Hobbs v. Fireman's Fund American Ins. Companies

• Decision Date: 21 October 1976
• Docket Number: No. 5610,5610
• Citation: 339 So.2d 28
• Parties: Thomas A. HOBBS, Plaintiff-Appellee, v. FIREMAN'S FUND AMERICAN INSURANCE COMPANIES et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 28

339 So.2d 28

Thomas A. HOBBS, Plaintiff-Appellee, v. FIREMAN'S FUND AMERICAN INSURANCE COMPANIES et al Defendants-Appellants.

No. 5610.

Court of Appeal of Louisiana, Third Circuit.

Oct. 21, 1976.

Rehearings Denied Nov. 30, 1976. ^*

Writs Refused Feb. 3, 1977.

Ford & Nugent, by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee, Hobbs.

Gold, Hall, Hammill & Little, by Eugene Sues, Alexandria, for defendant-appellant, Fireman's Fund.

Allen, Gooch & Bourgeois, by Arthur Robison, Lafayette, for defendant-appellant, Reserve Insur. Co.

McLure & McLure, by John G. McLure, Alexandria, for defendant-appellee, Succ. of Lois Phillips.

William E. Skye, Alexandria, for defendant and third party plaintiff-appellant, Herman W. Phillips.

Stafford, Randow, O'Neal & Scott by Grove Stafford, Jr., Alexandria, Gist, Methvin & Trimble, by David A. Hughes, Alexandria, Polk, Foote, Randolph, Percy & Ledbetter, by J. Michael Percy, Alexandria, Hall, Coltharp & Lestage, by H. O. Lestage, III, DeRidder, for defendant-appellee.

Before HOOD, MILLER and WATSON, JJ.

MILLER, Judge.

Defendants (H. W. Phillips, his primary insurer Fireman's Fund American Insurance Company and his excess insurer third-party defendant Reserve Insurance Company, and the Succession of Lois Phillips) appeal the judgment holding them liable in solido to plaintiff Thomas A. Hobbs for $234,423.34 and ordering both insurers to pay $6,839.50 attorney fees to Phillips' attorney as the cost of his defense. Except for recasting the judgment to recognize that Reserve was not sued by Hobbs, and to tax Fireman's Fund with all court costs and for Phillips' attorney fees, we affirm.

This matter was first before us on appeal from a summary judgment dismissing Hobbs' claim. Hobbs v. Fireman's Fund American Insurance Company, 293 So.2d 608 (La.App. 3 Cir. 1974), writs denied, La., 296 So.2d 832.

On November 28, 1971 Hobbs was severely injured while riding as a guest passenger in his father's Camaro Chevrolet which was being driven by Mrs. H. W. (Lois) Phillips. Southern Farm Bureau Casualty Insurance Company placed in the registry of court the $10,000 limits of coverage provided by its policy covering the Camaro. Hobbs sued Phillips and his primary insurer Fireman's Fund and the Succession of Lois Phillips. Phillips filed third-party actions against Fireman's Fund and his excess coverage insurer, Reserve, and claimed attorney fees from both Fireman's Fund and Reserve for his defense.

MOTION TO DISMISS APPEALS

H. W. Phillips' attorney moved to dismiss the appeals insofar as they relate to his third-party demands, urging three contentions: 1) The bond filed by Fireman's Fund is insufficient to cover all awards in the trial court's final judgment; 2) Reserve did not sign its bond; therefore this court is without jurisdiction; 3) Although both insurers appealed the May 11, 1976 judgment, the trial court had previously signed judgments holding both insurers liable for the cost of Phillips' defense; Phillips contends these judgments (of March 17, 1974 and July 9, 1975) were final judgments, and insurers failed to timely perfect appeals from those judgments. We reject all three.

The motions to dismiss the appeals were filed after the three-day delay provided by LSA-C.C.P. art. 2161. In this situation, we review only the jurisdiction of this court to hear the appeal or the right of the appeal itself. LSA-C.C.P. art. 2162.

The record does not indicate that the alleged defects in the bonds have been questioned prior to the filing of this motion to dismiss in this court. The sufficiency of Fireman's Fund's appeal bond should have been tried by rule to show cause in the trial court; this would have allowed appellants an opportunity to substitute a proper bond in the event the original bonds were found insufficient. LSA-C.C.P. art. 5123. The trial court retains jurisdiction for testing the validity or sufficiency of the bond. Appeals may not be dismissed on the ground of insufficient or defective bond unless the party who furnished the bond is first afforded an opportunity to furnish a new or supplemental bond (LSA-C.C.P. arts. 5123--5125) by proceedings filed in the trial court. LSA-C.C.P. art. 2088; Wilks v . Allstate Insurance Company, 191 So.2d 663 (La.App. 3 Cir. 1966), and cases cited therein at 191 So.2d 664.

