Opinion
NO. 2013 CW 1167
10-28-2013
NATSHA McFARLAND, WIFE OF/AND JERAMAINE BUCKLEY, SR., INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, JA'NIYA BUCKLEY, JA'SHA BUCKLEY AND JERMAINE ANTHONY BUCKLEY, JR.; MARY McCRAY, WIFE OF/AND CLARENCE McCRAY v. ACE AMERICA INSURANCE COMPANY, CITY OF SLIDELL, SLIDELL POLICE DEPARTMENT AND JEFFREY KHARS
In Re: ACE America Insurance Company, applying for supervisory writs, 22nd Judicial District Court, Parish of St. Tammany, No. 2012-15773.
BEFORE: PAKRO, GUIDRY, AND DRAKE, JJ.
WRIT GRANTED. The trial court's April 30, 2013 judgment overruling the peremptory exception raising the objection of no right of action, filed by relator, ACE America Insurance Company, is reversed. According to the Direct Action Statute, La. R.S. 22:1269(B)(1), the plaintiffs may bring their action against the insurer alone, without also bringing an action against the insured, only when one of the circumstances enumerated in Section 1269(B)(1) exists. See Soileau v. Smith True Value and Rental, et al., 2012-1711 (La. 6/28/13), 2013 WL 3305265. By judgment dated February 11, 2013, the plaintiffs' claims against the insureds were dismissed, with prejudice, because they had prescribed. Since the plaintiffs can pursue this action only against the insurer and since none of the enumerated circumstances set forth in Section 1269(B)(1) exist in this case, we find that the trial court erred in overruling the peremptory exception of no right of action. Furthermore, we find that the arguments raised by relator support, additionally, a peremptory exception raising the objection of no cause of action, and we notice on our own motion that exception. See La. Code Civ. P. art. 927(B). Even if the direct action statute allows the plaintiffs to pursue an action against the insurer alone, it does not create an independent cause of action for the plaintiffs against the insurer; it merely grants a procedural right of action against the insurer where the plaintiffs have a substantive cause of action against the insured. Id. The plaintiffs' claims against the insureds have prescribed, and the plaintiffs have no independent substantive cause of action against the insurer. Accordingly, judgment is hereby rendered sustaining the peremptory exceptions raising the objections of no right of action and no cause of action, and the plaintiffs' claim against ACE America Insurance Company is dismissed, with prejudice.
RHP
JMG
EGD
COURT OF APPEAL, FIRST CIRCUIT ____________________________
DEPUTY CLERK OF COURT
FOR THE COURT