Chatoney v. Safeway Ins. Co.

• Decision Date: 13 June 2001
• Docket Number: No. 00-1189.,00-1189.
• Citation: 801 So.2d 448
• Parties: Natalie C. CHATONEY v. SAFEWAY INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 448

801 So.2d 448

Natalie C. CHATONEY v. SAFEWAY INSURANCE COMPANY.

No. 00-1189.

Court of Appeal of Louisiana, Third Circuit.

June 13, 2001.

Writ Denied November 2, 2001.

Barry A. Roach, Attorney at Law, Lake Charles, LA, Counsel for Plaintiff/Appellee, Natalie C. Chatoney.

Robert Voitier, Jr., Boone, Wilkes & Brady, LLP, Attorney at Law, Lafayette, LA, Counsel for Defendant/Appellant, Safeway Ins.

Edward K. Bauman, Attorney at Law, Lake Charles, LA, Curator for Jeff Brown.

Court composed of ULYSSES GENE THIBODEAUX, JIMMIE C. PETERS and ELIZABETH A. PICKETT, Judges.

PICKETT, Judge.

FACTS

The accident giving rise to this litigation occurred at the intersection of Sale Road and Hodges Street in Lake Charles, Louisiana, on August 7, 1998. A vehicle driven by Jeff Brown struck the rear of Natalie C. Chatoney's 1986 Cadillac Sedan DeVille as she waited to make a left turn from Sale Road onto Hodges Street. The impact of the collision propelled Ms. Chatoney's vehicle into the opposite lane of Sale Road, where a 1993 Volvo driven by Jonathan Walker collided with Ms. Chatoney's Cadillac. Both Ms. Chatoney's and Mr. Walker's vehicles sustained damage as a result of this collision.

Mr. Brown did not own the vehicle he was driving, but Safeway Insurance Company of Louisiana (Safeway) provided liability insurance coverage for the vehicle. Thus, Mr. Brown was an omnibus insured under the Safeway policy.

Ms. Chatoney filed suit against Jeff Brown and Safeway to recover damages she sustained in the automobile accident. Additionally, she sought recovery against Safeway for its alleged failure to properly adjust her claim as required by La.R.S. 22:658 and La.R.S. 22:1220. Safeway timely answered Ms. Chatoney's October 19, 1998, suit.

Attempts to serve Jeff Brown proved unsuccessful. On March 8, 1999, Ms. Chatoney sought and received from the trial court an appointment of an attorney to represent Mr. Brown. The appointed attorney filed a general denial answer.

Immediately before the trial on the merits began, counsel for Safeway and the appointed attorney filed separate handwritten pleadings entitled "EXCEPTION OF LACK OF PERSONAL JURISDICTION AND/OR INSUFFICIENCY OF SERVICE OF PROCESS," wherein each attorney asserted that the trial court did not have jurisdiction over Mr. Brown and that service of process on Mr. Brown was insufficient. The trial court took the exceptions under advisement and began the trial. Ultimately, the trial court denied both motions.

Following a trial on the merits, the trial court found Mr. Brown at fault in causing the accident and found that Ms. Chatoney suffered the following damages: $20,000.00 in general damages, $5,186.25 in medical expenses, $1,008.00 in lost wages, $600.00 for the loss of the use of her vehicle, and $4,000.00 in property damages to her vehicle. The trial court rendered judgment against Mr. Brown to the full extent of Ms. Chatoney's damages and against Safeway to the extent of its policy limits: $10,000.00 in general damages and $1,518.01 as Ms. Chatoney's prorated share of the property damages coverage. The trial court rejected Ms. Chatoney's demand against Safeway for statutory penalties and attorney fees.

From this judgment, Mr. Brown filed this appeal. Ms. Chatoney answered the appeal, addressing only the trial court's denial of her claim for statutory penalties and attorney fees against Safeway.

DISCUSSION

EXCEPTION OF NO RIGHT OF ACTION

Mr. Brown's appeal was not filed by his appointed attorney, but was filed by counsel for Safeway. Ms. Chatoney initially responded to the appeal by filing an exception of no right of action in which she asserted that Safeway had "no right of action or interest to institute this [appeal] due to lack of procedural capacity to act on behalf of [Mr. Brown]." Ms. Chatoney asserts that Safeway had no attorney-client relationship with Mr. Brown because it had not represented him at the trial level and had judicially admitted it did not know of his whereabouts.

Safeway responded to the exception by asserting that it had both a right and a duty under its policy of liability insurance to defend Mr. Brown. The policy provides that Safeway "shall defend any suit alleging. . . bodily injury or property damage and seeking damages which are payable under the terms of this policy" with respect to an insured under the policy. It further provides that the definition of "insured" includes the named insured as well as "any other person using [the insured automobile] to whom the named insured has given permission, provided the use is within the scope of such permission."

