Opinion
2022 CA 0480 2022 CA 0481 2022 CA 0482 2022 CA 0483
11-04-2022
JASON MYERS v. HOUSTON SPECIALTY INSURANCE COMPANY, ET AL. AMBER IDLEMAN FB/O AND/OR OB/O KAIDEN COLE JACKSON v. DENISE JONES, USA INSURANCE CO., HOUSTON SPECIALTY INS. CO., AND DONALD BUSH THOMAS BUSH, JR. v. USA INSURANCE COMPANY, DENISE D. JONES, DONALD R. BUSH, HOUSTON SPECIALTY INSURANCE COMPANY, ANDREA HELD, AND AJ GALLAGHER RISK MANAGEMENT SERVICES, INC. DONALD BUSH v. DENISE JONES AND USA INSURANCE COMPANY
Scott A. Dartez Maurice, LA Counsel for Plaintiff/Appellant, Jason Myers Christoper A. D' Amour Alexandra R. Lamb New Orleans, LA Counsel for Defendants/Appellees, Andrea Helo, Jacob Crawford, and Arthur J. Gallagher Risk Management Services, Inc. Denia S. Aiyegbusi Casey B. Wendling New Orleans, LA Counsel for Defendants, Denise Jones and USA Insurance Company James T. Rivera Jessica W. Marchand Lafayette, LA Lafayette, LA Counsel for Defendant, Houston Specialty Insurance Company Brent P. Frederick Michael T. Beckers Danielle N. Goren Baton Rouge, LA and Michael G. Gee Mallory F. Maddocks Kaitlyn E. Bourg Thibodaux, LA Counsel for Defendant, Donald Bush Seth A. Schmeeckle Kristopher M. Redmann New Orleans, LA Counsel for Defendant, Evanston Insurance Company Mark G. Artall Lafayette, LA Counsel for Plaintiff, Thomas Bush, Jr.
NOT DESIGNATED FOR PUBLICATION
Appealed from the Thirty -Second Judicial District Court in and for the Parish of Terrebonne State of Louisiana Docket Number 188467 c/w 188533 c/w 188669 c/w 188987 Honorable Timothy C. Ellender, Jr., Judge Presiding
Scott A. Dartez Maurice, LA Counsel for Plaintiff/Appellant, Jason Myers
Christoper A. D' Amour Alexandra R. Lamb New Orleans, LA Counsel for Defendants/Appellees, Andrea Helo, Jacob Crawford, and Arthur J. Gallagher Risk Management Services, Inc.
Denia S. Aiyegbusi Casey B. Wendling New Orleans, LA Counsel for Defendants, Denise Jones and USA Insurance Company
James T. Rivera Jessica W. Marchand Lafayette, LA Lafayette, LA Counsel for Defendant, Houston Specialty Insurance Company
Brent P. Frederick Michael T. Beckers Danielle N. Goren Baton Rouge, LA and Michael G. Gee Mallory F. Maddocks Kaitlyn E. Bourg Thibodaux, LA Counsel for Defendant, Donald Bush
Seth A. Schmeeckle Kristopher M. Redmann New Orleans, LA Counsel for Defendant, Evanston Insurance Company
Mark G. Artall Lafayette, LA Counsel for Plaintiff, Thomas Bush, Jr.
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
WHIPPLE, C J.
In this personal injury action, plaintiff, Jason Myers, appeals the August 9, 2021 judgment of the Thirty-second Judicial District Court, granting the peremptory exception raising the objection of no right of action filed by defendants Arthur J. Gallagher Risk Management Services, Inc., Andrea Helo, and Jacob Crawford and dismissing with prejudice his claims against those defendants. For the following reasons, we affirm as amended and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On March 19, 2020, Myers filed a petition seeking damages for personal injuries he allegedly sustained in an automobile accident that occurred on April 11, 2019, on Louisiana Highway 24 in Terrebonne Parish, involving a Ford F-350 driven by Donald Bush and a Nissan Maxima driven by Denise Jones. Myers named as defendants: Donald Bush; Jones; Houston Specialty Insurance Company ("Houston Specialty"), the liability insurer of the Ford F-350; and USA Insurance Company, the liability insurer of the Nissan Maxima. In the petition, Myers alleged that he was a guest passenger in the Ford F-350, which was driven by defendant Donald Bush and owned by Business Interiors Logistics and Technicians, LLC ("BILT"), and that the accident was caused by the negligence of both Donald Bush and Jones.
Myers subsequently filed a First Amending and Supplemental Petition, naming additional defendants, including A.J. Gallagher Risk Management Services, Inc. and Gallagher employees, Andrea Helo and Jacob Crawford, (at times collectively referred to as "the Gallagher defendants"). Myers contended that the Gallagher defendants had been negligent in failing to apply for and secure proper uninsured motorist coverage under the Houston Specialty policy and under a policy issued by Evanston Insurance Company ("Evanston") and in failing to deliver copies of those policies to him. Thus, Myers contended that the Gallagher defendants were liable to him for damages in an amount up to $1 million, which should have been available to him in connection with the accident at issue pursuant to the terms of the Houston Specialty and Evanston policies.
