Koonce v. St. Paul Fire & Marine Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: SAUNDERS, Judge.
• Citation: Koonce v. St. Paul Fire & Marine Ins. Co., 172 So.3d 1101 (La. App. 2015)
• Decision Date: 05 August 2015
• Docket Number: No. 15–31.,15–31.
• Parties: Draughn KOONCE v. ST. PAUL FIRE & MARINE INS. CO., et al.

172 So.3d 1101

Draughn KOONCE

v.ST. PAUL FIRE & MARINE INS. CO., et al.

No. 15–31.

Court of Appeal of Louisiana, Third Circuit.

Aug. 5, 2015.

Rehearing Denied Sept. 23, 2015.

Robert C. McCorquodale, In House Counsel, Lake Charles, LA, for Defendant/Appellee, Calcasieu Parish Sheriff's Office, Calcasieu Parish Unnamed Sheriff Deputy.

John Ezell Jackson, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant, Draughn Koonce.

Vernon Ed McGuire, III, Plauche', Smith & Nieset, Lake Charles, LA, for Defendant/Appellee, St. Paul Fire & Marine Ins. Co.

Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.

Opinion

SAUNDERS, Judge.

Plaintiff, Draughn Koonce (hereafter “Appellant”), appeals from the trial court's grant of summary judgment in favor of Defendants, Tony Mancuso, individually and in his official capacity as the Sheriff of Calcasieu Parish, and his insurer, St. Paul Fire and Marine Insurance Company (hereafter collectively “Appellees”) and denial of Appellant's motion to strike Appellees' supplemental and amended answer and affirmative defenses. For the reasons that follow, we affirm the trial court's judgment in all respects.

FACTS AND PROCEDURAL HISTORY:

Appellant was an inmate at the Calcasieu Correctional Center. On September 22, 2005, as Hurricane Rita approached land, a school bus driven by Deputy Ryan Lavergne (hereafter “Lavergne”) was transporting prisoners, including Appellant, for evacuation when it crashed into the rear end of another school bus that was also transporting prisoners for evacuation.

On September 22, 2006, Appellant filed a petition for damages against Appellees, alleging he sustained personal injuries in the crash. Appellees answered on October 24, 2006. Thereafter, no action was taken on the case by either party for a substantial length of time. On January 22, 2014, Appellant filed a first supplemental and amending petition for damages. Appellees filed an answer on February 22, 2014, raising the affirmative defenses of immunity under La.R.S. 29:735, and La.R.S. 9:2800.17.

On March 26, 2014, Appellant filed a motion to strike Appellees' answer and affirmative defenses, asserting that Appellees' answer was not timely, having been filed into the record thirty-one days after Appellant filed his supplemental and amending petition, and that there were “no allegation of new facts ... that justified the assertion of these new affirmative defenses at such a late date.” Appellees then filed a motion for summary judgment on June 6, 2014, asserting immunity pursuant to the above-cited statutes. A hearing on the motions of both parties was held on June 24, 2014, after which the trial court denied Appellant's motion to strike, granted summary judgment in favor of Appellees, and dismissed the claims of Appellant. It is from this judgment that this appeal arises.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Appellant contends the trial court legally erred in “apply[ing] a liberal construction” of La.R.S. 29:735 “to the facts at hand” and in concluding that “willful misconduct” required that there be “some type of specific intent ... to cause some type of injury or harm. Thus, he contends that the trial court erred in granting Appellees' motion for summary judgment.

Standard of Review

An appellate court reviews de novo the ruling of the trial court on a motion for summary judgment. Covington v. McNeese State Univ., 08–505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09–69 (La.3/6/09), 3 So.3d 491. “[T]he same criteria that govern a trial court's determination of a motion for summary judgment” are applied. Breaux v. Cozy Cottages, LLC, 14–486, p. 4 (La.App. 3 Cir. 11/12/14), 151 So.3d 183, 187. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment:

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(B)(2).

Whether a given set of conduct rises to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” is a standard created by law to determine whether liability will result from that conduct; as such, the question of whether a given set of conduct rises to the level of “willful misconduct” or “criminal, willful, outrageous, reckless, or flagrant misconduct” is purely a question of law, and is within the province of the trial court to determine at the summary judgment stage.

Haab v. E. Bank Consol. Special Serv. Fire Prot. Dist. of Jefferson Parish, 13–954 p. 9 (La.App. 5 Cir. 5/28/14), 139 So.3d 1174, 1181, writ denied sub nom. Haab v. E. Bank Consol. Special Serv. Prot. Dist. of Jefferson Parish, 14–1581 (La.10/24/14), 151 So.3d 609.

Discussion

The Louisiana Homeland Security and Emergency Assistance and Disaster Act (hereafter “the Act”), La.R.S. 29:721 et. seq., defines emergency preparedness as “the mitigation of, preparation for, response to, and the recovery from emergencies or disasters.” La.R.S. 29:723(4). A disaster is “a natural or man-made event which causes loss of life, injury, and property damage, including but not limited to natural disasters such as a hurricane.” La.R.S. 29:723(2). An emergency is “the actual or threatened condition that has been or may be created by a disaster.” La.R.S. 29:723(3)(a). Louisiana Revised Statutes 29:735, provides, in pertinent part:

A. (1) Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents' employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.

Thus, the State, its agencies, and political subdivisions are afforded complete immunity for injury or death resulting from emergency preparedness activities. Castille v. Lafayette City–Parish Consol. Gov't, 04–1569 (La.App. 3 Cir. 3/2/05), 896 So.2d 1261, writ denied, 05–0860 (La.5/13/05), 902 So.2d 1029. Pursuant to the same statute, agents, representatives, or employees of the State, its political subdivisions, or agencies are also completely immune except where they have engaged in willful misconduct in the course of preparing for a disaster or emergency. Id.

There is no dispute that, at the time of Appellant's accident, the State of Louisiana was in a state of emergency and that the evacuation activities constituted emergency preparedness activities pursuant to La.R.S. 29:723. At the time of the accident at issue, the State of Louisiana was under Gubernatorial Proclamation No. 53 KBB 2005, issued by Governor Kathleen Blanco on September 20, 2005, declaring a state of emergency for the State of Louisiana due to Hurricane Rita's approach to Louisiana. The accident at issue occurred in the course of an evacuation pursuant to this order. Thus, the question we must address is whether the actions of the agents, representatives, or employees of the State, its subdivisions, or agencies in the course of the evacuation constitute willful misconduct pursuant to La.R.S.29:735.

In M.J. Farms, Ltd. v. Exxon Mobil Corp., 07–2371, pp. 13–14 (La.7/1/08), 998 So.2d 16, 26–27, amended on reh'g (9/19/08) (citations omitted), the supreme court explained:

The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law.

The starting point in the interpretation of any statute is the language of the statute itself. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” However, “when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” Moreover, “when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.”

We first turn to the text of the statute; notably absent are definitions of “willful,” “misconduct,” or “willful misconduct.” Thus, we turn to Black's Law Dictionary (10th ed.2014), which defines “misconduct” as “a dereliction of duty; unlawful, dishonest, or improper behavior, esp. by someone in a position of authority or trust.” “Willful” is defined as “[v]oluntary and intentional, but not necessarily malicious.” Id. It is further explained that “[a] voluntary act becomes willful, in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong. The term willful is stronger than voluntary or intentional; it is traditionally the equivalent of malicious, evil, or corrupt. ” Id. (underlining added for emphasis) Thus, it is our opinion that, to constitute “willful misconduct,” there must be some voluntary, intentional...