Myers v. Hous. Specialty Ins. Co.

Decision Date04 November 2022
Docket Number2022 CA 0480,2022 CA 0481,2022 CA 0482,2022 CA 0483
PartiesJASON MYERS v. HOUSTON SPECIALTY INSURANCE COMPANY, ET AL. AMBER IDLEMAN FB/O AND/OR OB/O KAIDEN COLE JACKSON v. DENISE JONES, USA INSURANCE CO., HOUSTON SPECIALTY INS. CO., AND DONALD BUSH THOMAS BUSH, JR. v. USA INSURANCE COMPANY, DENISE D. JONES, DONALD R. BUSH, HOUSTON SPECIALTY INSURANCE COMPANY, ANDREA HELD, AND AJ GALLAGHER RISK MANAGEMENT SERVICES, INC. DONALD BUSH v. DENISE JONES AND USA INSURANCE COMPANY
CourtCourt of Appeal of Louisiana — District of US

NOT DESIGNATED FOR PUBLICATION

Appealed from the Thirty -Second Judicial District Court in and for the Parish of Terrebonne State of Louisiana Docket Number 188467 c/w 188533 c/w 188669 c/w 188987 Honorable Timothy C. Ellender, Jr., Judge Presiding

Scott A. Dartez Maurice, LA Counsel for Plaintiff/Appellant, Jason Myers

Christoper A. D' Amour Alexandra R. Lamb New Orleans, LA Counsel for Defendants/Appellees, Andrea Helo, Jacob Crawford, and Arthur J. Gallagher Risk Management Services Inc.

Denia S. Aiyegbusi Casey B. Wendling New Orleans, LA Counsel for Defendants, Denise Jones and USA Insurance Company

James T. Rivera Jessica W. Marchand Lafayette, LA Lafayette, LA Counsel for Defendant, Houston Specialty Insurance Company

Brent P. Frederick Michael T. Beckers Danielle N. Goren Baton Rouge, LA and Michael G. Gee Mallory F. Maddocks Kaitlyn E Bourg Thibodaux, LA Counsel for Defendant, Donald Bush

Seth A. Schmeeckle Kristopher M. Redmann New Orleans, LA Counsel for Defendant, Evanston Insurance Company

Mark G. Artall Lafayette, LA Counsel for Plaintiff, Thomas Bush, Jr.

BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.

WHIPPLE, C J.

In this personal injury action, plaintiff, Jason Myers, appeals the August 9, 2021 judgment of the Thirty-second Judicial District Court, granting the peremptory exception raising the objection of no right of action filed by defendants Arthur J. Gallagher Risk Management Services, Inc., Andrea Helo, and Jacob Crawford and dismissing with prejudice his claims against those defendants. For the following reasons, we affirm as amended and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On March 19, 2020, Myers filed a petition seeking damages for personal injuries he allegedly sustained in an automobile accident that occurred on April 11, 2019, on Louisiana Highway 24 in Terrebonne Parish, involving a Ford F-350 driven by Donald Bush and a Nissan Maxima driven by Denise Jones. Myers named as defendants: Donald Bush; Jones; Houston Specialty Insurance Company ("Houston Specialty"), the liability insurer of the Ford F-350; and USA Insurance Company, the liability insurer of the Nissan Maxima. In the petition, Myers alleged that he was a guest passenger in the Ford F-350, which was driven by defendant Donald Bush and owned by Business Interiors Logistics and Technicians, LLC ("BILT"), and that the accident was caused by the negligence of both Donald Bush and Jones.

Myers subsequently filed a First Amending and Supplemental Petition, naming additional defendants, including A.J. Gallagher Risk Management Services, Inc. and Gallagher employees, Andrea Helo and Jacob Crawford, (at times collectively referred to as "the Gallagher defendants"). Myers contended that the Gallagher defendants had been negligent in failing to apply for and secure proper uninsured motorist coverage under the Houston Specialty policy and under a policy issued by Evanston Insurance Company ("Evanston") and in failing to deliver copies of those policies to him. Thus, Myers contended that the Gallagher defendants were liable to him for damages in an amount up to $1 million, which should have been available to him in connection with the accident at issue pursuant to the terms of the Houston Specialty and Evanston policies.

