Blow v. OneBeacon Am. Ins. Co.

193 So.3d 244

Rufus BLOW, Jr.

v.ONEBEACON AMERICA INSURANCE COMPANY.

No. 2016–C–0301.

Court of Appeal of Louisiana, Fourth Circuit.

April 20, 2016.

Mickey P. Landry, Frank J. Swarr, Philip C. Hoffman, Matthew C. Clark, Landry & Swarr, LLC, New Orleans, LA, for Plaintiff/Relator.

Samuel M. Rosamond, III, Adam D. deMahy, Taylor, Wellons, Politz & Duhe, APLC, New Orleans, LA, for Defendant/Respondent, OneBeacon America Insurance Company.

(Court composed of Judge ROLAND L. BELSOME, PAUL A. BONIN, Judge DANIEL L. DYSART. Opinion Release Authorized by EN BANC Majority Vote).

PAUL A. BONIN, Judge.

OneBeacon America Insurance Company is sued under the Direct Action Statute in its multiple capacities as the liability insurer of Avondale Industries, Inc. and eleven of its executive officers. OneBeacon concedes that Orleans Parish is proper venue against it for the plaintiffs' survival action claims against it in its capacities as insurer of Avondale Industries and of five of the executive officers. But OneBeacon in its capacities as insurer of the remaining six executive officers raised the objection of improper venue.

The trial judge sustained OneBeacon's declinatory exception and dismissed the suit without prejudice against OneBeacon in its specified capacities. The suit against OneBeacon in its other capacities remains pending in Orleans Parish. The plaintiffs, who have been substituted for the now-deceased original plaintiff, Roy Blow Jr., applied for supervisory review.¹

We granted a writ of certiorari, ordered the district court record to be filed, and scheduled oral argument on an expedited basis to resolve the issue without interfering with the impending trial date. On our de novo review of the judgment, we conclude that the trial judge correctly sustained the exception of improper venue. But, because we find that dismissal without prejudice was not the only remedy available under La. C.C.P. art. 932 B, we amend the judgment to delete the dismissal with prejudice and remand the matter to the district court with instructions.

We explain our decision in considerably more detail below.

I

Before we treat the substantive issue presented in this matter, we address our decision to grant the writ of certiorari. There are two aspects to our decision in this case.

A

First, as the Supreme Court has made clear, under current procedural law an adverse ruling on venue is interlocutory in nature. See Land v. Vidrine, 10–1342, p. 5 (La.3/15/11), 62 So.3d 36, 39 ; Savoie v. Rubin, 01–3275, 01–3276, p. 3 (La.6/21/02), 820 So.2d 486, 488. Thus, in order to obtain review of the ruling, the party adversely affected thereby must immediately apply for supervisory relief.² See Land, 10–1342, p. 7, 62 So.3d at 40–41. The party may not await the rendition of a final judgment which adjudicates all issues as to all parties and then request appellate review as is otherwise available with respect to other interlocutory rulings. See La. C.C.P. art. 1915 B(2); Favrot v. Favrot, 10–0986, p. 2 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102 n. 1 ; People of the Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752 (La.1968).

In exercising our discretion whether to grant supervisory review in civil cases, we are especially influenced by a relator's showing that the interlocutory ruling complained of should be immediately corrected either because the ruling likely would cause “irreparable harm” or the well-known Herlitz factors are present. See Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (“When the overruling of the exception is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.”); Whitney Nat. Bank v. Rockwell, 94–3049, p. 6 (La.10/16/95), 661 So.2d 1325, 1329 n. 3 ; Gerrets v. Gerrets, 06–0087, p. 4 (La.App. 4 Cir. 1/10/07), 948 So.2d 343, 346. See also Tsegaye v. City of New Orleans, 15–0676, p. 7 (La.App. 4 Cir. 12/18/15), 183 So.3d 705, 711 n. 4 (“We have previously suggested that an intermediate appellate court, when confronted with the confluence of Herlitz factors in an application for the exercise of its discretionary supervisory jurisdiction, may abuse its discretion when it fails to exercise its supervisory jurisdiction to review the application.”).

