Hall v. Scott

• Decision Date: 25 May 1982
• Docket Number: No. 14834,14834
• Citation: 416 So.2d 223
• Parties: Mrs. Elnora HALL v. Jeanette SCOTT, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 223

416 So.2d 223

Mrs. Elnora HALL v. Jeanette SCOTT, et al.

No. 14834.

Court of Appeal of Louisiana First Circuit.

May 25, 1982.

Rehearing Denied July 13, 1982.

Paul H. Spaht, Baton Rouge, for plaintiff-appellee Mrs. Elnora Hall.

Samuel R. Cicero, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge.

Arthur H. Andrews, Baton Rouge, for defendant-appellee Jeanette Scott and Aetna Casualty & Surety Co.

Robert D. Hoover, Baton Rouge, for defendant-appellee Geraldine Bell and United States Fidelity & Guaranty Co. as Liability Insurer of Geraldine Bell only.

Frank A. Fertitta, Baton Rouge, for defendant-appellee United States Fidelity & Guaranty Co. as alleged Underinsured Motorist Carrier of Geraldine Bell.

Robert J. Vandaworker, Baton Rouge, for defendant-appellant Western Pioneer Ins. Co.

Before LEAR, CARTER and LANIER, JJ.

LANIER, Judge.

The plaintiff, Elnora Hall, is a citizen of California and she has lived there since 1949. In December of 1977, Hall came to Louisiana for a visit. On December 21, 1977, at approximately 4:40 P.M., Hall was a passenger in an automobile owned and operated by her daughter, Geraldine Bell, at the intersection of Greenwell Springs Road and North Ardenwood, in East Baton Rouge Parish, Louisiana, when there was a collision between that vehicle and an automobile being operated by Jeanette Scott. This intersection is controlled by an electric signal system. As a result of the accident, Hall received substantial injuries.

Hall filed this suit for damages in East Baton Rouge Parish. The original defendants were Jeanette Scott and her insurer, Aetna Casualty and Surety Company (hereinafter referred to as Aetna) and Geraldine Bell and her insurer, United States Fidelity and Guaranty Company (hereinafter referred to as USF&G).

Hall first amended her petition to allege that USF&G had uninsured motorist coverage on the automobile of Bell and that such coverage was applicable to her. Bell and USF&G answered and asserted a third party demand against Scott and Aetna.

Hall then filed a second amending petition joining the Parish of East Baton Rouge on the grounds that it owned the traffic signal at the intersection where the accident occurred and it was defective; joined Marbelite Co., Inc. on the grounds that it manufactured and designed the defective traffic signal system; and joined Western Pioneer Insurance Company (hereinafter referred to as Western Pioneer) on the grounds that it had issued a policy to Hall which provided uninsured motorist and medical payments coverage. This pleading also asserted a demand against USF&G under the medical payments coverage of the policy issued to Bell.

Aetna and Scott filed a third party demand against Bell and USF&G for contribution.

Western Pioneer filed declinatory exceptions pleading improper service and lack of personal jurisdiction. The exception alleged that Western Pioneer was a California corporation and did not engage in any business activities in the State of Louisiana, confined its operations completely to the State of California and did no business in Louisiana, that service on the Secretary of State of the State of Louisiana was not proper service, and that the courts of Louisiana had no personal jurisdiction. A hearing was held on these exceptions and they were overruled. Reserving all rights under the exceptions, Western Pioneer answered the suit.

Hall filed a third amending petition alleging that Western Pioneer, Aetna and USF&G were arbitrary, capricious and in bad faith in the handling of her claims. With respect to Western Pioneer, Hall alleged that she was entitled to damages for mental anguish in the amount of $100,000 and punitive damages in the amount of $250,000 plus reasonable attorney fees.

At this point in the proceedings, Hall compromised her claims against Bell and USF&G, Scott and Aetna, and Marbelite Co., Inc. This case went to trial with only three defendants: (1) Parish of East Baton Rouge; (2) USF&G as the UM carrier on the Bell automobile; and (3) Western Pioneer.

At the conclusion of Hall's evidence, the Parish of East Baton Rouge moved for a directed verdict and it was granted. No appeal has been taken from this ruling.

After completion of the trial, the case was taken under advisement. On May 1, 1981, the trial judge rendered written reasons with these findings:

1. Both Bell and Scott were guilty of negligence which was a proximate cause of the accident and Hall's damages;

2. The damages of Hall were substantial;

3. Hall was entitled to recover a judgment against USF&G under its uninsured motorist coverage of $10,000;

4. Louisiana law applies to interpret the policy of Western Pioneer;

5. Hall is entitled to "stack" the uninsured motorist coverage of $15,000 under the Western Pioneer policy so as to recover $30,000 because she had two cars in California;

6. Hall is entitled to recover $500 from Western Pioneer under the medical payments coverage;

7. Hall is entitled to recover $1,000 in penalties and attorney fees from Western Pioneer.

Judgment was rendered accordingly.