The motion to dismiss Reserve's bond is predicated on the holding in Guilliot v. City of Kenner, 326 So.2d 359 (La.1976). It was there held that the Court of Appeal is empowered to determine whether what purports to be a bond is, in fact, a bond. In Guilliot, no one signed either the bond or the accompanying affidavits. In the instant case, the documents were signed by the surety on Reserve's bond. There is a bond, and the test of the alleged defects of that bond should have been made in the trial court. LSA-C.C.P. art. 5123, et seq.

Since the sufficiency and validity of the bonds were not contested in the trial court, the motion to dismiss the appeals on those grounds has no merit.

The third basis for dismissal is founded on two arguments. First, that although the trial court signed one final judgment on May 11, 1976, that judgment was in effect two judgments--one on the main demand and one on the third-party demand. Mover relies on Perot v. United States Casualty Co., 98 So.2d 584 (La.App. 2 Cir. 1957). We distinguish Perot; in Perot, there were two separate judgments signed on different days. The appeal from the first judgment was not timely perfected. In the instant case there was only one trial, one opinion, one signed judgment (which disposed of both the main and third-party demands), and one order of appeal granted each appellant. The appeals were timely perfected as to all phases of the May 11, 1976 final judgment. Appeals are favored and will not be dismissed for technicalities. McCann v. Todd, 201 La. 953, 10 So .2d 769 (1942).

The second argument contends that the March 17, 1974 and July 9, 1975 judgments (holding that the insurers would be responsible to Phillips for his cost of defending the claim) were final judgments. We reject that contention because those were interlocutory judgments. LSA-C.C.P. art. 1841.

Attorney's fees earned in connection with litigation on the main and/or third-party demand are preliminary matters and judgments relating to attorney's fees do not dispose of the merits of the claim. Anderson v. Southern Consumers Education Foundation, Inc., 196 So.2d 686 (La.App. 3 Cir. 1967). The preliminary judgments did not fix the number of hours worked by Phillips' attorney and did not aware a specific fee. Being interlocutory decrees which did not expose the insurers to irreparable harm, the decrees were not appealable at the time. LSA-C.C.P. arts. 1841, 2083. The first judgment which named a specific dollar aware for the attorney's fees was the May 11, 1976 judgment, and the appeals from the decree were timely perfected. The preliminary or interlocutory judgments had to await rendition of a final appealable judgment on the merits. People of Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752 (La.1968); Texas Gas Transmission Corp. v. Soileau, 251 So.2d 104 (La.App. 3 Cir. 1971).

ON THE MERITS

A summary of some of the facts brought out during the extended trial is necessary to understand the relationship of the litigants. Mr. and Mrs. Herman Wesley Phillips owned a valuable farm and lovely home located thereon in Walls, Mississippi just outside the city of Memphis, Tennessee. Over a long term, Mr. Phillips successfully operated his large trucking concern and his wife Lois was a key employee in the business. Their oldest child (about 21 years old at the time of this accident) is retarded; some two years before this accident, their second son, a teenager, was killed while driving his car; their teenage daughter is their third child. Shortly after their teenage son was killed, the Phillips employed Hobbs to help them look after their retarded son; Hobbs was about the age of their son who had been killed.

Because of Mr. Phillips' drinking problem Mr. and Mrs. Phillips had separated on at least three occasions prior to the September 17, 1971 separation which is particularly relevant here. During each of the prior separations Mrs. Phillips was well supported by her husband; she took the children with her and spent considerable time making special arrangements to care for their retarded son. Mrs. Phillips also attempted to continue working in her husband's trucking business, for her expertise was indispensible to the successful operation. Before the last separation the Phillips had discussed the favorable accommodations available for their retarded son near Mrs. Phillips' birthplace in Louisiana.

Hobbs lived in the Phillips' home in order to better care for their retarded son. Hobbs and the Phillips' teenage daughter began to interest one another; a continuing personal conflict arose between Hobbs and Mr. Phillips; that conflict together with Phillips' drinking problem precipitated the September 17, 1971 separation and the one before that.

On September 17, angry words were exchanged between Hobbs and Phillips in the course of which both parties were armed. The row ended in typical fashion--Mrs. Phillips packed some of her personal clothing and a few essential items and left. She took the retarded son with her in her new Chevrolet station wagon; her daughter came along in her own new Pontiac LeMans (both vehicles were listed in Phillips' insurance policies); and Hobbs came along in his father's Camaro which had been purchased for Hobbs use. The group drove to Mrs. Phillips' birthplace, Rapides Parish, Louisiana, and stayed with one of her brothers until she could rent a house. Upon arrival in Louisiana, Mrs. Phillips placed her retarded son in a special home for retarded children and enrolled her daughter in a trade school. She opened a checking account in an Alexandria bank and purchased some furniture from a...