Lang v. Asten, Inc.

• Citation: 918 So.2d 453
• Decision Date: 13 January 2006
• Docket Number: No. 2005-C-1119.,2005-C-1119.
• Parties: Dorothy Lang, Spouse of/and Stanley LANG, Erma Martin, Spouse of/and Burnia Martin, Mary Melancon, Individually and As Surviving Spouse of Roy Melancon, Eliabeth J. Penny, Spouse of/and Thomas D. Penny, Elizabeth Romano, Spouse of/and Russell Romano v. ASTEN, INC., Combustion Engineering, Inc., D.B. Riley, Inc., Eagle, Inc., Industrial Holdings Corporation, McCarty Corporation, Midland-Ross Corporation, Mt. Vernon Mills, Inc., Owens-Illinois, Inc., Scapa Dryers, Inc., Scapa Group, Ltd., et al.
• Court: Supreme Court of Louisiana

918 So.2d 453

Dorothy Lang, Spouse of/and Stanley LANG, Erma Martin, Spouse of/and Burnia Martin, Mary Melancon, Individually and As Surviving Spouse of Roy Melancon, Eliabeth J. Penny, Spouse of/and Thomas D. Penny, Elizabeth Romano, Spouse of/and Russell Romano v. ASTEN, INC., Combustion Engineering, Inc., D.B. Riley, Inc., Eagle, Inc., Industrial Holdings Corporation, McCarty Corporation, Midland-Ross Corporation, Mt. Vernon Mills, Inc., Owens-Illinois, Inc., Scapa Dryers, Inc., Scapa Group, Ltd., et al.

No. 2005-C-1119.

Supreme Court of Louisiana.

January 13, 2006.

PER CURIAM.

We grant this writ application solely for the purpose of reversing the district court judgment holding third-party defendant insurers, OneBeacon America Insurance Co. and American Employers Insurance Co., in constructive contempt for failing to obey an order requiring that they provide purported insureds a "full and complete defense" while their motion for new trial and then their appeal were pending and unresolved.

La.Code of Civil Proc. art. 224 defines a constructive contempt as "any contempt other than a direct one," and sets forth a number of acts that constitute a constructive contempt, including the following: "wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court." La.Code of Civil Proc. art. 224(2). Although a district court has discretion to determine whether to find a person guilty of constructive contempt of court, a finding that a person wilfully disobeyed a court order in violation of La.Code of Civil Proc. art. 224(2) must be based on a finding that the accused violated an order of the court "intentionally, knowingly, and purposefully, without justifiable excuse." Brunet v. Magnolia Quarterboats, Inc., 97-187 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, writ denied 98-0990, 720 So.2d 343 (La.5/29/98); Pittman Const. Co., Inc. v. Pittman, 96-1079, 96-1498 (La.App. 4 Cir. 3/12/97), 691 So.2d 268, writ denied, 97-0960 (La.5/16/97), 693 So.2d 803.

In the instant case, the order that the third-party insurers were accused of "wilfully disobeying" was the subject of a motion for new trial, followed by an immediate appeal. Under the circumstances, the insurers cannot be considered to have disobeyed the order that they provide their insureds a "full and complete defense" without justification, given the fact that the insurers immediately sought review of the order. The filing of a new trial and/or an appeal challenging an order clearly provides justification for the insurers' failure to obey the order. Accordingly, the district court abused its discretion when it found the third-party insurers guilty of constructive contempt of court.

We further note that, pursuant to the requirements established by La.Code of Civil Proc. 225(A),¹ relative to the procedure for punishing for constructive contempt, "[a] person charged with committing a constructive contempt of court my be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt and punished accordingly." (Emphasis added.) La.Code of Civ. Proc. art. 225(A) further provides that the rule to show cause "shall state the facts alleged to constitute the contempt." Official Revision Comments(a) to La.Code of Civ. Proc. art. 225 states as follows:

The procedure in this article employs a rule to show cause, which may issue on the court's own motion or on the motion of a party, and the motion for the rule to show cause sets forth the facts alleged to constitute the constructive contempt. Further, the person charged with committing the constructive contempt is allowed at least forty-eight hours to prepare his defense.

Based on the language of La.Code of Civ. Proc. art. 225(A), this court has previously held that the requirement that the rule to show cause "shall state the facts alleged to constitute the contempt" is mandatory. Louisiana State Bd. of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640, 642 (La.1968). In Englan...