Roundtree v. New Orleans Aviation Bd.

896 So.2d 1078

Charles ROUNDTREE and Betty Smith Roundtree v. The NEW ORLEANS AVIATION BOARD, New Orleans International Airport and/or The City of New Orleans; Powell Insurance Company and XYZ Insurance Company.

No. 2004-CA-0702.

Court of Appeal of Louisiana, Fourth Circuit.

February 4, 2005.

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Robert J. Young, III, Young, Richaud & Myers, LLC, Metairie, LA, for Defendant/Appellee (Agricultural Excess and Surplus Insurance Company).

Emile A. Bagneris, III, Ginger K. DeForest, Ungarino & Eckert, L.L.C., Metairie, LA, for Defendants/Appellants.

(Court composed of Judge PATRICIA RIVET MURRAY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).

PATRICIA RIVET MURRAY, Judge.

This is an insurance coverage dispute. The dispute is whether the commercial general liability policy issued by Agricultural Excess and Surplus Insurance Company ("Agricultural") to G.P. Glynagin Enterprises, Inc. ("Glynagin"), a subcontractor, provides coverage for two alleged additional insureds: (i) Glynagin's contractor, Hamp's Enterprise, Inc. ("Hamp's); and (ii) the property owner, the New Orleans Aviation Board, the New Orleans International Airport, and the City of New Orleans (collectively "the New Orleans Defendants"). From the trial court's decision granting Agricultural's motion for summary judgment based on its finding of no coverage, the New Orleans Defendants, Hamp's, and Scottsdale Insurance Company ("Scottsdale") (Hamp's insurer) appeal. For the following reasons, we reverse in part, affirm in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On March 14, 1995, Charles Roundtree, a Glynagin employee, was injured while in the course and scope of his employment. At the time of the accident, Mr. Roundtree was inspecting a roof on a house owned by the New Orleans Defendants in preparation for removing the asbestos shingles. As Mr. Roundtree probed the wood underneath the roof shingles, the roof allegedly caved in, causing him to injure his knee.

On March 14, 1996, Mr. Roundtree and his wife filed suit against the New Orleans Defendants. The New Orleans Defendants answered, denying liability. On April 26, 1999, the New Orleans Defendants filed a third party demand against Glynagin and its insurer, Agricultural. The New Orleans Defendants alleged that an indemnification agreement existed among the New Orleans Defendants, Hamp's, and Glynagin. The New Orleans Defendants further alleged that Glynagin contracted to defend Hamp's and the New Orleans Defendants for any acts or omissions of Glynagin or its employees and that Agricultural had issued a policy of insurance naming Hamp's and the New Orleans Defendants as additional insureds.

On June 1, 1999, Agricultural answered, denying that its policy provided coverage as alleged, claiming that its policy specifically excluded such coverage, and denying that Glynagin owed indemnity to the New Orleans Defendants.

On December 15, 2000, the Roundtrees filed a supplemental and amended petition adding three defendants: Hamp's, Scottsdale, and Agricultural. They alleged that Hamp's was liable pursuant to La. Civ.Code arts. 2315, 2316 and 2317 and that Hamp's failed to take adequate precautions to prevent Mr. Roundtree's injuries.

On December 14, 2001, Scottsdale filed a motion for summary judgment seeking to be dismissed from the suit on the grounds that Agricultural's insured, Glynagin, had agreed to indemnify and defend the New Orleans Defendants and Hamp's. Alternatively, Scottsdale argued that the court should declare Scottsdale and Agricultural to be co-primary insurers.

Agricultural, as both a direct and a third party defendant, and Glynagin, as a third party defendant, also filed a motion for summary judgment.¹ They argued that neither Glynagin nor Hamp's owed indemnification to the New Orleans Defendants. Continuing, they argued that neither the contract between Glynagin and Hamp's nor the contract between Hamp's and the New Orleans Defendants provided indemnification for either Hamp's or the New Orleans Defendants' own negligence.

