Belanger v. Great American Indemnity Co. of New York, 13284.

Decision Date20 April 1951
Docket NumberNo. 13284.,13284.
Citation188 F.2d 196
CourtU.S. Court of Appeals — Fifth Circuit

Homer J. Belanger, Jno. Fred Odom, Baton Rouge, La., for appellant.

Alvin R. Christovich, New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.


This appeal complains of the order of the trial Court sustaining defendant's motion for summary judgment in a suit against it by "direct action," upon a liability policy issued in Massachusetts which contained a "no action clause.1" In sustaining the motion for summary judgment the trial Court adjudged, as one ground for its order, that at the times, of the accident, of the institution of the suit, and of the hearing and judgment upon the motion, the applicable provision of Louisiana law, Sec. 14.45 of the Louisiana Insurance Code, LSA-RS 22:655, by which was repealed Louisiana Act 55 of 1930, limited the right of direct action against liability insurers to policies of insurance issued in Louisiana.2 As an additional ground in support of its judgment, the Court held in effect, that application of the ruling in Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178, required the conclusion that to apply the direct action provision of the Louisiana statute to the Massachusetts insurance contract would, under the circumstances here, deprive the insurer of due process of law.

We think the ruling of the Court can properly be sustained upon the construction given Section 14.45 of the Louisiana Insurance Code as shown by its opinion quoted above. The appellant, while contesting even this application of Section 14.45 supra, calls our attention to a concurrent resolution adopted by the Louisiana Legislature on June 26, 1950 which resolved that "it was never the intention" of the 1948 Legislature in enacting Section 14.45 to repeal or in any wise restrict Act 55 of 1930 so far as it provided direct action against liability insurers. Reliance is also had upon the provisions of Act No. 541 of 1950 and Act No. 542 of 1950. Without attempting to set forth these statutory provisions in detail, it is sufficient to say that they purport to expressly provide, Act No. 541, a right of direct action in Louisiana as to accidents or injuries occurring within the State of Louisiana, no matter where the policy sued upon was written or delivered, and Act No. 542, that no certificate of authority to do business in Louisiana shall be issued to any foreign liability insurer until such insurer shall consent to being sued by the injured person by the direct action provided in Act No. 541. These Acts became effective July 26, 1950. The present cause had been dismissed on April 5, 1950. Appellant contends that since the remedy of direct action is remedial and procedural, as has been held by the Louisiana Courts, and this Court in Wells v. American Employers' Ins. Co., 5 Cir., 132 F.2d 316,3 the express authorization for direct action is properly retroactive so that it is urged that the Louisiana statutes of 1950, passed subsequent to the order now complained of, should now be considered by this Court as grounds of reversal of the judgment, even if it was proper when entered. This contention is unsound for the reason that it misapplies the principle which permits a change of procedure to affect pending proceedings from the effective date of the change and in the subsequent course of litigation to an entirely different situation where the litigation has been terminated and closed in accordance with then existing law prior to the change and enlargement of remedy. In such latter case, a change in the procedural law does not operate retroactively so as to affect a proceeding which had already been terminated by judgment before the enactment of the amendment.4 The concurrent resolution of 1950 expressing the legislative determination by that body of the "intention" of the Legislature of 1948, can in no event have more effect than if considered as an amendment, or new statute, since as to the litigation already closed, the question concerns the correctness of the construction and application given to the existing statute as written and enforced at the time of the adjudication. The defendant was entitled to have its rights determined in accordance with existing law, and this being done, the adjudication may not be annulled by subsequent legislation.

Since this reason supports the judgment of the trial Court, there is no occasion for any discussion of the constitutional question and we obey the...

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17 cases
  • Collins v. American Automobile Insurance Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 14, 1956
    ...Short, La. App.1936, 165 So. 512; Stephenson v. List Laundry & Dry Cleaners, 182 La. 383, 162 So. 19. Cf. Belanger v. Great American Indemnity Co. of New York, 5 Cir., 188 F.2d 196. Home Ins. Co. v. Highway Ins. Underwriters, 222 La. 540, 62 So.2d 828, cited by defendant, construes the stat......
  • Buxton v. Midwestern Ins. Co.
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    • U.S. District Court — Western District of Louisiana
    • January 11, 1952 the sense that they are retroactive. See, Belanger v. Great American Indemnity Co. of New York, D.C., 89 F. Supp. 736, affirmed 5 Cir., 188 F.2d 196; contra, Bouis v. Ætna Casualty & Surety Co., D.C., 91 F.Supp. 954; but see, Bayard v. Traders & General Insurance Co., D.C., 99 F.Supp. We......
  • Hulin v. Fibreboard Corp.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 9, 1999
    ...Honda Motor Co. Inc., 635 So.2d 177 (La.1994) (prescription); Hall v. Hall, 516 So.2d 119 (La.1987) (same); Belanger v. Great Am. Indem. Co., 188 F.2d 196, 198 (5th Cir.1951) (Louisiana diversity case--res judicata); Petroleum Helicopters, Inc. v. Avco Corp., 834 F.2d 510, 511 (5th Cir.1987......
  • New Orleans Public Service, Inc. v. Brown
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • January 16, 1974
    ...Garment Co., 166 F.2d 233 (8th Cir.), cert. denied, 334 U.S. 845, 68 S.Ct. 1513, 92 L.Ed. 1768 (1948); Belanger v. Great American Indemnity Co. of New York, 188 F.2d 196 (5th Cir. 1951); Untersinger v. United States, 181 F.2d 953 (2nd Cir. 1950). Following this line of jurisprudence in the ......
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