Cambre v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 12 April 1976
• Docket Number: No. 10650,10650
• Citation: 331 So.2d 585
• Parties: Dorothy Kate Colclough CAMBRE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 585

331 So.2d 585

Dorothy Kate Colclough CAMBRE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.

No. 10650.

Court of Appeal of Louisiana, First Circuit.

April 12, 1976.

Rehearing Denied May 24, 1976.

Writs Refused July 2, 1976.

George R. Covert, Baton Rouge, for appellant.

Donald S. Zuber, Baton Rouge, for appellees.

Before LANDRY, COVINGTON and PONDER, JJ.

LANDRY, Judge.

Plaintiff, (Appellant), a resident of East Baton Rouge Parish, appeals dismissal of her tort action against defendants: (1) The Department of Anesthesiology of the University Hospital at Jackson, Mississippi, a Mississippi partnership (Partnership), composed of Doctors James F. Arens, Joseph Carl Gabel, Donald David Glass, Jessie G. Mullen, and Allen Tonnesen, all residents of Mississippi; (2) Dr. Joel H. Ory, a former member of Partnership, now residing in East Baton Rouge Parish, Louisiana, and; (3) St. Paul Fire and Marine Insurance Company (Insurer), medical malpractice insurer of Partnership. The trial court dismissed Appellant's action upon defendants' exceptions of lack of jurisdiction, improper venue and insufficient service of process. We affirm dismissal of Appellant's action as to all defendants except Dr. Joel H. Ory.

Appellant alleges as a cause of action that a member of Partnership negligently damaged Appellant's jugular artery during surgery on Appellant at the University Hospital, Jackson, Mississippi, on April 4, 1974, causing total paralysis of Appellant's right side.

The following operative facts are stipulated:

Insurer, is the liability insurer of the named doctors, individually and as co-partners, pursuant to policies issued in Mississippi. The alleged medical malpractice occurred in Mississippi. Partnership's domicile is in the State of Mississippi, the only state in which any of Partnership's members ever rendered medical services. It was the practice of the Partnership to render service to any Louisianan who presented himself to the hospital in Jackson, Mississippi. Partnership did not solicit business in Louisiana by advertising or any other means. At the time of surgery, Appellant's admittance chart identified Appellant as a resident of Laurel, Mississippi, listing an address, employment and referring physician in Laurel. Appellant refused to stipulate she was a resident of Mississippi at the time of surgery. Since the operation, Appellant has undergone corrective surgery in Louisiana and is presently receiving treatment in this state for her injuries. Insurer is authorized to do and does business in the State of Louisiana. Dr. Ory withdrew from the Partnership on August 15, 1974 and established both residence and domicile in Louisiana where he was living when suit was filed.

Process was served on Partnership and Dr. Ory by personal service upon Dr. Ory, individually and as Partnership representative, in East Baton Rouge Parish. Insurer was served through its legal representative, The Secretary of State, State of Louisiana.

Insurer excepted to the court's jurisdiction and peremptorily excepted to Appellant's alleged right of direct action against Insurer. Additionally, Insurer filed exceptions of res judicata and collateral estoppel predicated upon dismissal of Appellant's action against Insurer filed in the United States District Court, Middle District of Louisiana, which action was dismissed on the ground that Appellant had no right of direct action against Insurer under Louisiana law.

Partnership filed declinatory exceptions of lack of personal jurisdiction, improper venue and insufficient service of process.

Dr. Ory also filed exception to the court's jurisdiction over the Partnership and excepted to the venue as being improper for an action against the Partnership. As to the suit against him personally, Dr. Ory filed exceptions of no cause of action, no right of action and non-joinder of an indispensable party in the event the court sustained the declinatory exception of Partnership.

INSURER'S EXCEPTIONS.

As noted above, Insurer filed exceptions of lack of personal jurisdiction as to the cause of action alleged, no right of direct action against Insurer pursuant to La.R.S. 22:655 (The Louisiana Direct Action Statute) and res judicata or collateral estoppel based on dismissal of Appellant's Federal Court action against Insurer. While the trial court dismissed the action against Insurer, the record does not show which exception was sustained or why.