On April 5, 2002, the trial court granted Scottsdale's motion for summary judgment motion, but denied Glynagin's and Agricultural's motion. On Agricultural's appeal, we reversed the trial court, reasoning:

The plain language of the indemnity agreement in question indicates that Glynagin agreed to defend Hamp's in any action brought against Hamp's for any acts or omissions of Glynagin. There is nothing in the entire contract between the parties to suggest that Glynagin agreed to indemnify either Hamp's for Hamp's own negligence or strict liability, or the New Orleans defendants for their own negligence and/or strict liability. Plaintiffs have alleged that Hamp's was negligent for failing to warn Mr. Roundtree about the dangerous roof condition. That issue has yet to be decided. Thus, it was error for the trial court to order Glynagin to defend Hamp's against the allegations made specifically against Hamp's. In turn, it was error for the trial court to order Glynagin to defend the New Orleans defendants because Glynagin was not contractually bound to indemnify the New Orleans defendants in any way.

Roundtree v. New Orleans Aviation Bd., 2002-1757, p. 9 (La.App. 4 Cir. 4/9/03), 844 So.2d 1091, 1096, writ denied, 2003-1331 (La.9/19/03), 853 So.2d 639 (emphasis in original).

In our prior opinion, we declined to reach the insurance coverage issues presented in this case because the trial court had not decided those issues. We thus remanded this case to the trial court for resolution of those issues. On remand, Agricultural filed a second motion for summary judgment seeking a determination that it did not provide coverage to either Hamp's or the New Orleans Defendants. Hamp's, the New Orleans Defendants, and Scottsdale filed a cross motion for summary judgment seeking a determination that Agricultural's policy did provide coverage and that its coverage was primary.²

On December 23, 2003, the trial court rendered judgment granting Agricultural's motion for summary judgment and declaring the cross motions moot. This appeal followed.³

APPELLATE JURISDICTION

Before reaching the merits of this appeal, we first must address the jurisdictional issue of whether the trial court's judgment is a final judgment for purposes of immediate appeal under La. C.C.P. art. 1915. Under the present version of La. C.C.P. art. 1915(B), as amended in 1999, the trial court's December 23, 2003 judgment dismissing Agricultural would be a final judgment under La. C.C.P. art. 1915(A), and would be appealable under La. C.C.P. art. 1911, which provides that "[a]n appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated." La. C.C.P. art. 1911.⁴ The Legislature, however, limited the effectiveness of the 1999 amendment to "actions filed on or after January 1, 2000." Because this action was filed on March 14, 1996, the 1997 version of Article 1915(B) applies.⁵

Under the applicable version of Article 1915(B)(1), in order for the December 23, 2003 judgment to be appealable, the trial court was required to both (i) designate it as final, and (ii) make an express determination that there was no just reason to delay appealing it. Stated differently, the trial court was required to make two separate determinations: (i) whether the judgment is a final one, as opposed to an interlocutory one ("finality determination");⁶ and (ii) assuming a final judgment, whether there is any just reason for delaying the appeal of that judgment ("certification decision").

On February 19, 2004, the trial court, at the parties' request, issued an order certifying the judgment in Agricultural's favor "as a final judgment in accordance with La. C.C.P. Art. 1915, for all purposes, including appeal thereof." The trial court's designation of this judgment as a final one is clearly correct because it dismisses a party from the suit. See La. C.C.P. art. 1841.⁷ However, under this court's jurisprudence, the trial court's certification of this judgment is arguably deficient in three respects.

The first deficiency is that the trial court failed to recite in its order the statutory language "there is no just reason for delay." Under the facts of this case, we find the trial court's express reference to the statutory provision in its order was sufficient. To hold otherwise would be to place form over substance.⁸

The second deficiency is that when the original notice of appeal was filed, the trial court had not issued a certification order. The Appellants cured this deficiency by obtaining a certification order from the trial court on February 19, 2004, and thereafter timely filing a new notice of appeal. This case thus does not present a post-appeal certification issue.

The third deficiency is that the trial court failed to give explicit reasons for its determination that there is no just reason for delay. Unlike the other two deficiencies, resolution of this deficiency requires an extensive analysis.

In a line of cases, this court has adopted a "no-reasons, no-jurisdiction" certification rule.⁹ That line of cases holds that a trial court must give explicit reasons, on the record, articulating why it determined that there is no just reason for delay.¹⁰ That line of cases also holds that the trial court's mere parroting of the statutory language "there is no just reason for delay" is insufficient.¹¹ However, this court's jurisprudence has not consistently followed this rule.¹² Moreover, this court recently held that this court "review[s] the certification on a case by case basis taking into consideration the totality of what was intended and whether in context conclusory statements equate to adequate reasons." LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc., 2003-1283, p. 7 (La.App. 4 Cir. 3/3/04), 869 So.2d 304, 308.¹³

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