Bellah v. State Farm Fire and Cas. Ins. Co.
| Decision Date | 28 June 1989 |
| Docket Number | No. 88-448,88-448 |
| Parties | Don and Maudie BELLAH, Plaintiff-Appellant, v. STATE FARM FIRE AND CASUALTY INS. CO., et al., Defendants-Appellees. 546 So.2d 601 |
| Court | Court of Appeal of Louisiana — District of US |
Smitherman, Lunn, Chastain & Hill, Gordon N. Blackman, Jr., Shreveport, for plaintiff-appellant.
McLure & Pickels, Charles K. Charrier, Alexandria, Kenneth Simmons, Many, Watson, Murchison, Crews, Arthur & Corkern, Ronald Corkern, Natchitoches, for defendants-appellees.
Before DOMENGEAUX, LABORDE and KING, JJ.
The sole issue presented by this appeal is whether a plaintiff has a cause of action for damages against the defendant's liability insurer based on its alleged bad faith refusal to settle a claim on behalf of its insured prior to trial.
This is a tort action instituted by Maudie A. Bellah and her husband, Don W. Bellah (hereinafter plaintiffs), for damages allegedly incurred when Mrs. Bellah stepped into a hole in the driveway of Ann's Flower Shop (hereinafter the leased premises) located in Many, Louisiana. Plaintiffs sued Hollis R. Bray, the owner and lessor of the leased premises upon which Ann's Flower Shop was located, Thelma Ezernack Small and Jimmy James Small, the owners of Ann's Flower Shop and lessees of the leased premises, the liability insurer of the leased premises, State Farm Fire and Casualty Insurance Company (hereinafter State Farm), the Town of Many, and the Sabine Parish Police Jury. State Farm filed a motion to strike plaintiffs' damage claim against it for an alleged bad faith refusal to settle the damage claim against its insured. The trial court granted the Motion To Strike and a formal judgment was signed dismissing the claim of plaintiffs against State Farm. Plaintiffs timely appeal. We affirm.
Plaintiffs seek to recover damages for personal injuries suffered by Mrs. Bellah, as well as her medical expenses and loss of income, and for Mr. Bellah's loss of consortium, under legal theories of negligence and/or strict liability. Plaintiffs also seek to recover damages for the bad faith actions of State Farm as alleged in paragraph 10 of their petition:
"Defendant, State Farm Fire & Casualty Insurance Company, has purposefully, arbitrarily and capriciously prolonged settlement negotiations such as to constitute legal bad faith: including but not limited to restricting settlement discussions to quantum issues and not denying liability until approximately eleven months after the accident, so as to entitle plaintiffs to an additional award for the bad faith actions of State Farm Fire & Casualty Insurance Company."
Plaintiffs itemized their damages for this bad faith claim in paragraph 17(6) of their petition as follows:
"Bellah itemizes the damages as follows
1) Past Medical Expenses $ 5,000.00
2) Future Medical Expenses 10,000.00
3) Past, present and future loss of income 25,000.00
4) Past, present and future pain, suffering and mental anguish 100,000.00
5) Loss of Consortium 50,000.00
6) Bad Faith 250,000.00
-----------
$440,000.00 "
State Farm answered the suit on behalf of the defendants, denying liability and pleading the comparative negligence of Mrs. Bellah. Additionally, State Farm filed a pleading styled "Motion and Order to Strike" seeking a dismissal of the claim set forth in paragraph 10 and the associated damages set forth in paragraph 17(6) of plaintiffs' petition. A hearing on the matter was held on December 14, 1987, and the issue was taken under advisement. In written reasons for judgment rendered on January 12, 1988, the trial judge determined that this bad faith claim for damages against State Farm should be stricken from the petition. By judgment dated January 29, 1988, the trial judge granted the motion to strike and ordered the plaintiffs' bad faith claim for damages against State Farm dismissed with prejudice at plaintiffs' costs.