We find the exception of lack of a right of direct action against Insurer to have been well taken. We also find the issue thus raised does not properly address itself to the question of jurisdiction vel non but rather to the procedural right to pursue Insurer directly in the courts of this state. There can be little doubt but that Insurer, being qualified to do and doing business in Louisiana, is subject to the jurisdiction of the courts of this state. The federally required 'minimum contacts' to support jurisdiction on a constitutional due process basis are patently present in this instance. In this area, Louisiana has chosen to assert its jurisdiction pursuant to La.R.S. 22:985, which provides that a foreign insurer doing business in the state names the Secretary of State as its agent for service of process in all actions brought against the insurer in this state. The language of the cited statute has been declared sufficiently broad to include any action by a Louisiana resident against a foreign insurer, regardless of whether or not the action arises from business transacted in or out of the state. Morse v. Hartford Casualty Insurance Company, La.App., 301 So.2d 741; Smith v. Globe Indemnity Co., La.App., 243 So.2d 882.

Despite personal jurisdiction of our courts over Insurer, Appellant's action against Insurer must be dismissed because Appellant has no right of direct action against Insurer under the Louisiana Direct Action Statute, La.R.S. 22:655, which pertinently provides:

'This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not . . . provided the accident or injury occurred within the State of Louisiana.'

The broadest application of the above statute, of which we are aware, is contained in Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398, wherein the Supreme Court held a Louisiana resident entitled to bring a direct action against an insurer if the accident occurred in Louisiana or if the policy sued upon was issued or delivered in the state. Following Webb, above, several decisions have disallowed direct action against an insurer in this state when the cause of action arose in another state and the policy sued upon was neither issued nor delivered in Louisiana. See Morse v. Hartford Casualty Insurance Company, above; Kirchman v. Mikula La.App., 258 So.2d 701; Grinnell v. Garrett, La.App., 295 So.2d 496.

Since the accident in this case occurred outside Louisiana and the policy sued upon herein was neither issued nor delivered in this state, Appellant has no right of direct action against Insurer.

Appellant notes that La.R.S. 22:655 provides that the injured party may bring suit 'in the parish in which the accident or injury occurred.' It is contended that the corrective surgery and treatment performed and administered in East Baton Rouge Parish is 'injury' occurring in said parish and entitles Appellant to proceed directly against Insurer.

We reject this argument as unsound. We believe the phrase 'accident or injury' as used in the statute means, insofar as 'accident' is concerned, the act, event or circumstances which produces the harm. We believe that said phrase, insofar as 'injury' is concerned, means and refers to the harm or damages which results from defendants' negligent act. Corrective surgery or treatment required to remedy or alleviate the ill effects of medical malpractice do not, in our opinion, constitute 'injury' within the meaning of the term as contained in the statute in question.

THE PARTNERSHIP'S EXCEPTION OF LACK OF PERSONAL JURISDICTION

Constitutional due process provisions require that, for personal jurisdiction to attach to a non-resident defendant, there must be both a nexus between the non-resident defendant and the state of the forum, and adequate notice to the non-resident defendant predicated on a method fairly and reasonably designed to afford the non-resident actual notice of the litigation instituted against him. Since defendant Partnership is not domiciled in this state, has never been present in this state, has never resided here and has not consented to or waived its objection to the jurisdiction of our courts, the only possible nexus between this state and said defendant must be founded upon the Partnership's activities within the state as prescribed by our so-called Long-Arm Statute, La.R.S. 13:3201, which states:

'3201. Personal jurisdiction over non-residents

A court may exercise personal jurisdiction over a nonresident who acts directly or by an agent, as to a cause of action arising from the nonresident's

(a) transacting any business in this state;

(b) contracting to supply services or things in this state;

(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;

(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits any business, or engages in an other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or

(e) having an interest in, using, or possessing a real right or immovable property in this state.'

Application of La.R.S. 13:3201...