Traditionally, we have viewed an interlocutory ruling on venue as one which may cause irreparable harm. Indeed, before the amendment to La. C.C.P. art.2083 in 2005, such a ruling was entitled to an appeal of right. See Crawford v. Blue Cross and Blue Shield of Louisiana, 00–2026, p. 12 (La.App. 4 Cir. 12/5/01), 814 So.2d 574, 581. Although a litigant's right to appeal an adverse ruling on venue was removed by the amendment, we still carefully review such applications for irreparable harm. See Gerrets, 06–0087, p. 4, 948 So.2d at 346. The notion of “irreparable harm” in the venue context should not be overstated. We are confident that the parties can receive fair treatment in any court; venue is primarily a device for the allocation of cases. See Land, 10–1342, p. 7, 62 So.3d at 40–41. Our procedural scheme, however, strongly (but not inflexibly) favors the plaintiff's selection of a forum of proper venue. See Osborn v. Ergon Marine & Industrial Supply, Inc., 12–0183, p. 1 (La.4/13/12), 85 So.3d 687. Thus, when a ruling dislodges a plaintiff's suit from the forum selected by him, as this ruling does, we are careful to examine the support for such a ruling.

Here, too, the Herlitz factors counseled granting the application. The parties agree that the facts are undisputed. The issue to be decided is a question of law. See Gerrets, 06–0087, p. 4, 948 So.2d at 346 (“Venue is a question of law.... Accordingly, we will review the trial court's granting of Defendant's Exception of Improper Venue de novo. ”). And the relators set out in their application their not insubstantial arguments that the ruling is incorrect.

Thus, we found it appropriate to grant the writ of certiorari and fully consider the merits of the application.

B

Second, the relators have pointed out to us in their application that the same legal issue has re-occurred in previous or pending applications for supervisory writs and that there has been some inconsistency in result.

In two of the cases, we declined to exercise our supervisory jurisdiction.³ In the earlier one, the district court sustained the exception of improper venue. See Walker v. Avondale Industries, Inc., unpub., 11–0991 (La.App. 4 Cir. 9/14/11) (McKay, C.J., dissenting). In the later one, the district court denied the exception of improper venue. See Landry v. Northrop Grumman Industries, Inc., unpub., 15–1188 (La.App. 4 Cir. 2/2/16) (Landrieu, J., dissenting).

In one of the cases, we peremptorily exercised our supervisory jurisdiction, reversed the ruling denying the exception of improper venue, and remanded the matter to the district court to transfer the case as to OneBeacon as insurer of Avondale Industries and its executive officers. See Hebert v. Avondale Industries, Inc., unpub., 13–0225 (La.App. 4 Cir. 4/25/13) (McKay, C.J., and Belsome, J., dissenting).⁴

Notably, all three previous dispositions, whether exercising our jurisdiction or declining to exercise it, are the product of split panels. And, more importantly for present purposes, because of the varying outcomes, we, the panel members, referred the opinion to the judges en banc, seeking to resolve the precise issue presented in our circuit with a published opinion with a result that is authorized by the judges en banc, acting pursuant to our internal operating procedures. See Bernard v. Ellis, 10–1495 (La.App. 4 Cir. 9/27/11), 76 So.3d 69 ; State v. Cobb, 13–0431 (La.App. 4 Cir. 6/25/14), 161 So.3d 28 (on re hearing); Roundtree v. New Orleans Aviation Bd., 04–0702, pp. 9–10 (La.App. 4 Cir. 2/4/05), 896 So.2d 1078, 1085 n. 17.

Having now submitted this opinion to the Court en banc and having sought authorization by majority vote to release the opinion, we report that the court, by a 7–4 vote, has authorized the release. The recorded votes of the individual twelve judges are recorded in the footnote.⁵ Also, under our internal operating procedures, any judge who is not already on the three-judge panel may also submit for release a concurring or dissenting opinion.

II

We ground our resolution of this writ application upon the terms of the Louisiana Direct Action Statute's venue provisions, which are codified in Section 1269 B of Title 22 of the Louisiana Revised Statutes. We begin our discussion by examining the statute's relevant provisions. And because the retroactivity vel non of certain legislative amendments to the statute are at issue, we also study its pertinent legislative modifications.

The Direct Action Statute grants a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured. See Green v. Auto Club Group Insurance Co., 08–2868, p. 3 (La.10/28/09), 24 So.3d 182, 184 (citations omitted). The Statute “was enacted to give special rights to tort victims, not to insureds with contract claims against a defendant.” Cacamo v. Mut. Fire Ins. Co., 99–3479, p. 3 (La.6/30/00), 764 So.2d 41, 43. “In the absence of the Direct Action Statute, a plaintiff would have no right of action against an alleged tortfeasor's liability insurer because the obligation between the plaintiff and the alleged tortfeasor is delictual in nature, and plaintiff has no contractual relationship with the tortfeasor's insurer.” Green, 08–2868, p. 3, 24 So.3d at 184. Because it “provides the sole procedural right of action against the insurer in this case, the Direct Action Statute provides ‘the rules regulating the...