Opinion
No. 2000 CA 0036
February 16, 2001
APPEALED FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ASCENSION, STATE OF LOUISIANA NO. 65,001 HONORABLE PEGRAM J. MIRE, JR., JUDGE PRESIDING.
Leslie J. Schiff, Opelousas, LA, Counsel for Plaintiff/Appellee Richard Deshautelle.
James C. Percy, Baton Rouge, LA, Counsel for Defendant/Appellant US Agencies Casualty Insurance Company, Inc.
Van R. Mayhall, Jr., Christine Lipsey, David R. Kelly, Scott N. Hensgens, Baton Rouge, LA, Counsel for Defendant/Appellant, US Agencies Casualty Insurance Company, Inc.
BEFORE: WHIPPLE, KUHN AND DOWNING, JJ.
The instant suit is a "diminished value" class action concerning auto insurance policies that US Agencies Casualty Insurance Company (USA) issued to Richard "Joey" Deshautelle. The issues before this court on appeal involve the determination of proper venue for the class action lawsuit. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
This accident occurred in Ascension Parish and Deshautelle filed suit, as a class representative, in Ascension Parish. David Wright, Jr. filed a similar "diminished value" class action against USA in East Baton Rouge Parish. Wright then moved for, and was granted leave to intervene in the Deshautelle class action in Ascension Parish. Both Wright and Deshautelle are Plaintiff class representatives.
USA, prior to Wright's intervention, had filed a declinatory exception of improper venue arguing that East Baton Rouge Parish is the only parish of proper venue in accordance with the holding in Cacamo vs. Liberty Mutual Fire Insurance Company, 99-0047 (La.App. 4th Cir. 11/10/99), 746 So.2d 793, reversed, 99-3479 (La. 6/30/00), 764 So.2d 41, which held that the general venue provisions of LSA Code of Civil Procedure art. 42 control determinations of proper venue in this type of action. The trial court overruled the exception based on the conclusion that the relevant exception to the general venue statute (art. 76) applies to the class action venue statute (art. 593A).
DISCUSSION
Subsequent to the filing of the appeal, the Louisiana Supreme Court reversed the finding of the appellate court in Cacamo vs. Liberty Mutual Fire Insurance Company, 99-3479 (La. 6/30/00), 764 So.2d 41. The Supreme Court stated as follows:
The general rules for "proper venue as to the defendant" are found in La. Code Civ.P. art. 42, which sets forth the appropriate venue for actions against parties to a proceeding. Under La. Code Civ.P. art. 42(2), a suit against a domestic insurer such as Progressive must be brought in the parish where its registered office is located, in this case Jefferson Parish. Suits against foreign insurers, such as defendants Liberty Mutual and Allstate, must be brought in the Parish of East Baton Rouge. La. Code Civ.P. art. 42(7). However, La. Code Civ.P. art. 43 further provides that the general venue rules in article 42 are subject to the exceptions contained in La. Code Civ.P. arts. 71- 85 and as otherwise provided by law. In Kellis v. Farber, 523 So.2d 843 (La. 1988), we held that the plain meaning of art. 43 is that venues permitted in articles 71-85 and otherwise permitted by law may be used to supplement the general venue provisions of article 42 whenever venue under article 42 is appropriate. Our decision in Kellis as to the meaning of La. Code Civ.P. arts. 42 and 43 is controlling here. It has not been overruled. Accordingly, plaintiffs may choose any venue available under La. Code Civ. P. art. 42 or any other supplementary venue provided by law that fits the particular circumstances of their claims. We find nothing in the language of La. Code Civ.P. art. 593 to suggest a different result.Cacamo, 99-3479 at pp. 4-5, 764 So.2d 49.
The Louisiana Supreme Court held that plaintiffs in a class action may choose any venue available under the general venue article or any other supplementary venue provided by law that fits the particular circumstances of their claims. The court further held that insured in class action against their insurers were not limited to the specific venue choices of the general venue article, but could take advantage of supplementary venue articles found elsewhere in the Code of Civil Procedure and otherwise provided by law, specifically LSA-C.C.P. arts. 41, 42, 71- 85, 593. Accordingly, this action may be brought where the loss occurred or where the insured is domiciled.
Finding no error in the trial court's prescient and correct interpretation of the venue provisions of the Louisiana Code of Civil Procedure, the judgment of September 28, 1999 ruling is affirmed at appellant's cost.
AFFIRMED.
KUHN, J., concurs assigns reasons.
I concur in the result reached by the majority and make the following observations. I believe the time is ripe for the legislature to revisit the subject of class actions. Class action litigation was created to assist litigants by providing a procedurally effective means of disposing of multiple claims expeditiously and inexpensively. These goals are frequently frustrated. Forum selection, venue determinations, class certification, and other issues peculiar to class action suits, should be clearly, concisely, and directly addressed by the legislature to prevent abuse of the legal system and clogging of the courts potentially created by class actions. For these reasons, I respectfully concur.