Heaton v. Gulf Intern. Marine, Inc.

• Decision Date: 22 November 1988
• Docket Number: No. CA,CA
• Parties: Donald HEATON v. GULF INTERNATIONAL MARINE, INC., et al. 87 0898.
• Court: Court of Appeal of Louisiana — District of US

Page 622

536 So.2d 622

Donald HEATON v. GULF INTERNATIONAL MARINE, INC., et al.

No. CA 87 0898.

Court of Appeal of Louisiana, First Circuit.

Nov. 22, 1988.

Ronald J. Dewhirst, Houma, for plaintiff and appellee--Donald Heaton.

Paul A. Eckert and Terrence C. Forstall, New Orleans, for defendants and appellants--Gulf Intern. Marine, Inc. and American S.S. Owners Mut. Protection & Indem. Ass'n.

Before CARTER, LANIER, LeBLANC, SAVOIE and ALFORD, JJ.

LeBLANC, Judge.

Plaintiff, Donald Heaton, injured his foot on March 2, 1986, as he boarded the M/V MARK HEBERT, a vessel owned and operated by his employer, Gulf International Marine, Inc. On November 13, 1986, plaintiff filed suit against Gulf International and its insurer, American Steamship Owners Mutual Protection & Indemnity Association, Inc., seeking damages for personal injury, lost earnings, maintenance and cure and punitive damages for failure to pay maintenance and cure. On the same date, plaintiff filed a motion to reinstate maintenance and cure and requested a separate hearing on this issue. The hearing pursuant to this motion was held on April 24, 1987. The trial court rendered judgment against defendants, finding that plaintiff was entitled to past maintenance and cure in the amount of $14,693.91. ¹ The trial court also ordered defendants to pay future maintenance at the rate of $15.00 per day and future cure. In addition, American Steamship was found to be arbitrary and capricious in its failure to pay maintenance and cure and was cast in judgment for punitive damages in the amount of $50,000.00 and compensatory damages of $10,000.00. The trial court also awarded plaintiff $7,500.00 for attorney's fees and ordered defendants to pay all costs of the proceeding. ²

Defendants appealed this judgment urging that the trial court erred by:

(1) failing to sustain an exception of no right of action in favor of American Steamship,

(2) denying a continuance which was sought by defendants prior to the April 24, 1987 hearing,

(3) awarding maintenance to plaintiff,

(4) finding American Steamship to be arbitrary and capricious in its failure to pay maintenance and cure to plaintiff,

(5) awarding attorney's fees to plaintiff.

Plaintiff answered the appeal seeking an increase in punitive damages, compensatory damages and attorney's fees.

Pursuant to the first assignment of error, American Steamship contends that plaintiff has no right of direct action to proceed against it pursuant to La.R.S. 22:655. This statute provides in part that the right of direct action "... [against the insurer] 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 Louisiana Supreme Court has interpreted this language to mean that in order for an insured third party to sue a tortfeasor's insurer directly, either the accident or injury must have occurred in Louisiana or the policy must have been written or delivered in Louisiana. Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (1967).

"The burden of proof on an exception of no right of action is on the exceptor. The well-pleaded facts of the petition and the contents of attached incorporated documents and exhibits are controlling in determining both a no cause and no right of action." (citations omitted). Morris v. Rental Tools, Inc., 435 So.2d 528, 531 (La.App. 5th Cir.1983). Plaintiff's petition alleges that he is entitled to maintain a direct action against American Steamship pursuant to La.R.S. 22:655. In order to establish that plaintiff is not entitled to maintain a direct action against American Steamship, American Steamship must prove that plaintiff's injury did not occur in Louisiana and that the American Steamship insurance policy was not written or delivered in Louisiana.

In the present case, it is undisputed that plaintiff's injury occurred offshore beyond the territorial limits of Louisiana. However, the record does not establish where the American Steamship insurance policy was written or to whom it was delivered. Therefore, we find that American Steamship has not satisfied its burden of proof. The trial court did not err in failing to grant the exception of no right of action.