USF&G satisfied the judgment against it. Western Pioneer took this suspensive and devolutive appeal. Hall filed an answer to the appeal claiming that the trial court erred in failing to award her $100,000 for mental and emotional anguish and punitive damages in the amount of $250,000, plus reasonable attorney fees.

Western Pioneer contends that the trial court committed error by overruling its declinatory exception pleading lack of jurisdiction over the person. Western Pioneer is a California insurance company. Elnora Hall is a resident of California and the Western Pioneer policy was issued and delivered in California. There is no evidence of record to show that Western Pioneer has written insurance policies or conducted any of its business activities in Louisiana. Hall's policy with Western Pioneer contains the following language:

"1. Policy period, Territory: This policy applies only to accidents, occurrences and loss during the policy period while the automobile is within the United States of America, its territories or possessions, or Canada, or is being transported between ports thereof." (Emphasis added).

We believe that the resolution of the jurisdiction issue is controlled by the holding of our brethren in the Third Circuit in the case of Jones v. MFA Mutual Insurance Company, 398 So.2d 10 (La.App. 3rd Cir. 1981), writs refused 399 So.2d 586 (La.1981). The facts of that case are set out at page 11 of the Southern Reporter as follows:

"On February 20, 1980, Luther Thomas Jones, a resident of Alabama, was fatally injured in a one-vehicle accident on Louisiana Highway 35, in Vermilion Parish. Jones was a guest passenger in the vehicle when the driver lost control of the vehicle causing it to overturn. At the time of the accident, the vehicle was owned by Bobby G. Goss, a resident of Mississippi, and driven by Bonnie T. Williams, a resident of Alabama.

"Stephen C. Jones, a resident of Sabine Parish, Louisiana, the plaintiff in the original action, filed suit in Sabine Parish for the wrongful death of Luther Thomas Jones. Subsequently, Edna Lee Jones Oswalt, the mother of the deceased and a resident of Alabama, intervened in the suit filed by Stephen C. Jones, naming Standard Fire Insurance Company of Alabama, Luther Thomas Jones's uninsured motorist carrier, as an additional defendant. Service of process was made on the Louisiana Secretary of State and on Standard Fire by certified mail."

In Jones, supra, the trial judge overruled the uninsured motorist insurers exceptions of jurisdiction over the person. The Third Circuit granted a supervisory writ and reversed for the following reasons set forth at pages 12 and 13 of the Southern Reporter:

"It is stipulated that Standard Fire is a foreign insurance company domiciled in Alabama. It is further stipulated that Standard Fire is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana and that it has no agents or employees in Louisiana. It is also stipulated that Standard Fire's insured, Luther Thomas Jones, was a resident of Alabama and that the policy of insurance was issued and delivered in the state of Alabama.

"Jurisdiction over the person is based on service of process. LSA-C.C.P. art. 6. Louisiana's 'longarm' statute, LSA-R.S. 13:3201 1, confers personal jurisdiction over non-residents for causes of action arising under the circumstances set forth in the cited statute. In light of the stipulated facts, we conclude that the cause of action asserted by intervenor does not arise under any of the circumstances set forth in the cited statute and therefore such statute cannot be relied upon as conferring in the courts of Louisiana personal jurisdiction over Standard Fire.

"Neither can personal jurisdiction over Standard Fire be based on the 'Louisiana Motorist Longarm Statute', LSA-R.S. 13:3474. This statute provides that a non-resident and his insurer, by operating a motor vehicle on the public highways of Louisiana, are deemed to have submitted to the jurisdiction of this state and to have appointed the Secretary of State as their agent for service of process. This statute is inapplicable to the instant case because it has been stipulated that Standard Fire's insured, Luther Thomas Jones, was not the operator of the vehicle involved, but a guest passenger.

"Furthermore, the record reflects that there has been no 'minimum contacts' between Standard Fire and the state of Louisiana to satisfy due process requirements. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Adcock v. Surety ReSearch & Inv. Corp., 344 So.2d 969 (La.1977). Standard Fire has had no contact whatever with the state of Louisiana. Its only contact is that it insures persons whom it is foreseeable will travel to Louisiana and will be involved in litigation in Louisiana. The United States Supreme...