Opinion
NO. 2018 CW 0142
06-04-2018
ROBIN TOLER v. CABLE LOCK FOUNDATION REPAIR A/K/A OLSHAN FOUNDATION REPAIR CONSOLIDATED WITH ROGER D. ANDERSON, TERRI T. ANDERSON, AND THERESA LEUSCHNER v. LABORDE CONSTRUCTION INDUSTIRES, LLC, CATAMOUNT CONSTRUCTORS, INC., LMK BATON ROUGE CONSTRUCTION, LLC AND THE STANDARD OF BATON ROUGE, LLC
In Re: Accident Insurance Company, Inc., applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 614428 c/w 638369. BEFORE: WHIPPLE, C.J., WELCH AND HIGGINBOTHAM, JJ.
WRIT GRANTED IN PART AND DENIED IN PART. The district court's September 6, 2017, ruling that denied the Exceptions of Prematurity and No Right of Action filed by Accident Insurance Company is reversed, in part. It is well-established that claims for indemnity, as well as claims for defense arising under an indemnity agreement, are premature prior to a determination that damages are actually owed and the indemnitee sustains a loss. See Willis v. Frozen Water, Inc., 2015-0900 (La. App. 1st Cir. 12/23/15), 2015 WL 9466625, at *3-*4 (unpublished), writ denied, 2016-0146 (La. 3/14/16), 189 So.3d 1069, citing Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La. 4/12/05), 907 So.2d 37, 51. The same is true for a request for declaratory judgment regarding a party's right to indemnity and defense, since a determination as to whether Catamount Constructors, Inc. is entitled to indemnity and defense is premature until the district court determines whether damages are actually owed to the plaintiffs pursuant to Willis. See Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 2000-2517 (La. 2/21/01), 779 So.2d 726, 728 ("For a declaratory judgment to be granted, there must be a justiciable controversy, as courts are not permitted to issue advisory opinions based on a contingency which may or may not occur."). A declaration as to whether Catamount Constructors, Inc. is entitled to indemnity and defense is premature until the district court determines whether damages are actually owed. See Willis, 2015 WL 9466625, at *3. Thus, any declaratory relief the district court may provide prior to a determination of fault would also be premature and would ultimately amount to an impermissible advisory opinion. Therefore, the Exception of Prematurity filed by Accident Insurance Company is granted, in part, only with respect to the indemnity and defense claims asserted by AIX Specialty Insurance Company, and AIX Specialty Insurance Company's request for declaratory relief against Accident Insurance Company that it is obligated to pay its portion of the defense costs and indemnity incurred on behalf of Catamount Constructors, Inc. is dismissed, without prejudice. In all other respects, the writ is denied.
TMH
VGW
JEW
COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT