Cotton v. Patrick Kennedy, Bread Bizz, Inc.
| Decision Date | 19 September 2016 |
| Docket Number | 2015 CA 1391,C/W 2015 CA 1392 |
| Parties | JUSTIN COTTON v. PATRICK KENNEDY, BREAD BIZZ, INC., AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY NEDRA N. ROGERS, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, JAYDEN COTTON, AND TERRY COTTON v. PATRICK KENNEDY, BREAD BIZZ, INC., STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (IN ITS CAPACITY AS LIABILITY CARRIER AND UIM CARRIER), JUSTIN COTTON, AND IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
In this appeal, defendants/appellants in a consolidated suit challenge the trial court's dismissal of two co-defendants/alleged joint tortfeasors from one suit on the grant of a motion for summary judgment unopposed by plaintiffs where one of the dismissed co-defendants is a plaintiff in the companion consolidated suit in which appellants are defendants. Appellees also raise the issue of appellants' right to appeal in a motion to dismiss the appeal. For the following reasons, we deny the motion to dismiss and reverse the trial court's judgment in part.
Plaintiff Justin Cotton (hereinafter referred to as "Mr. Cotton") filed suit seeking damages from a motor vehicle accident occurring on November 2, 2012 in Baton Rouge, Louisiana. Mr. Cotton alleged that as he and Patrick Kennedy, the driver in the other vehicle, turned right in adjacent turn lanes, Mr. Kennedy veered into his lane, striking his vehicle. Mr. Cotton named as defendants Mr. Kennedy, Bread Bizz, Inc. as Mr. Kennedy's employer and the owner of the vehicle, and State Farm Mutual Automobile Insurance Company as the liability insurer (hereinafter referred to collectively as the "Bread Bizz defendants"). The passengers in Mr. Cotton's vehicle filed a separate suit. Nedra N. Rogers, individually and on behalf of her minor son, Jayden Cotton, and Terry Cotton named the Bread Bizz parties as defendants and added the following defendants: Mr. Cotton and his liability insurer, Imperial Fire & Casualty Insurance Company, and State Farm in its capacity as underinsured motorist carrier and liability carrier (hereinafter referred to as the "Cotton defendants"). Ms. Rogers and Terry Cotton specifically alleged in the alternative that if the accident was not solely the Bread Bizz defendants' fault, then Mr. Cotton was at fault.
The Bread Bizz defendants answered both suits and asserted that the soleand proximate cause of the accident was Mr. Cotton's negligence. The suits were consolidated on March 17, 2014. The Bread Bizz defendants requested a jury trial in both suits.
The Cotton defendants filed a motion for summary judgment in the Rogers suit seeking dismissal of the claims against them. On April 9, 2015, in the Cotton suit, Mr. Cotton filed a "MEMORANDUM ADOPTING AND IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT BY IMPERIAL FIRE & CASUALTY INSURANCE COMPANY and JUSTIN COTTON."1 The trial court heard arguments on the motion for summary judgment filed in the Rogers suit and granted the motion, dismissing the claims against the Cotton defendants with prejudice. From this judgment, the Bread Bizz defendants appeal. The Cotton defendants filed a motion to dismiss the appeal, contending that appellants have no right to appeal. The motion to dismiss the appeal was referred to this panel to consider with the merits of the appeal.
In their motion to dismiss the appeal, the Cotton defendants contend that only a party aggrieved by a trial court judgment has the right to an appeal, citing State, Department of Transportation & Development v. Estate of Summers, 527 So.2d 1099, 1100 (La.App. 1 Cir. 1988) and Nunez v. Canik, 576 So.2d 1080, 1083 (La.App. 3 Cir. 1991). According to the Cotton defendants, because the court did not determine liability for the accident, the factfinder is not precluded from apportioning fault to them (the Cotton defendants) at trial. Because the Bread Bizz defendants can only be found liable for their percentage of fault pursuant toLa. C.C.P. art. 2323(A) and 2324(B)2, the Cotton defendants assert that they (the Bread Bizz defendants) are not aggrieved and thus have no right to appeal. The Cotton defendants also point out that, unlike the plaintiffs, the Bread Bizz defendants did not assert any claim against them.
