Chesne v. Mayeaux

• Decision Date: 05 November 2003
• Docket Number: No. 03-0570.,03-0570.
• Citation: 865 So.2d 766
• Court: Court of Appeal of Louisiana — District of US
• Parties: Amy CHESNE v. Mark M. MAYEAUX, et al.

865 So.2d 766

Amy CHESNE v. Mark M. MAYEAUX, et al.

No. 03-0570.

Court of Appeal of Louisiana, Third Circuit.

November 5, 2003.

Russell L. Potter, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellants, Lafayette Insurance Company, Mark M. Mayeaux.

Larry A. Stewart, Mark D. Pearce, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellants, State Farm Mutual Automobile Insurance.

Kirk L. Landry, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Appellee, Valley Forge Insurance Company.

Brian M. Caubarreaux, Brian Caubarreaux and Associates, Marksville, LA, for Plaintiff/Appellee, Amy Chesne.

Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.

AMY, Judge.

Plaintiff seeks damages for injuries arising from an automobile accident in Rapides Parish in which her vehicle was struck by a vehicle driven by Defendant Mark Mayeaux. Plaintiff filed suit in Avoyelles Parish, the parish of her domicile, against Mayeaux, his employer, and his employer's insurer, against Plaintiff's employer's insurer, and against Plaintiff's own uninsured motorist carrier. She then voluntarily dismissed her uninsured motorist carrier, and, eight months later, Defendants filed a declinatory exception of improper venue. Before the hearing on the exception took place, Plaintiff filed an amended and supplemental petition in which she renamed her uninsured motorist carrier as a defendant. The hearing on the exception occurred thereafter, and the trial judge found that venue was proper in Avoyelles Parish. Defendants Mark Mayeaux and Lafayette Insurance Company appeal the trial judge's ruling. For the following reasons, we affirm.

Factual and Procedural Background

This appeal comes to us from an ongoing personal injury suit in the District Court for Avoyelles Parish. The accident from which the instant matter arose occurred on or about May 22, 2001, in the South Traffic Circle in Alexandria, Louisiana. Ms. Amy Chesne, Plaintiff herein, alleges that she was proceeding around the South Traffic Circle on her way to purchase office supplies, when Defendant, Mark Mayeaux, entered the traffic circle and struck Ms. Chesne's vehicle with his van. Mr. Mayeaux, a resident and domiciliary of New Orleans, was in Alexandria on business and was in the course and scope of his employment when the accident occurred. Custom Cabinets, Mr. Mayeaux's employer and the owner of the van, had its principal place of business in Harahan, Jefferson Parish, Louisiana.

Ms. Chesne filed a personal injury claim on February 5, 2002, in Avoyelles Parish, the parish of her domicile. Named defendants were Mr. Mayeaux, Custom Cabinets, ABC Insurance Company (Ms. Chesne's employer's uninsured motorist carrier), Lafayette Insurance Company (Custom Cabinets' insurer), and State Farm, Ms. Chesne's uninsured motorist carrier.

The record contains scant evidence of discovery over the following months. There is no evidence that Custom Cabinets was served; likewise, it appears that ABC Insurance Company's identity was never ascertained, and Plaintiff's claims against it were not pursued. On June 5, 2002, Ms. Chesne requested a partial judgment of voluntary dismissal without prejudice in favor of State Farm. This dismissal was granted by the trial judge. The record indicates that between May 22, 2002, and January 15, 2003, Ms. Chesne's attorney sent two requests for production to Lafayette Insurance in New Orleans in an effort to determine the limits of Custom Cabinets' employee policy. The record reflects that Plaintiff's counsel had been advised informally that Custom Cabinets had a $500,000 policy, but no information was forthcoming about the coverage provided by an umbrella policy.

On January 15, 2003, some eight months after the conditions for the exception became ripe, Defendants Mayeaux and Lafayette Insurance Company filed a declinatory exception of improper venue, asserting that when Ms. Chesne voluntarily dismissed State Farm, her uninsured motorist carrier, from the suit, venue in Avoyelles Parish was no longer proper. Defendants asked that the case be dismissed, or, in the alternative, that it be transferred to Rapides Parish by operation of La.Code Civ.P. art. 121.

On January 22, 2003, seven days after the exception of improper venue was filed, Ms. Chesne filed a pleading styled "First Amended and Supplemental Petition for Damages," in which she added State Farm as a defendant without providing any supporting allegations. Ms. Chesne also filed a Motion to Compel, asking the trial judge to order Lafayette Insurance to respond to inquiries regarding Custom Cabinets' insurance policy. The trial judge signed an order allowing Ms. Chesne's amended and supplemental petition on January 23, 2003.