At the outset, we note that a motion to strike is not an authorized or proper way to procure the dismissal of a complaint or a cause of action. LSA-C.C.P. Art. 964; Pitre v. Opelousas General Hosp., Inc., 530 So.2d 1151 (La.1988); Adams v. N.O. Blood Bank, 343 So.2d 363 (La.App. 4 Cir.1977). However, we can still consider State Farm's claim for relief as we construe the facts set forth in their Motion To Strike as adequately alleging an exception of no cause of action. In Louisiana, we have abolished the "theory of the case" as a pleading requirement. LSA-C.C.P. Arts. 862, 1154, 2164. A party may be granted any relief to which he is entitled under the facts pled and the evidence. Cox v. W.M. Heroman & Co., Inc., 298 So.2d 848 (La.1974). Our courts look through the caption, style and form of the pleadings to determine the substance of the pleadings. Gremillion v. Rapides Parish Police Jury, 430 So.2d 1362 (La.App. 3 Cir.1983), writ den., 435 So.2d 426 (La.1983); Bryant v. Middlebrooks, 486 So.2d 188 (La.App. 1 Cir.1986).
The exception of no cause of action is a procedural device used to test whether, under the allegations of the petition, the law affords any remedy for the grievance asserted. LSA-C.C.P. Art. 931; Ward v. Pennington, 434 So.2d 1131 (La.App. 1 Cir.1983), writ den., 438 So.2d 572, 576 (La.1983); McIntyre v. McIntyre, 519 So.2d 317 (La.App. 2 Cir.1988). For purposes of ruling on an exception of no cause of action, the court must accept all allegations of the petition as true and sustain the exception only if the law affords no remedy under any evidence admissible under the pleadings. Darville v. Texaco, Inc., 447 So.2d 473 (La.1984); Stock v. East Baton Rouge City-Parish, 525 So.2d 675 (La.App. 1 Cir.1988). If the petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Pitre, supra; Stock, supra; C.O.S.T. v. St. Landry Parish School Bd., 528 So.2d 1048 (La.App. 3 Cir.1988). However, an exception to the latter rule exists when separate and distinct causes of action are set forth in one petition. Moore, Romero & Co. v. Nan Corp., 458 So.2d 675 (La.App. 3 Cir.1984); Bordelon v. Cochrane, 533 So.2d 82 (La.App. 3 Cir.1988), writ den., 536 So.2d 1255 (La.1989).
In the present case, plaintiffs assert two separate causes of action and two different demands for damages in their petition. The primary claim of plaintiffs for damages is based on several alleged acts of negligence, including defendants' failure to repair an unsafe condition and failure to warn of a potential hazard. A theory of strict liability for recovery of plaintiffs' damages is also urged on the basis that the hole in the driveway of the leased premises constituted an unreasonable risk of harm to Mrs. Bellah and others similarly situated such as to constitute a vice, defect, or ruin in the leased premises. The secondary claim, which is the subject of this appeal, is for damages against State Farm for its alleged failure to settle the claims related to Mrs. Bellah's injuries and for alleged bad faith negotiations in trying to settle the claims. Since the trial court's judgment against plaintiffs effectively disposes of this element of damages, it is a final judgment from which an appeal lies. LSA-C.C.P. Articles 1841, 2083; Peloquin v. Calcasieu Parish Police Jury, 367 So.2d 1246 (La.App. 3 Cir.1979); Rousseau v Employers Mut. of Wausau, 493 So.2d 121 (La.App. 5th Cir.1986), writ not considered, 493 So.2d 1206 (La.1986).
The following facts are alleged in the petition. On or about October 20, 1987, Mrs. Bellah fell and was injured when she stepped into a hole in the driveway of the leased premises. At the time of the accident, Mr. and Mrs. Small had in full force and effect a policy of liability insurance with State Farm which covered accidents on the leased premises.
Plaintiffs argue that they have a cause of action and can be awarded damages against an insurance company that arbitrarily and capricously refuses to settle a claim on behalf of its insured prior to trial. Defendants assert Louisiana law and jurisprudence permits no such recovery.
In Hodge v. American Fidelity Fire Ins. Co., 486 So.2d 233 (La.App. 3 Cir.1986), ...
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