Defendants next contend that the trial court erred in refusing to grant a continuance that was requested prior to the April 24, 1987, hearing in this matter. On April 15, 1987, Gulf International filed a Motion to Continue and Alternative Motion To Compel. Gulf International requested that the trial on the Motion for Reinstatement of Maintenance and Cure Payments be continued until after April 24, 1987. In the alternative, Gulf International requested that the court issue an order compelling plaintiff to give his deposition and to submit to an independent medical examination. On April 24, 1987, Gulf International and American Steamship filed a Motion to Amend the Motion to Continue and Alternative Motion to Compel to include American Steamship as an additional mover in these motions. Argument on the Motion to Continue and Alternative Motion to Compel was heard on April 24, 1987. The trial court denied these motions and proceeded with the hearing on the motion for reinstatement of maintenance and cure payments.

On appeal, defendants contend that they were entitled to a continuance under the provisions of La.C.C.P. art. 1601 and 1602. La.C.C.P. art. 1602 provides "[a] continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance." When the conditions of art. 1602 are met, the granting of a continuance is mandatory. Armstrong v. State Farm Fire & Cas. Co., 423 So.2d 79 (La.App. 1st Cir.1982). An additional ground for granting a continuance is addressed in La.C.C.P. Art. 1601 which provides "[a] continuance may be granted in any case if there is good ground therefor." Under this article, a continuance rests within the sound discretion of the trial court. Sparacello v. Andrews, 501 So.2d 269 (La.App. 1st Cir.1986), writ denied, 502 So.2d 103 (La.1987).

Defendants argue that the trial court should have granted a continuance pursuant to these articles because they were unable to obtain evidence that is material to this case. Defendants contend that they were unable to secure plaintiff's deposition or to have plaintiff submit to an independent medical examination. Defendants notified plaintiff of two scheduled deposition meetings for the purpose of obtaining plaintiff's testimony and defendants notified plaintiff of two scheduled appointments with a medical doctor for the purpose of obtaining an independent medical examination. Plaintiff failed to appear for any of these scheduled appointments. Based on these attempts to obtain plaintiff's cooperation, defendants argue that they have used due diligence in attempting to obtain the material evidence they sought. Thus, they argue that the trial court erred in not granting a continuance prior to the hearing on the issue of plaintiff's entitlement to maintenance and cure.

Upon close examination of the facts of this case, we find that defendants failed to exercise due diligence in attempting to obtain plaintiff's deposition testimony prior to April 24, 1987. La.C.C.P. art. 1438 provides in part that "[a] party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action." [emphasis added] The record in this matter establishes that defendants did give notice to plaintiff of two scheduled deposition meetings for the purpose of securing plaintiff's deposition. One of the notices informed plaintiff that his deposition testimony was to be taken on February 3, 1987. However, the filing date of this notice was January 30, 1987. The record does not establish the exact date that plaintiff received this notice. However, even if he received the notice as early as the filing date, which is unlikely, plaintiff was only notified a few days in advance of the scheduled meeting. This notice was not a reasonable notice, particularly since plaintiff resided in Houma, Louisiana, and the deposition meeting was to take place in New Orleans, Louisiana. The record established that plaintiff did not own an automobile. This information was available to defendants as of November 12, 1986. Therefore defendants' notice should have allowed sufficient time for defendant to arrange transportation to the deposition proceedings. Subsequently, plaintiff received a notice on April 8, 1987, that his deposition testimony was to be taken on April 9, 1987. Again, this meeting was to take place in New Orleans. This notice to plaintiff was also unreasonable.

Since defendants failed to provide reasonable notice to plaintiff of the deposition meetings, we find that they failed to act diligently in seeking to obtain plaintiff's deposition testimony. Therefore, a continuance for the purpose of obtaining plaintiff's deposition testimony was not mandated by art. 1602.

We also find that defendants failed to exercise due diligence in attempting to secure an independent medical examination of plaintiff. La.C.C.P. art. 1464 provides in part: "When the mental or physical condition of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician ..." Defendants argue that they exercised due diligence in attempting to have plaintiff submit to an independent medical examination. They contend that two medical examination appointments were scheduled with a physician located in New Orleans but that plaintiff refused to appear on both occasions. The dates of these...