Jones v. MFA Mut. Ins. Co.

• Decision Date: 04 February 1981
• Docket Number: No. 8154,8154
• Citation: 398 So.2d 10
• Parties: Stephen C. JONES v. MFA MUTUAL INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 10

398 So.2d 10

Stephen C. JONES v. MFA MUTUAL INSURANCE COMPANY et al.

No. 8154.

Court of Appeal of Louisiana, Third Circuit.

Feb. 4, 1981.

Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-relator.

Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-respondent.

John G. Williams, Natchitoches, Harry A. Johnson, Shreveport, for defendants-respondents.

Before GUIDRY, DOUCET and LABORDE, JJ.

LABORDE, Judge.

On November 14, 1980, we granted a writ of certiorari in this case on the application of Standard Fire Insurance Company of Alabama (Standard Fire) to review the correctness of a ruling of the district court overruling Standard Fire's exceptions of jurisdiction over the person, improper service of process, improper venue, and improper cumulation of actions.

STATEMENT OF THE CASE

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.

It is stipulated that Standard Fire Insurance Company of Alabama is a foreign insurance company domiciled in Alabama and is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana, nor does it have any agents or employees living or working in Louisiana.

Standard Fire, as defendant in intervention, filed exceptions of lack of jurisdiction over the person, improper service of process, improper venue and improper cumulation of actions. It seeks supervisory relief from the judgment of the trial court overruling these exceptions.

SUPERVISORY RELIEF

The exercise of supervisory jurisdiction by appellate courts is within their plenary power. La.Const. 1974, Art. 5, § 10. Appellate courts will not exercise such jurisdiction unless an error in the trial court's ruling will cause the petitioner irreparable injury or an ordinary appeal will not afford an adequate remedy. Supervisory Powers of the Louisiana Courts of Appeal, Albert Tate, Jr., 38 Tul.L.Rev. 429.

Generally, the courts of appeal deny writ applications complaining of the overruling of exceptions on the basis that the relator may win on the merits or may obtain adequate relief on appeal after trial on the merits. However, this policy is not absolute, for the appellate court may, in its discretion, grant applications for supervisory writs in the interest of efficient judicial administration and fundamental fairness to the litigants. Mangin v. Auter, 360 So.2d 577 (La.App. 4th Cir. 1978).

ON THE MERITS

Standard Fire has been joined as a defendant to this suit pursuant to the Louisiana Direct Action Statute, LSA-R.S. 22:655. However, this statute merely provides a right of action against insurance companies. Therefore, an independent basis of jurisdiction must exist before a non-resident insurer can be sued under the Direct Action Statute. See Morse v. Hartford Casualty Ins. Co., 301 So.2d 741 (La.App. 3rd Cir. 1974); McKeithen v. M/T Frosta, 435 F.Supp. 572 at 576 (U.S.D.Ct., La.1977). In Morse, supra, at page 743 we stated:

"The quoted statute is not jurisdictional. Instead the cited provisions deal with venue. In Davis v. Hanover Insurance Company, 289 So.2d 292 (La.App. 3 Cir. 1974), we discuss the venue granted by LSA-R.S. 22:655 holding that C.C.P. art. 42 did not incorporate the exceptions provided in C.C.P. arts. 71-83.

... The Direct Action Statute is not a legislative grant of jurisdiction. It merely gives claimant a direct right of action and a method for enforcing their right against liability insurers when they have a cause of action against the insured, or where the insured would be liable but for an immunity personal to him. Weingartner v. Fidelity Mutual Insurance Company, 205 F.2d 833 (5th Cir. 1953); Taylor v. Fishing Tools, Inc., 274 F.Supp. 666 (U.S.D.C.La., E.D.1967). There must be an independent legislative grant of jurisdiction which satisfies due process requirements of "minimum contacts", together with service of process, before a claimant may utilize this right of direct action against the liability insurer."

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...