. In support, Encompass points to remarks by counsel for Cashio before the trial court when the matter was called for trial, as follows:

MR. JONES: And, Scott Jones, your honor, on behalf of the defendant, Brent Struthers and Encompass.



MR. CASHIO: Your Honor, I'm glad he just said that. I would like to take that issue up. Mr. Jones does not represent Brent Struthers who was not served in this, he's not a party to this litigation and I might as well get to it now because I object to Mr. Jones using or stating to a jury or prospective jury that he represents Brent Struthers. He doesn't, he represents Encompass Insurance Company.




* * * * *



MR. JONES: ... It does not appear as though an answer was ever filed on behalf of Brent Struthers.



THE COURT: Okay.



MR. CASHIO: We specifically request[ed] to withhold service on Mr. Struthers, we never asked for service.




* * * * *



MR. CASHIO: They never filed an answer on his behalf. He was never served. No one's conferred jurisdiction. The court doesn't have jurisdiction over Mr. Struthers in this case. It's [sic] only can be and if someone responds on his behalf. No one has.




* * * * *



MR. CASHIO: The Direct Action Statute requires me to name Mr. Struthers as a defendant. It does not require me to have him served.



THE COURT: Well, but if all parties aren't joined, how can I go forward?



MR. CASHIO: That's the point. He's not. I have a direct action. By law I have a right to proceed against Encompass Insurance Company, it's a direct action against them.

* * * * *



MR. JONES: Once again, your Honor, the petition for damages ... states a cause of action against both the defendants, jointly, and [insolido], and they intentionally yes, they instructed the clerk to withhold service on Mr. Struthers. The Code of Procedure ... mandates that if a party is not served within 90 days after the filing of the petition and there's no cause shown from the non-service, in this instance since there is no cause shown, they apparently did it as matter of strategy so they could proceed against just an insurance company and not an individual also. That's not valid cause for requesting non-service on a party. There was no difficulty in obtaining service against him. In fact, he's a resident of this parish and this city. They could have served him at any time. They failed to serve him under the Code of Procedure. I'm moving to dismiss him as a party for failure to serve within the 90 day period.



MR. CASHIO: ... [A]s the court would recall, we filed a motion also for summary judgment, which this court has granted. The liability has already been determined. My point is, I don't want the jury to think that we are chasing poor Mr. Struthers, because we're not.

Encompass contends that Soileau is factually distinguishable from the facts of the instant case in that the Supreme Court in Soileau did not address a bad faith situation, as in the instant case, where, Encompass contends an intentional strategy was employed by plaintiffs to achieve a perceived legal advantage in a jury trial. Encompass further argues that Soileau is distinguishable in that Soileau involved a situation where the insured and the insurer had both been served and were active defendants in the case until all parties agreed to a settlement and dismissal during the trial. Moreover, Encompass points to footnote 5 of the Soileau opinion, where the Supreme Court specifically excluded from its ruling instances where suit is filed against an insured and its insurer that may not be in good faith and the insured is subsequently dismissed.

Applying the principles set forth in Soileau, as we are bound to do, we find that the instant suit naming Struthers as a defendant in these proceedings was "brought," as in "initially filed" or "commenced," within the requirements of the Direct Action Statute. See Soileau v. Smith True Value and Rental, ___ So. 3d at ___. As noted in Soileau, the United States Supreme Court has previously recognized that a suit is "brought" when, in law, it is "commenced," stating, "[W]e see no significance in the fact that in the legislation ... the word 'commenced' is sometimes used, and at other times the word 'brought.' In this connection the two words evidently mean the same thing, and are used interchangeably." Soileau v. Smith True Value and Rental, ___ So. 3d at ___, citing Goldberg v. Murphy, 108 U.S. 162, 163-164, 2 S. Ct. 388, 389, 27 L. Ed. 686 (1883). The Supreme Court further referenced the Black's Law Dictionary definition of "[b]ring suit," which states: "To 'bring' an action or suit has a settled customary meaning at law, and refers to the initiation of legal proceedings in a suit.... A suit is 'brought' at the time it is commenced..." Black's Law Dictionary 174 (5 ed. 1979). (Emphasis added.) See Soileau v. Smith True Value and Rental, ___ So. 3d at ___.