Safeway was placed in an unusual and difficult position. Its duty to defend under its policy "is not qualified, limited or restricted in any manner whatsoever." Reichert v. Continental Ins. Co., 290 So.2d 730, 733 (La.App. 1 Cir.), writ denied, 294 So.2d 545 (La.1974). Had Safeway answered on behalf of Mr. Brown at the trial level it would have waived the personal jurisdiction issue for him. Its duty to defend at the trial level amounted to little more than protection of his personal jurisdiction issue for him. When this defense failed, Safeway was then required to consider its obligation toward Mr. Brown in this appeal. "[An] insurer's obligation to defend includes the duty to appeal judgment adverse to the insured where there appears reasonable grounds for taking an appeal." Id.

While Safeway must exhaust its policy limits in payment to Ms. Chatoney, Mr. Brown has reasonable grounds to take an appeal. Safeway's obligation under its insurance policy requires it to protect those reasonable grounds. We find no merit in Ms. Chatoney's exception of no right of action and will consider the merits of Mr. Brown's appeal.

PERSONAL JURISDICTION ISSUE

Appellant argues two assignments of error. First he argues the trial court erred by finding it had personal jurisdiction over Jeff Brown and, second, the trial court erred by finding that Jeff Brown had notice of the litigation pending against him as required by La. Const. art. I, § 2, and by the Fourteenth Amendment to the United States Constitution.

Officer Mike Weaver of the Lake Charles Police Department investigated the accident and testified that he recorded Mr. Brown's address on his accident report as 1613 Clover Street in Lake Charles. He testified he normally obtained such information from an individual's driver's license.

After suit was filed, the Calcasieu Parish Sheriff's Office attempted service on Mr. Brown on October 23, 1998, and again on October 26, 1998, and filed its return with the notation "unable to locate." The Sheriff's return contains a typed address of "1613 Clover Street," the address provided by appellee's counsel in its original petition. That address is marked through with a pen and, written next to it, is "2126 6th St." The sheriff's return does not indicate whether the officer attempted to serve Mr. Brown at one or both addresses. The trial court made a finding of fact that Mr. Brown in fact was carrying a Louisiana driver's license and was residing at the Clover St. address at the time of the accident. The record supports that finding.

On March 8, 1999, an attorney was appointed to represent Mr. Brown pursuant to the provisions of La.Code Civ.P. art. 5091(A)(1)(a). The appointed attorney was personally served by the sheriff's office on March 26, 1999.

On April 9, 1999, the appointed attorney filed an answer wherein he asserted that despite diligent efforts he had been unable to locate Mr. Brown. He asked to be relieved of his responsibilities in connection with this lawsuit, however, no action was taken on that request. The appointed attorney had filed an advertisement in the local newspaper seeking information as to the whereabouts of Mr. Brown. He had received no information.

On April 27, 1999, the appointed attorney filed an amended answer wherein he again stated he was unable to locate Mr. Brown. He withdrew his request to be relieved of his appointment and entered a general denial as to the allegations of the petition.

Not until immediately prior to trial on the merits did the appointed attorney and counsel for Safeway file an "EXCEPTION OF LACK OF PERSONAL JURISDICTION AND/OR SUFFICIENCY OF SERVICE OF PROCESS." The trial court ultimately rejected this exception.

TIMELINESS OF EXCEPTIONS

Exceptions of lack of personal jurisdiction and insufficiency of service of process are declinatory exceptions. La.Code Civ.P. arts. 6(A)(3), 925, and 928 provide that declinatory exceptions must be filed prior to or in the answer to a suit or they are waived.

La.Code Civ.P. art. 6 provides in pertinent part:

A. Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. The exercise of this jurisdiction requires:

....

(3) The submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to jurisdiction by failure to timely file the declinatory exception.

La.Code Civ.P. art. 925 provides in pertinent part:

A. The objections which may be raised through the declinatory exception include but are not limited to the following:

....

(2) Insufficiency of service of process

....

(5) The court's lack of jurisdiction over the person of the defendant.

La.Code Civ.P. art. 928 provides as follows:

A. The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer ....

The declinatory exceptions filed in the instant matter were filed subsequent to filing both an answer and an amended answer. Indeed, they were filed immediately prior to commencement of trial. Because they were untimely filed, these exceptions are waived. We find no exception under our law which would apply to litigation wherein counsel is appointed by the court rather than retained. Because we find the exception of lack of personal jurisdiction and the exception of...