Anderson v. Dean

1

NANCY ANDERSON, ET AL v. BOB DEAN, JR., ET AL.

No. 23-C-255

Court of Appeals of Louisiana, Fifth Circuit

May 31, 2023

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 820-839, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

COUNSEL FOR DEFENDANT/RELATOR, TDC SPECIALTY INSURANCE COMPANY DANICA B. DENNY KATHLEEN P. RICE DANIEL SCHWANK

Panel composed of Judges Fredericka Homberg Wicker, Jude G Gravois, and John J. Molaison, Jr.

JOHN J. MOLAISON, JR. JUDGE

TDC Specialty Insurance Company, a defendant in the above captioned matter, seeks review of the trial court's denial of its peremptory exceptions of no cause of action and non-joinder, and an alternative motion to stay. For the reasons that follow, we affirm.

Relevant procedural history

The underlying matter is a class action lawsuit^[1] related to nursing home evacuations that occurred during Hurricane Ida. The application before us shows that the original petition was filed at the Twenty-Fourth Judicial District Court on September 6, 2021. In a second supplemental and amending petition filed on August 4, 2022, the plaintiffs named TDC Specialty Insurance Company ("TDCSIC") as a defendant in its capacity as an insurer which provided policy LTP-00828-21-02 to Louisiana Healthcare Consultants, LLC and "other named Insureds." The plaintiffs asserted in the amending petition that they were entitled to proceed against TDCSIC under the provisions of the Louisiana Direct Action Statute, La. R.S. 22:1269. Although a Class Action Stipulation of Settlement between the parties was executed and entered into the record on August 15, 2022, TDCSIC had filed a petition in federal district court on August 2, 2022 which sought a judicial determination and declaration as to the parties' rights and obligations under Long Term Care Organizations Liability Policy No. LTP-00828-21-02, and other relief. On February 22, 2023, TDCSIC filed peremptory exceptions of no cause of action and non-joinder, and an alternative motion to stay pursuant to La. C.C.P. art. 532. In the instant writ application, TDCSIC seeks review of the trial court's denial of its Exception of Non-Joinder and Motion to Stay, following a hearing on April 11, 2023.

Multiple class actions

The existence of multiple class action lawsuits against a single defendant is not novel in Louisiana. In prior cases where multiple class actions were ongoing simultaneously, in determining whether an action in one case adversely affected parties in another case for the purposes of lis pendens or res judicata, Louisiana courts looked to factors such as the identity of the parties and the nature of the claims.^[2] To the extent that TDCSIC argues generally or theoretically, that a ruling in the instant case will create inconsistent obligations among the other pending class actions lawsuits against it in Louisiana, we note that the application before us contains no information about the nature of the claims in the other lawsuits or members of those respective classes.

Exception of non-joinder

La. C.C.P. art. 641 states:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those already parties.

(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:

(a) As a practical matter, impair or impede his ability to protect that interest.

(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

In its exception of non-joinder, TDCSIC argued:

Plaintiffs failed to join all parties with an interest in this action. Plaintiffs failed to name as Defendants all the persons claiming an interest in the insurance policy, the insureds or putative insureds, and all of the other claimants as required by La. Code Civ. Proc. Art. 641.

Accordingly, TDCSIC refers to two types of non-joined parties consisting of "claimants," which presumably equate to plaintiffs,^[3] and its own insureds.

Putative class representatives

Once the class has been certified, if there is no alteration or other change in the constituency of the class or the issues, the decision on the merits is conclusive as to all members of the class. "A definitive judgment on the merits rendered in a class action concludes all members of the class, whether joined in the action or not, if the members who were joined as parties fairly insured adequate representation of all members of the class." La. C.C.P. art. 597. Greater New Orleans Car Dealers Ass'n v. Louisiana Tax Comm'n, 95-308 (La.App. 5 Cir. 10/18/95), 663 So.2d 797, 800. An exception of non-joinder of necessary parties therefore cannot be sustained when the alleged necessary parties are members of a class in a class action suit. Hemps Creek Users v. Pollutors of Hemps Creek, 330 So.2d 361, 363 (La. Ct. App. 1976).