With regard to Encompass's allegations that Cashio's failure to request service when suit was filed was a matter of strategy so plaintiffs could proceed against an insurance company and not an individual and was in contravention of the statute, we look to the Louisiana Legislature's Civil Law and Procedure Committee meeting notes of June 13, 1988, wherein Alston Johnston addressed the committee in support of the bill that proposed the enactment of 1988 La. Acts, No. 934, the Direct Action Statute. As noted in Soileau, Johnston stated that the bill would not take away from anyone the right to sue an insurance company directly; that in most instances, if someone wanted to sue an insurance company directly, the party was obligated to name the insured along with the insurance company; that the party must name the real tortfeasor in the lawsuit; and that there are certain enumerated instances where it is not necessary to include the insured's name. Johnston further stated that the bill provided that the tortfeasor's name must be included when filing a lawsuit. He explained, "the purpose of the bill is to permit the trier of fact to see that there are two human beings involved, a plaintiff and an insured defendant, rather than just a victim and a company." See Soileau v. Smith True Value and Rental, ___ So. 3d at ___.

We also note Justice Weimer's concurrence in Soileau, which provides:

I agree with the majority's conclusion that the word "brought" in La. R.S. 22:1269(B)(1) means "initially filed" or "commenced." As the majority correctly notes, the word has attained a specific meaning in the legislation that has been accepted and honored by the jurisprudence. Moreover, as reflected in the majority's citation to the testimony before the House of Representatives' Civil Law and Procedure Committee, ascribing this generally prevailing meaning to the word is in accord with the legislative intent behind the 1988 amendment of the direct action statute. When a suit is "initially filed" against both an insurer and its insured, the purpose of La. R.S. 22:1269(B)(1) is achieved—the trier of fact is made aware, through the caption of the pleadings, that the case involves not just a plaintiff and a faceless insurance company, but also an insured. Thus, when, as occurred in this case, an insured originally named in a lawsuit along with the insurer is subsequently dismissed from the lawsuit, the provisions of La. R.S. 22:1269(B)(1)(a)-(f) are not invoked, and the plaintiff's right to proceed against the insurer alone is not affected.

Soileau v. Smith True Value and Rental, ___ So. 3d at ___. (Emphasis added.)

Because the suit undisputedly was initially "brought" by Cashio against the insured, Struthers, and the insurer, Encompass, within the meaning of the Direct Action Statute, the trial court erred in dismissing Encompass from these proceedings on the basis of Struthers's dismissal. Accordingly, we reverse the portion of the December 2, 2013 judgment dismissing Encompass from this litigation.

This assignment of error has merit.

Dismissal Without Prejudice

(Encompass's First Assignment of Error)

In its first assignment of error, Encompass contends that where Cashio initially withheld service on Struthers at the time of the filing of the petition and through the date of trial, Cashio acted in bad faith, warranting the dismissal of Struthers from this litigation with prejudice.

Louisiana Code of Civil Procedure article 1201(C) provides that service of the citation shall be requested on all named defendants within ninety days of commencement of the action. Louisiana Code of Civil Procedure article 1672(C) provides the penalty for failing to abide by the rules set forth in article 1201, as follows:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time. [Emphasis added.]

Although "good cause" is not defined in the article, Louisiana courts have strictly construed the "good cause" requirement. Jones v. Iberville Parish Council, 2012-0391 (La. App. 1^st Cir. 1/2/12), 111 So. 3d 83, 85.

Moreover, as set forth by Encompass in brief, when the legislature enacted LSA-C.C.P. art. 1672(C), by 1997 La. Acts, No. 518, it also enacted LSA-R.S. 9:5801, which provides a safeguard against a party who might consider the filing delays and utilize refilings, without effecting service, as a strategy. See Jacobs v. Louisiana Farm Bureau Insurance Companies, 2001-837 (La. App. 3^rd Cir. 12/19/01), 815 So. 2d 858, 861, writ denied, 2002-0193 (La. 3/28/02), 811 So. 2d 946.

Specifically, Encompass cites LSA-R.S. 9:5801, which provides as follows:

Notwithstanding the provisions of Civil Code Article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 3463, shall continue.

In further support of its argument that the dismissal should have been with prejudice, Encompass argues that in accordance with LSA-R.S. 9:5801, if service was not requested timely and that failure was a result of bad faith, there is no interruption of prescription as to a defendant dismissed due to the lack of timely service. Coker v. Morris, 37,688 (La. App. 2^nd Cir. 9/24/03), 855 So. 2d 916, 920, writ denied, 2003-2959 (La. 1/9/04), 862 So. 2d 993.