The transcript of the March 2003 hearing on the exception evinces the defendants' concession that venue was proper in Avoyelles Parish when Ms. Chesne's suit was originally filed pursuant to La.Code Civ.P. art. 76 and the interpretive jurisprudence. However, the defendants argued, when Ms. Chesne voluntarily dismissed State Farm without prejudice and subsequently brought it back into the suit as a defendant, it was done solely for the purpose of establishing venue, and, pursuant to La.Code Civ.P. art. 73(B), venue established in this manner is improper. The defendants contended that the only way that venue would remain viable in Avoyelles Parish would be if Ms. Chesne's dismissal of State Farm constituted a settlement or compromise under La.Code Civ.P. art. 73(B). The defendants insisted that Ms. Chesne's dismissal of State Farm did not constitute such a compromise. Furthermore, the defendants contended, the timing of Ms. Chesne's amended and supplemental petition—a mere seven days after the exception of improper venue was filed—gave rise to a reasonable assumption that State Farm had been added solely for the purpose of establishing venue in Avoyelles Parish. The defendants pointed out that Ms. Chesne's uninsured motorist coverage through State Farm only provided benefits of $10,000, compared to the $1.5 million in total coverage provided by the Lafayette Insurance policy ($500,000 accident coverage with a $1,000,000 umbrella policy), and that the record was devoid of any evidence that would prompt Ms. Chesne to reinstitute litigation against State Farm out of concern that Mr. Mayeaux was an underinsured motorist.

Ms. Chesne's attorney explained at the hearing on the exception that State Farm was dismissed out of concern for judicial economy and because the Lafayette Insurance policy coverage appeared to be sufficient. However, he noted, it became necessary to bring State Farm back into the suit because Ms. Chesne's injuries were still being treated, and he was uncertain as to whether Custom Cabinets' insurance policy would be sufficient to cover Ms. Chesne's medical expenses. The hearing transcript indicates that Ms. Chesne's attorney acknowledged that he knew of the $500,000 policy but had not yet been informed of the full amount of coverage available (the umbrella policy); as a result, he felt it would be prudent to bring State Farm back into the suit.

The record reflects that the defendants called the attorney for State Farm who had discussed the voluntary dismissal with Ms. Chesne's attorney to testify as to the monetary details of their agreement. The witness explained that as State Farm's attorney, he obviously desired to have his client dismissed from the suit, but he neither disbursed any funds nor gave any other consideration in exchange for the dismissal. Furthermore, an examination of the record reveals that there was no written memorialization of a settlement or compromise between Ms. Chesne and State Farm—the agreement was made via phone.

After considering the evidence, the trial judge denied the defendants' exception, stating that he found that State Farm and Ms. Chesne had reached a valid compromise leading to State Farm's dismissal without prejudice. He also noted that Ms. Chesne had named her uninsured motorist carrier as a defendant in her original petition, which, he explained, is customary practice for plaintiffs at the beginning of a suit when discovery hasn't yet taken place and uncertainty exists as to the adequacy of the defendant's insurance coverage. Therefore, he concluded, State Farm hadn't been added solely for the purpose of creating venue, and, pursuant to La.Code Civ.P. art. 73(B), venue was proper in Avoyelles Parish.

Defendants Mark Mayeaux and Lafayette Insurance Company appeal the trial judge's ruling. In their sole assignment of error, the defendants submit that the trial judge erred in denying their exception of improper venue.

Discussion

Defendants Mark Mayeaux and Lafayette Insurance Company argue on appeal that the trial judge erred in denying the exception of improper venue and request that Ms. Chesne's suit be dismissed without prejudice. They maintain that when Ms. Chesne dismissed State Farm, venue in Avoyelles Parish was no longer proper. The defendants have enunciated two subparts to this argument, viz., (1) State Farm was not dismissed pursuant to a compromise, and (2) renaming State Farm as a defendant after the defendants excepted to venue has no legal effect.

In her reply, Ms. Chesne asserts that she was unaware of the existence of Custom Cabinets' umbrella policy prior to filing the supplemental and amended petition that reinstated her uninsured motorist carrier as a defendant. Furthermore, she cites the Louisiana Supreme Court's decision in Farrar v. Haedicke, 97-2923 (La.12/2/97), 702 So.2d 690, in support of her contention that the defendants must show that Ms. Chesne renamed State Farm as a defendant in bad faith. She suggests that the defendants are unable to produce such evidence because doing so "would require [them to] show that reasonable information was received by the plaintiff and/or plaintiff's counsel prior to the pleading...