Opinion
No. 2023-CC-01253
11-21-2023
Gina WILLIE and Richard Willie v. Ngoc NGUYEN, Darryl Warner Jr., GEICO Indemnity Company, Rasier, LLC, United Financial Casualty Company, and Garrison Property and Casualty Insurance Company
Genovese, J., would grant and assigns reasons. Hughes, J., recused.
Applying For Writ Of Certiorari, Parish of Orleans Civil, Orleans Civil District Court Number(s) 2022-07294, Court of Appeal, Fourth Circuit, Number(s) 2023-C-0458.
1Writ application denied.
Genovese, J., would grant and assigns reasons.
Hughes, J., recused.
GENOVSE, J., would grant this writ for the following reasons:
1In denying this writ and thereby upholding the decision of the court of appeal granting Defendant’s exception of no cause of action, the majority is conflating an exception of no cause of action with a motion for summary judgment. They are not one and the same and are incongruous.
In this case, Plaintiffs claim they are entitled to uninsured/underinsured motorist coverage ("UM") from the Defendant insurer and have plead same. Defendant insurer has filed an exception of no cause of action. In deciding an exception of no cause of action, the allegations in the plaintiff’s petition are to be accepted as true. Wederstrandt v. Kol, 22-1570 (La. 6/27/23), 366 So.3d 47. In doing so, the court must then determine whether the law affords the plaintiff a legal remedy in the relief he/she seeks. Id.
There is no dispute that the Plaintiffs seek UM in this case. Taking these allegations as true, Plaintiffs have stated a cause of action. The court of appeal decision goes off on the merits of the case as opposed to the purpose of the exception. The issue as to this exception is not whether the ordinance is applicable; the issue is whether Plaintiffs are entitled to UM. Plaintiffs also allege and dispute the validity 2of the UM waiver. This goes to the merits of the case, and the merits of the case are not decided by an exception of no cause of action.
In improvidently addressing the merits of this case, the court of appeal relies upon the case of Jean v. James River Ins. Co., 19-0041 (La.App. 4 Cir. 5/29/19), 274 So.3d 43, 46, writ denied, 19-1000 (La. 10/1/19), 280 So.3d 160. The court of appeal’s reliance on Jean is misplaced. Jean was decided via summary judgment. The case at bar solely concerns an exception of no cause of action and is not yet at the summary judgment stage. Thus, Jean is inapplicable as to Defendant’s exception of no cause of action wherein Plaintiffs’ allegations are accepted as true and the only issue is whether UM is available — and it is, though the amount is in question. Plaintiffs claim the UM waiver is invalid. That goes to the merits of the case and is to be determined by summary judgment or trial on the merits and not whether Plaintiffs state a cause of action.
I would grant this writ, reverse the court of appeal, and reinstate the trial court’s overruling of Defendant’s exception of no cause of action.