Thus, Encompass contends that Cashio has failed to establish any circumstances which would constitute "good cause" for its failure to request service. Encompass contends that Cashio's intentional failure to request service of Struthers was obviously in "bad faith" under LSA-R.S. 9:5801, and accordingly, prescription was not interrupted as to Struthers.

As further support, Encompass refers to the above cited colloquy between counsel and the court in Cashio's opening remarks to the trial court. Encompass argues that Cashio sought an order prohibiting counsel for Encompass from mentioning that it represented the insured, Struthers, in front of the jury, in order to force Encompass to appear only as a "faceless insurance company." Encompass contends that the "calculated legal strategy" employed herein, i.e., intentionally withholding service for almost four years to gain a tactical advantage before the jury, is precisely the type of strategy LSA-R.S. 9:5801 is intended to provide a safeguard against. Encompass contends that where, as in the instant case, a bad faith situation exists, interruption of prescription is never considered to have occurred. Thus, it argues the dismissal of Struthers should have been with prejudice.

Cashio counters that a finding of bad faith herein is not supported on this record or under Soileau, where Struthers made appearances of record and Encompass itself waited over three and a half years before requesting Struthers's dismissal. Moreover, Cashio contends the Coker and Jacobs cases relied upon by Encompass are inapplicable and not dispositive herein as neither case involved application of the Direct Action Statute and both cases pre-date the Supreme Court's pronouncements in Soileau. We agree.

The term "bad faith" means more than mere bad judgment or negligence; it implies the conscious doing of a wrong for dishonest or morally questionable motives. Coker v. Morris, 855 So. 2d at 920. Moreover, as recognized in the jurisprudence, the failure to show "good cause" under LSA-C.C.P. art. 1672(C) does not necessarily equate to a finding of "bad faith" under LSA-R.S. 9:5801. Coker v. Morris, 855 So. 2d at 919-920.

Although the trial court ordered the dismissal of Struthers after a finding that "good cause" had not been shown to explain why service was not requested, the trial court correctly ordered that the dismissal of Struthers be without prejudice. In sum, the trial court made no finding of bad faith. Applying the precepts set forth in Soileau above, Cashio "brought" suit against Struthers as contemplated under the Direct Action Statute. Further, neither the initial request to withhold service nor the failure to accomplish service on Struthers constitutes "bad faith." Thus, on review, we find no error in the trial court's decision to order the dismissal of Struthers without prejudice.

We find no merit to this assignment of error.

Partial Summary Judgment as to Liability

(Encompass's Second Assignment of Error)

In this assignment of error, Encompass contends that the trial court erred in signing the November 14, 2013 judgment granting Cashio's motion for partial summary judgment as to Struthers's liability where Struthers was never served with citation and the petition in this case.³

3 Although the November 14, 2013 judgment granting Cashio's motion for partial summary judgment as to liability did not contain a final judgment designation pursuant to LSA-C.C.P. art. 1915(B), when an unrestricted appeal is taken from a final judgment determinative of the merits, the appellant is generally entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. See Judson v. Davis, 2004-1699 (La. App. 1^st Cir. 6/29/05), 916 So. 1106, 1112, writ denied, 2005-1998 (La. 2/10/06), 924 So. 2d 167.

At the outset, we note that with reference to liability, Cashio's motion for partial summary judgment prayed for a judgment finding that: (1) defendant, Brent H. Struthers, is liable for the negligence of causing the truck that he was operating to collide with the rear of Jason Cashio's vehicle; and (2) defendant, Encompass Indemnity Company of America, is liable unto plaintiffs, for the amount of any judgment cast against Struthers up to the amount of its $500,000.00 policy limits. The November 14, 2013 judgment of the trial court states, "The Motion for Partial Summary Judgment as to the issue of liability is also GRANTED as prayed for."

A valid judgment must be precise, definite, and certain. Gaten v. Tangipahoa Parish School System, 2011-1133 (La. App. 1^st Cir. 3/23/12), 91 So. 3d 1073, 1074. A final appealable judgment must contain decretal language, and it must name 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. Gaten v. Tangipahoa Parish School System, 91 So. 3d at 1074. These determinations must be evident from the language of a judgment without reference to other documents in the record. Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1^st Cir. 12/20/02), 836 So. 2d 364, 366. A judgment cannot require reference to extrinsic documents or pleadings in order to discern the court's ruling. Vanderbrook v. Coachmen Industries, Inc., 2001-809 (La. App. 1^st Cir. 5/10/02), 818 So. 2d 906, 913.