In response to the amending and supplemental petition, the Gallagher defendants filed peremptory exceptions raising the objections of no right of action, no cause of action, and prescription; a dilatory exception raising the objection of improper cumulation; and a declinatory exception raising the objection of improper venue. In support of the exception of no right of action, the Gallagher defendants contended: that Myers was not an insured under the Houston Specialty and Evanston policies; that the Gallagher defendants provided insurance placement services for BILT, the insured under the policies; and that the Gallagher defendants had never placed any policy for Myers. Thus, they contended that Myers had no right of action related to the placement of the Houston Specialty and Evanston policies.
A hearing on the Gallagher defendants' exceptions was held on July 21, 2021. Following the hearing, the trial court rendered judgment, dated August 9, 2021, granting the Gallagher defendants' exception of no right of action and dismissing the Gallagher defendants from the case with prejudice. Given its ruling on the exception of no right of action, the trial court did not reach the Gallagher defendants' exceptions of no cause of action, prescription, improper cumulation, or improper venue, finding that those exceptions had been rendered moot.
This matter was consolidated in the trial court with three other actions arising out of the automobile accident at issue. However, the judgment before us was rendered in Jason Myers v. Houston Specialty Insurance Company, bearing docket number 188467; thus, the dismissal of the Gallagher defendants by the August 9, 2021 judgment on appeal was only as to Myers's claims against them.
At the hearing on the exceptions, the trial court stated that it wanted to hear the peremptory exceptions of no right of action and no cause of action first, prior to the other exceptions including the declinatory exception of improper venue. See generally Crockett v. Crockett, 537 So.2d 334, 339-340 (La.App. 1st Cir. 1988) (wherein the court questioned its authority to rule on the objection of no cause of action prior to resolution of the venue objection); see also Burns v. United Bulk Terminals Davant LLC. 21-738 (La.App. 5th Cir. 4/26/22), So. 3d___,___, 2022 WL 1275272, *2 (holding that where a party simultaneously files declinatory and peremptory exceptions, the trial court should first rule upon a declinatory exception before ruling upon a peremptory exception filed before or at the same time), and Schexnavder v. Gish. 06-579 (La.App. 5th Cir. 12/27/06), 948 So.2d 313, 314 (holding that an exception of venue should be ruled on prior to a peremptory exception because if it is later necessary to transfer the suit, the transferee court should not be bound by a decision of a co-equal court from another parish). The Gallagher defendants did not object in the trial court, and none of the parties have challenged on appeal the trial court's failure to rule on the declinatory exception of improper venue prior to ruling on the exception of no right of action. Accordingly, the propriety of this procedure is not before us on appeal.
From this judgment, Myers appeals.
DISCUSSION
Generally, an action can be brought only by a person having a real and actual interest that he asserts. LSA-C.C.P. art. 681. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Succession of Dean, 2017-0155 (La.App. 1st Cir. 3/29/18), 247 So.3d 746, 760, writ denied, 2018-00679 (La. 9/14/18), 252 So.3d 479. The objection of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Red Stick Studio Development. L.L.C. v. State Department of Economic Development, 2009-1349 (La.App. 1st Cir. 4/8/10), 37 So.3d 1029, 1033, writ denied, 2010-1501 (La. 10/1/10), 45 So.3d 1102.
At the trial of a peremptory exception of no right of action, "Evidence may be introduced to support or controvert the objection of no right of action if the grounds thereof do not appear in the petition." LSA-C.C.P. art. 931. If the pleadings fail to disclose a right of action, the claim may be dismissed without evidence, but the plaintiff should be permitted to amend to state a right of action if he can do so. On the other hand, if the pleadings state a right of action in the plaintiff, the exceptor may introduce evidence to controvert the pleadings on the trial of the exception, and the plaintiff may introduce evidence to controvert any objections. LSA-C.C.P. arts, 931 and 934; Howard v. Administrators of Tulane Educational Fund, 2007-2224 (La. 7/1/08), 986 So.2d 47, 59.
Generally, whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Succession of Dean, 247 So.3d at 760. However, when evidence is introduced to support or controvert an exception of no right of action, factual findings are reviewed under the manifest error-clearly wrong standard of review. Pearce v. Lagarde, 2020-1224 (La.App. 1st Cir. 10/7/21), 330 So.3d 1160, 1167, writ denied, 2022-00010 (La. 2/22/22), 333 So.3d 446.
In the instant case, while the Gallagher defendants and Myers both attached exhibits to their memoranda in support of and in opposition to the exceptions, no evidence was introduced at the hearing. In the absence of evidence, the peremptory exception must be decided on the facts alleged in the petition, which are accepted as true. Evidence not properly and officially offered and introduced cannot be considered, even if physically placed or located in the record. See Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88. Accordingly, the Gallagher defendants' exception of no right of action must be considered solely in light of the facts alleged in the petitions.
