Spiegal v. Fireman's Fund Ins. Co.
| Decision Date | 19 September 1997 |
| Citation | 698 So.2d 1388 |
| Parties | 96-3028 La |
| Court | Louisiana Supreme Court |
Prior report: 696 So.2d 569.
ON APPLICATION FOR REHEARING
Rehearing Denied.
[96-3028 La. 1] CALOGERO, Chief Justice, dissenting.
I dissent from the majority's denial of the rehearing. In their rehearing application, plaintiffs sought to have reconsidered two aspects of this Court's judgment. First, there is plaintiffs' assertion of Reva Spiegal's entitlement to Lejeune damages. On that issue, I am in agreement with the majority that the rehearing application has no merit. Contrary to the majority, however, I believe that second issue raised by the application has merit, plaintiffs' claim being that the judgment against Fireman's Fund should be in the sum of $10,000, not $7,500, and that this issue was properly before this Court upon original hearing.
Plaintiffs settled with and released their uninsured motorist carrier, Allstate Insurance Company, for $18,500. Consequently, Allstate became subrogated to the plaintiffs' rights against Fireman's Fund, insurer of the defendant tortfeasor, Patrice Brown. Allstate in turn made a claim against Fireman's Fund which was settled for $2,500. In the court of appeal, plaintiffs sought the $20,000 maximum under the 10/20 policy and were awarded $17,500. The court of appeal had credited Fireman's Fund for the $2,500 payment in settlement with Allstate and deducted that amount from the policy limit in computing plaintiffs' judgment. This Court, however, determined that plaintiffs' dual recovery (Edward's personal injury and Reva's loss of consortium) was subject to the $10,000 policy limit and reduced that amount by $2,500 for an award of $7,500. This Court further found that the merits of plaintiffs' entitlement to the $2,500 was not properly before this Court because plaintiffs had raised the issue in their brief and had [96-3028 La. 2] not sought writs on the issue. In their application for rehearing, plaintiffs contend that even conceding the correctness of a $10,000 limit for their claims (this Court's finding in its original opinion), the $2,500 reduction from $10,000 to $7,500 was legally wrong and, moreover, that their failure to seek writs on this issue did not preclude this Court from its consideration on original hearing.
In its original opinion, this Court disposed of this issue in a footnote, stating that the plaintiffs' failure to file a writ application with this Court contesting this issue precluded consideration of its merits. 1 I perceive that this summary determination is not a considered majority resolution on this important legal issue because the plaintiffs' entitlement to the $2,500 was such an inconsequential matter in this case and a grant of rehearing at this stage would serve to retard the finality of a case that has long been in litigation. Therefore, I do not believe that the resolution of this issue in the footnote would be the majority view on this matter if it came before us again.
With regard to the disputed issue as to whether the plaintiffs are entitled to urge in defense of the court of appeal judgment their entitlement to the $2,500 notwithstanding their failure to seek writs on this issue, I am of the belief that the issue was properly before us upon original hearing for the following reasons.
Article 2164 of the Code of Civil Procedure states that the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. See La.Code Civ. Proc. Ann. art. 2164 (West 1961). Code of Civil Procedure article 2133 B complements article 2164 when it states that a party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert in support of the judgment any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs. La.Code Civ. Proc. Ann. art. 2133 B (West Supp.1997); Succession of Doll, 593 So.2d 1239, 1244 (La.1992). A plaintiff who is victorious in the court of appeal can support that judgment in this Court, albeit on different grounds, without seeking a writ application. Doll, 593 So.2d at 1244. In their brief to this court, one of the grounds that plaintiffs urged which would support the court of appeal judgment...
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