Louisiana Code of Civil Procedure 2082 provides that "[a]ppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court." Appeals are favored and aided by the courts. Emmons v. Agric. Ins. Co., 245 La. 411, 424, 158 So.2d 594, 599 (1963). "A party to a suit is given an unqualified right to appeal from [an] adverse final judgment and need not allege and show a direct pecuniary interest in order to be entitled to appeal." Id.; Delanzo v ABC Corp., 572 So.2d 648, 650 (La.App. 5 Cir. 1990); McCann v. ABC Ins. Co., 93-1789 (La.App. 4 Cir. 7/14/94), 640 So.2d 865, 868; Andrade v. Shiers, 516 So.2d 1192, 1193 (La.App. 2 Cir. 1987). A person need not have a judgment directly against it in order to appeal that judgment. Emmons, 158 So.2d at 599; Delanzo, 572 So.2d at 650.
The Cotton defendants' reliance on the Summers and Nunez cases ismisplaced as they are not factually analogous.3 The Bread Bizz defendants rely on the cases cited above which involve multiple defendants where the courts maintained the appeal of one defendant from a judgment dismissing co-defendants, even where the plaintiff did not appeal. In Emmons, the Supreme Court found that a set of defendants could appeal the dismissal of a co-defendant, notwithstanding the plaintiff's failure to appeal the dismissal of his claims against the dismissed party; the court reasoned that the defendants' appeal was tantamount to filing a third party action against the co-defendant where the appealing defendants could be held solidarily liable with the dismissed defendants. In Delanzo, the Fifth Circuit held that in a products liability case, a co-defendant manufacturer had a very real interest in determining whether the plaintiff could make a case against the defendant retail distributor and was an "aggrieved party" entitled to appeal the grant of summary judgment dismissing that defendant from the suit; the court noted the dismissed defendant's conduct "may have a direct bearing on the ultimate outcome of the litigation against the manufacturer." 572 So.2d at 650. In McCann, the Fourth Circuit maintained the appeal of the Louisiana Patient's Compensation Fund from a judgment granting a directed verdict in favor of the defendant physician, alleged to be solidarily liable, in a medical malpractice action. 640 So.2d at 869. In Andrade, the Second Circuit maintained the appeal of defendant homeowners from the grant of a motion for summary judgment dismissing plaintiff's demand against the homeowner's insurer, a co-defendant.
516 So.2d at 1193. The Court found that as parties defendants, the homeowners were aggrieved by the judgment that implicitly decreed that their insurer did not have a duty to defend the claim on their behalf or to pay any part of a judgment on the merits if the homeowners should be cast in judgment. Id.
However, more recent cases under the comparative fault regime control this matter. In Grimes v. Louisiana Medical Mutual Insurance Co., 2010-0039 (La. 5/28/10), 36 So.3d 215, 217, the Louisiana Supreme Court explained that when a judgment dismisses one of several cumulated actions by the plaintiff, if the plaintiff does not appeal the adverse judgment, the judgment acquires the authority of a thing adjudged. "In such cases, the filing of an appeal from the judgment of the trial court by another party only brings 'up on appeal the portions of the judgment that were adverse to [that party],' but not 'the portions of the judgment that were adverse to plaintiffs.'" Id. quoting from Nunez v. Commercial Union Ins. Co., 00-3062 (La. 2/16/01), 780 So.2d 348, 349. Grimes involved the appeal by the remaining defendants from the grant of a summary judgment in a tort suit dismissing one defendant where the plaintiff did not appeal the dismissal. 36 So.3d at 216. The court held that the appeal brought up the portions of the judgment that were adverse to the remaining appellants/defendants. Grimes, 36 So.3d at 217. The court concluded that those defendants, if they were able to prove the fault of the dismissed defendant's employee, were entitled to a reduction in judgment by the percentage of fault allocated to that defendant in accordance with the principles of comparative fault set forth in La. C.C. art. 2323(A). Id.
Based on Grimes, while the judgment granting the motion for summary judgment is final between the Rogers plaintiffs and the Cotton defendants because the Rogers plaintiffs did not oppose the motion or thereafter appeal, this Court can consider the issue of whether the Bread Bizz defendants may reduce or defeat theirliability to the Rogers plaintiffs by establishing the fault or negligence of Mr. Cotton....
To continue reading
Request your trial