In his amending and supplemental petition, Myers alleged that the Gallagher defendants had negligently failed to apply for and secure $1 million in uninsured motorist coverage on the Houston Specialty policy issued to BILT, which provided coverage on the Ford F-350, as instructed by Thomas Bush, Jr., and had negligently failed to apply for and procure $1 million in uninsured motorist coverage on a policy issued by Evanston to BILT providing coverage for the Ford F350. He further alleged that Helo and Crawford, while acting in the course and scope of their employment with Gallagher, were negligent in: failing to properly review policy application documents at issue herein; failing to properly communicate with Myers regarding insurance requirements prior to procuring insurance on his behalf; failing to properly communicate with Houston Specialty regarding the insurance requirements of Myers; failing to properly communicate with Evanston regarding the insurance requirements of Myers; failing to properly prepare and review documents and applications submitted to Houston Specialty and Evanston; failing to deliver copies of the Houston Specialty and Evanston policies at issue to Myers; and failing to properly review insurance coverages and policies with Myers both before and after the issuance of insurance policies by Houston Specialty and Evanston.
Neither petition contains any allegations as to Thomas Bush, Jr.'s position or involvement with BILT.
An insurance broker issuing a policy of insurance has a duty to the insured to issue the policy with the requested coverage. Bustamante v. State Farm Mutual Automobile Insurance Company, 517 So.2d 232, 233 (La.App. 1st Cir. 1987), writ denied, 518 So.2d 510 (La. 1988). However, notably absent from Myers's amending and supplemental petition is any factual allegation that he is an insured under either the Houston Specialty policy or the Evanston policy, both of which were issued to BILT. Moreover, while Myers argues that because he was an occupant of the Ford F-350, he potentially has a right of action for uninsured motorist coverage under the policies as an omnibus insured, this court has held that the broker's duty to procure proper insurance coverage arises from his agreement with his client. LeBouef v. Colony Insurance Company. 486 So.2d 760, 761 (La.App. 1st Cir. 1986). Thus, the broker issuing the policy of insurance is under a duty to the insured to issue the policy with the requested coverage, but the broker is under no such duty to a tort victim who is a guest passenger in the insured's automobile to secure the proper insurance policy. Bustamante, 517 So.2d at 233. The failure of the broker to fulfill this obligation does not give the tort victim a right of action against him. LeBouef. 486 So.2d at 761-762.
Because Myers failed to set forth facts sufficient to establish that he was an insured, to whom the broker owed a duty to procure requested coverage under the policies at issue placed by the Gallagher defendants for BILT, he has failed to demonstrate that he belongs to the class of persons to whom the law grants the cause of action he is asserting against the Gallagher defendants. Accordingly, the trial court correctly granted the Gallagher defendants' exception of no right of action. However, we also conclude that the trial court erred in dismissing Myers's claims against the Gallagher defendants with prejudice. Rather, the trial court should have allowed Myers the opportunity to amend his petition to state a right of action, if he can do so. See LSA-C.C.P. art. 934 (when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court). Accordingly, the judgment granting the exception of no right of action will be amended to reflect that Myers's claims against these defendants are dismissed without prejudice, and the matter remanded to the trial court with instructions to issue an order allowing Myers to amend his petition, if possible, to state a right of action against the Gallagher defendants within a delay deemed reasonable by the trial court. See LeBlanc v. Alfred. 2015-0397 (La.App. 1st Cir. 12/17/15), 185 So.3d 768, 778.
While Myers stated in his memorandum in opposition to the exceptions that he was not an insured "under the policy," as noted above, no evidence was offered at the hearing on the exception, nor was there any stipulation by the parties that Myers was not an insured under either the Houston Specialty or Evanston policy. In the absence of properly offered and introduced evidence, the court has no authority to consider that statement as evidence. See Tranum v. Hebert. 581 So.2d 1023, 1026-1027 (La.App. 1st Cir.). writ denied. 584 So.2d 1169 (La. 1991).
CONCLUSION
For the above and foregoing reasons, the trial court's August 9, 2021 judgment, granting the exception of no right of action filed by A.J. Gallagher Risk Management Services, Inc., Andrea Helo, and Jacob Crawford and dismissing with prejudice Jason Myers's claims against them, is hereby amended to provide that the dismissal of Myers's claims against AJ. Gallagher Risk Management Services, Inc., Andrea Helo, and Jacob Crawford is without prejudice and, as amended, is affirmed. This matter is remanded to the trial court with instructions to issue an order granting Jason Myers leave to amend his petition to state a right of action against these defendants within a delay deemed reasonable by the trial court. Costs of this appeal are assessed one-half against plaintiff, Jason Myers and one-half against AJ. Gallagher Risk Management Services, Inc., Andrea Helo, and Jacob Crawford.
Although Myers prosecuted this appeal in forma pauperis, costs may nevertheless be taxed against him. LSA-C.C.P. at. 5188; Herigodt v. Town of Golden Meadow. 2020-0752 (La.App. 1st Cir. 2/22/21), 321 So.3d 1004, 1017, writ denied, 2021-00880 (La. 10/12/21), 325 So.3d 1070.
AMENDED AND, AS AMENDED, AFFIRMED; REMANDED WITH INSTRUCTIONS.