In the instant case, it is unclear from the face of the judgment whether the granting of Cashio's motion for partial summary judgment "as to the issue of liability" ... "as prayed for" results in a finding of liability against Struthers, Encompass, or both. Thus, the portion of the judgment granting Cashio's motion for partial liability as to the "issue of liability" is ambiguous, lacks specificity, and lacks appropriate decretal language and should be vacated. See Jenkins v. Recovery Technology Investors, 2002-1788 (La. App. 1^st Cir. 6/27/03), 858 So. 2d 598, 600.

Moreover, to the extent that the trial court's judgment could be viewed as a judgment granting partial summary judgment on liability against Struthers, the judgment was improper as no citation and service of the petition was accomplished against Struthers in this matter.

Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children's Code. Without them all proceedings are absolutely null. LSA-C.C.P. art. 1201(A). Moreover, a judgment rendered against a defendant who has not been served with process and has not entered a general appearance is an absolute nullity and can be raised collaterally at any time. LSA-C.C.P. art. 2002(2); Allen v. Allen, 477 So. 2d 1135, 1136 (La. App. 5^th Cir. 1985); Succession of Griffith, 415 So. 2d 670, 673 (La. App. 4^th Cir. 1982); Smith v. Smith, 47,376 (La. App. 2^nd Cir. 8/22/12), 104 So. 2d 512, 515.

As the record reflects, Cashio specifically requested that citation and service on Struthers be withheld when the suit was filed. Moreover, no answer was filed on behalf of Struthers. Cashio argues that Struthers impliedly waived service by making appearances in the record, when Encompass filed discovery and preliminary pleadings on his behalf. We disagree and reject this contention. Louisiana Code of Civil Procedure article 1201(C) mandates that service of citation shall be requested on all named defendants within ninety days of commencement of the action and that a defendant may expressly waive that requirement by any written waiver. Filson v. Windsor Court Hotel, 2004-2893 (La. 6/29/05), 907 So. 2d 723, 729. However, the record contains no express written waiver whatsoever from Struthers.

Thus, to the extent that the November 14, 2013 judgment of the trial court granted Cashio's motion for partial summary judgment on liability as against Struthers, the judgment is a nullity and must be vacated. Finding merit to this assignment of error, we vacate the portion of the November 14, 2013 judgment of the trial court granting Cashio's motion for partial summary judgment on the liability against Struthers and remand for further proceedings.

CONCLUSION

For the above and foregoing reasons, the portion of the December 2, 2013 judgment of the trial court dismissing Encompass is reversed and the portion of the judgment dismissing Struthers is affirmed. The portion of the November 14, 2013 judgment of the trial court granting Cashio's motion for partial summary judgment as to liability is vacated. This matter is remanded to the trial court for further proceedings.

Costs of this appeal are assessed one-half each to first appellant, Encompass Insurance Company of America, and to second appellants, Jason Cashio, individually, and on behalf of his minor children, David Cashio, Bion Cashio, & Caroline Cashio.

DECEMBER 2, 2013 JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; NOVEMBER 14, 2013 JUDGMENT VACATED IN PART; AND REMANDED.

McCLENDON, J., concurs.

While I find this case to present one of the scenarios envisioned by the supreme court in footnote 5 of its decision in Soileau v. Smith True Value and Rental, 12-1711 (La. 6/28/13), ___ So.3d ___, ___, I believe that the holding in Soileau is controlling herein.

Further, as recognized by Justice Guidry in his dissent in Soileau, "the legislature could not have intended to allow a plaintiff to circumvent the direct action statute's requirements by filing an action against the insured and then, later, dismissing the insured." Similarly, in this case, I believe that the legislature did not intend to allow a plaintiff to circumvent the direct action's requirements by filing an action against the insured and then withholding service, with a later dismissal of the insured based on said failure to serve.

Additionally, with regard to the dismissal without prejudice, the clear and plain language of LSA-C.C.P. art. 1672C requires that dismissal of an action against a defendant for whom service has not been requested within the time prescribed shall be without prejudice. In this matter, there was no showing of good cause, and the trial court correctly dismissed the action without prejudice.

Accordingly, I must respectfully concur.