In response to the amending and supplemental petition, the Gallagher defendants filed peremptory exceptions raising the objections of no right of action, no cause of action, and prescription; a dilatory exception raising the objection of improper cumulation; and a declinatory exception raising the objection of improper venue. In support of the exception of no right of action, the Gallagher defendants contended: that Myers was not an insured under the Houston Specialty and Evanston policies; that the Gallagher defendants provided insurance placement services for BILT, the insured under the policies; and that the Gallagher defendants had never placed any policy for Myers. Thus, they contended that Myers had no right of action related to the placement of the Houston Specialty and Evanston policies.

A hearing on the Gallagher defendants' exceptions was held on July 21, 2021. Following the hearing, the trial court rendered judgment, dated August 9, 2021, granting the Gallagher defendants' exception of no right of action and dismissing the Gallagher defendants from the case with prejudice.[1] Given its ruling on the exception of no right of action, the trial court did not reach the Gallagher defendants' exceptions of no cause of action, prescription, improper cumulation, or improper venue, finding that those exceptions had been rendered moot.[2]

From this judgment, Myers appeals.

DISCUSSION

Generally an action can be brought only by a person having a real and actual interest that he asserts. LSA-C.C.P. art. 681. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Succession of Dean, 2017-0155 (La.App. 1st Cir. 3/29/18), 247 So.3d 746, 760, writ denied, 2018-00679 (La. 9/14/18), 252 So.3d 479. The objection of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Red Stick Studio Development. L.L.C. v. State Department of Economic Development, 2009-1349 (La.App. 1st Cir. 4/8/10), 37 So.3d 1029, 1033, writ denied, 2010-1501 (La. 10/1/10), 45 So.3d 1102.

At the trial of a peremptory exception of no right of action, "Evidence may be introduced to support or controvert the objection of no right of action if the grounds thereof do not appear in the petition." LSA-C.C.P. art. 931. If the pleadings fail to disclose a right of action, the claim may be dismissed without evidence, but the plaintiff should be permitted to amend to state a right of action if he can do so. On the other hand, if the pleadings state a right of action in the plaintiff, the exceptor may introduce evidence to controvert the pleadings on the trial of the exception, and the plaintiff may introduce evidence to controvert any objections. LSA-C.C.P. arts, 931 and 934; Howard v. Administrators of Tulane Educational Fund, 2007-2224 (La. 7/1/08), 986 So.2d 47, 59.

Generally, whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal. Succession of Dean, 247 So.3d at 760. However, when evidence is introduced to support or controvert an exception of no right of action, factual findings are reviewed under the manifest error-clearly wrong standard of review. Pearce v. Lagarde, 2020-1224 (La.App. 1st Cir. 10/7/21), 330 So.3d 1160, 1167, writ denied, 2022-00010 (La. 2/22/22), 333 So.3d 446.

In the instant case, while the Gallagher defendants and Myers both attached exhibits to their memoranda in support of and in opposition to the exceptions, no evidence was introduced at the hearing. In the absence of evidence, the peremptory exception must be decided on the facts alleged in the petition, which are accepted as true. Evidence not properly and officially offered and introduced cannot be considered, even if physically placed or located in the record. See Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88. Accordingly, the Gallagher defendants' exception of no right of action must be considered solely in light of the facts alleged in the petitions.

In his amending and supplemental petition, Myers alleged that the Gallagher defendants had negligently failed to apply for and secure $1 million in uninsured motorist coverage on the Houston Specialty policy issued to BILT, which provided coverage on the Ford F-350, as instructed by Thomas Bush, Jr.,[3] and had negligently failed to apply for and procure $1 million in uninsured motorist coverage on a policy issued by Evanston to BILT providing coverage for the Ford F350. He further alleged that Helo and Crawford, while acting in the course and scope of their employment with Gallagher, were negligent in: failing to properly review policy application documents at issue herein; failing to properly communicate with Myers regarding insurance requirements prior to procuring insurance on his behalf; failing to properly communicate with Houston Specialty regarding the insurance requirements of Myers; failing to properly communicate with Evanston regarding the insurance requirements of Myers; failing to properly prepare and review documents and applications submitted to Houston Specialty and Evanston; failing to deliver copies of the Houston Specialty and Evanston policies at issue to Myers; and failing to properly review insurance coverages and policies with Myers both before and after the issuance of insurance policies by Houston Specialty and Evanston.

An insurance broker issuing a policy of insurance has a duty to the insured to issue the policy with the requested coverage. Bustamante v. State Farm Mutual Automobile Insurance Company, 517...

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