While TDCSIC generically refers to unnamed claimants in its exception of non-joinder, it has not challenged the certification of the plaintiffs as a class. The petition in this case is clear that the named plaintiffs have brought the class action lawsuit "individually and as representatives of all those similarly situated." Adequacy of representation for class certification requires that the claims of the proposed class representatives be a cross-section of, or typical of, the claims of all class members. Duhon v. Harbor Homeowners' Ass'n, Inc., 15-0852 (La.App. 4 Cir. 6/30/16), 197 So.3d 322, 329.

The plaintiffs do not have to produce an individual representing every type of claim. Andrews v. Trans Union Corp., 04-2158, (La.App. 4 Cir. 8/17/05), 917 So.2d 463, 468. As noted above, the writ application provides no basis upon which this Court can consider whether specific claimants should be joined in the instant action. However, as the class has previously been certified without dispute, we presume that any similarly situated "claimants" not named thus far are nonetheless adequately represented.

Named defendants in the instant action

TDCSIC claims that the following parties that were not named in the plaintiffs' petition, referred to as "entities that have sought coverage under the Policy," are necessary to the action: Donise Boscareno, William Trent Daigre, Michael G. Russo, Plaquemine Plaza Holdings, LLC, Property Crescent City, LLC, Opelousas Land Holding Company LLC, and Maison Orleans I LLC.^[4] However, TDCSIC provides no information about why these particular parties are indispensable to this specific lawsuit.

In their first supplemental and amending petition, the plaintiffs reserved the right to add additional "presently unknown" defendants "for which the identities become known through investigation and discovery, and which are liable jointly, severally, and in solido along with the other Defendants." Accordingly, though the plaintiffs apparently reserved the right to add additional parties, it not clear from the writ application why they have not yet done so. However, we note that with the exception of William Daigre and Michael Russo, all of the potential defendants referred to by TDCSIC are addressed specifically in the Class Action Stipulation of Settlement entered into the record on August 15, 2022, and are referred to as "released parties."

TDCSIC as a party to the lawsuit

The plaintiff's original petition was filed on September 6, 2021. In its first supplemental and amending petition, filed on September 16, 2021, the section titled "Parties," Section 2(L), added as a defendant:

XYZ Insurance Companies, the identities of which are presently unknown, yet which separately or together provide any, some or all of the Defendants insurance coverages for the acts, omissions, occurrences and/or liability of Defendants as set forth in this Petition.

The record before us shows that the insurance policy at issue was identified as LTP-00828-21-02. Ultimately, it was discovered that TDCSIC had issued the policy. TDCSIC does not dispute that it was an insurer of the defendants in the state district court action, which was filed well before its own federal petition. TDCSIC also does not dispute that the state court action was timely filed.

It appears from the record that there was confusion on the part of the plaintiffs as to the proper name of the defendants' insurer. An affidavit from plaintiff's counsel Tate Martin, dated January 17, 2023, states that in the process of drafts of the proposed settlement and preliminary approval documents, he communicated with new defense counsel, referring to the client as "TDC Specialties Insurance Company." Counsel for TDC changed references in some of the documents under review to "TDC Specialty Underwriters." Mr. Watson claims that he relied on the representations of Counsel for Defendants in their revisions to the settlement and preliminary approval documents that TDC Specialty Underwriters was the correct entity to name as the insurer who issued the policy. He concludes in his affidavit:

11. In the Second Supplemental and Amended Petition, I requested that TDC Specialty Underwriters be served through the Secretary of State, which I knew to be the process for serving a foreign insurer.

12. At 10:14 AM on August 4, 2022, I received an email from Philip Watson with an updated version of the settlement and preliminary approval documents where, for the first time, the name for the TDC entity was changed back to "TDC Specialty Insurance Company."

The proper name for TDCSIC was ultimately corrected in the plaintiffs' third amending petition, filed on January 17, 2023.

First_ filed action

As part of its argument, TDCSIC contends that the...