Landry v. G.B.A., 84-3758

• Decision Date: 10 June 1985
• Docket Number: No. 84-3758,84-3758
• Citation: 762 F.2d 462
• Parties: Arthur P. LANDRY, Plaintiff, v. G.B.A. d/b/a Coating Specialists Co., etc., et al., Defendants, COMMERCIAL UNION INSURANCE, Third-Party Defendant-Appellant-Cross-Appellee, v. CLEMCO INDUSTRIES, a/k/a Clemco Clementina, Ltd., Defendant-Third-Party Plaintiff-Appellee-Cross-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 462

762 F.2d 462

2 Fed.R.Serv.3d 480

Arthur P. LANDRY, Plaintiff, v. G.B.A. d/b/a Coating Specialists Co., etc., et al., Defendants, COMMERCIAL UNION INSURANCE, Third-Party Defendant-Appellant-Cross-Appellee, v. CLEMCO INDUSTRIES, a/k/a Clemco Clementina, Ltd.,

Defendant-Third-Party Plaintiff-Appellee-Cross-Appellant.

No. 84-3758

Summary Calendar.

United States Court of Appeals Fifth Circuit.

June 10, 1985.

Boggs, Loehn & Rodrigue, Joseph L. von Rosenberg, III, Thomas E. Loehn, New Orleans, La., for third-party defendant-appellant-cross-appellee.

Hulse, Nelson & Wanek, Craig R. Nelson, New Orleans, La., for defendant-third-party plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, TATE and GARWOOD, Circuit Judges.

PER CURIAM:

As we are bound to note our want of appellate jurisdiction, sua sponte, Spiess v. C. Itoh & Co., 725 F.2d 970 (5th Cir.1984), we dismiss this attempted Rule 54(b) (Federal Rules of Civil Procedure) appeal for want of an appealable order.

This suit was commenced by plaintiff Arthur Landry's suing various defendants, including appellee Clemco Industries ("Clemco"), alleging that he had contracted silicosis during various periods of employment as a sandblaster with other parties from 1966 to 1978. He claims, inter alia, that protective respiratory equipment which he used and which was manufactured by Clemco was defective. Clemco denied liability as to the plaintiff and filed a third-party complaint against appellant Commercial Union Insurance Company ("Commercial Union") which had issued Clemco policies of liability insurance which were effective from August 1, 1970 through September 30, 1976. Clemco claimed that the Commercial Union policies covered any liability it might have to the plaintiff, and that Commercial Union owed it a defense of the plaintiff's suit. Commercial Union denied coverage and refused to defend. Clemco filed a motion for summary judgment against Commercial Union seeking adjudication that Commercial Union owed Clemco a duty of defense and indemnity for all claims made by the plaintiff, plus penalties and attorneys' fees for failing to defend Clemco. When Clemco's motion for summary judgment was heard, the district court on August 22, 1984 announced in open court that it granted the motion so far as it sought a decree that Commercial Union owes a defense to Clemco, but the motion was "denied as to fees and penalties because the Court finds the denial [by Commercial Union of the obligation to defend] was not arbitrary." The district court at this time also stated that so much of Clemco's motion for summary judgment as related to "the question of indemnification is deferred pending trial at the request of counsel for Clemco." On October 10, 1984, Clemco filed a motion for judgment under Rule 54(b) requesting "a final judgment on this Court's ruling of August 22, 1984, whereby it granted Clemco's Motion for Summary Judgment against Commercial Union decreeing that it owes Clemco Industries a defense in this matter." The district court found under Rule 54(b) that there was no just reason for delay and directed "entry of final judgment on this Court's decree that Commercial Union owes Clemco Industries a defense in this matter." The...