Lamarque v. Mass. Indem. Life Ins. Co.

Full title: RONALD LAMARQUE AND LAMARQUE FORD, INC., PLAINTIFFS-APPELLEES, v…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jul 14, 1986

794 F.2d 197 (5th Cir. 1986)

Opinion

No. 85-3547.

July 14, 1986.

Francis G. Weller, New Orleans, for Massachusetts Indem. Life Ins. Co.

Ellis B. Murov, Donald R. Mintz, New Orleans, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, and HIGGINBOTHAM, Circuit Judges, and HARVEY^_, District Judge.

_ District Judge for the Eastern District of Michigan, sitting by designation.

GEE, Circuit Judge:

The facts of this case are set out in the companion appeal, Lamarque v. Massachusetts Indemnity Life Insurance Company, 794 F.2d 194. In that appeal we affirmed the district court's grant of a partial summary judgment in favor of the defendant. This appeal stems from the district court's denial of the defendant's motion for summary judgment as to the plaintiffs' claim under the Louisiana Unfair Trade Practices and Consumer Protection Law (LUTP), La.Rev.Stat. 51:1401 et seq. (West Annot. Supplement 1986). The district court granted leave pursuant to 28 U.S.C. § 1292 for the defendant to apply to us for an interlocutory appeal of the decision. We granted the application.

Section 1406 of the LUTP provides:

The provisions of this chapter shall not apply to:

(1) Actions or transactions subject to the jurisdiction of the Louisiana Public Service Commission or other public utility regulatory body, the state bank commissioner, and the insurance commissioner. . . .

MILICO argues that the LUTP is not applicable because the Louisiana Insurance Code empowers the insurance commissioner to take action against any insurer which engages in unfair trade practices by violating "any prohibitory law of this state," La.Rev.Stat. 22:1214(12), and that Section 1405(A) of the LUTP¹ is just such a prohibitory law.

1 La.Rev.Stat. 51:1405(A) Provides: Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

We disagree. If the provisions of LUTP aren't applicable to claims within the jurisdiction of the insurance commissioner, the LUTP can hardly be used to create jurisdiction on the insurance commissioner's part.

The district court did not err in denying the motion for summary judgment on this ground. However, because the district court has not considered the other grounds for the defendant's motion, we decline to do so and accordingly REMAND this matter to the district court.