Summary
In Gavin, 747 So.2d 583, the Fourth Circuit in addressing the plaintiff's coverage under a UM policy stated "[a]ny person covered under the UM coverage of an insurance policy is 'insured' for purposes of that UM coverage.
Summary of this case from Lopez v. RichardOpinion
No. 98-CA-0614
April 21, 1999 Opinion on Rehearing June 30, 1999
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 97-5935, DIVISION "L", STATE OF LOUISIANA, HONORABLE MAX N. TOBIAS, JR., JUDGE.
DENNIS P. COUVILLION, BERIT C. HANNA, JAMES MINGE ASSOCIATES, 1100 POYDRAS STREET, 2600 ENERGY CENTRE, NEW ORLEANS, LOUISIANA 70163, COUNSEL FOR PLAINTIFF/APPELLANT.
KENNETH RANDALL EVANS, KAREN M. DICKE, EVANS CLESI, PLC, 336 LAFAYETTE STREET, SUITE 200, NEW ORLEANS, LOUISIANA 70130, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Joan Bernard Armstrong, Judge Steven R. Plotkin, Judge Charles R. Jones, Judge Miriam G. Waltzer and Judge Pro Tempore James A. Gray, II).
STATEMENT OF THE CASE
Evelyn Gavin, a Maryland resident, and Gloria Verret, an Orleans Parish resident, sued Ms. Gavin's uninsured/underinsured motorist carrier, USAA Casualty Insurance, Andre Cannon, a Jefferson Parish resident and Cannon's insurer, State Farm Insurance Company. Plaintiffs sought damages allegedly sustained as a result of an automobile collision allegedly caused by Cannon's negligence. According to the petition, Ms. Verret was a guest passenger in Ms. Gavin's car. Ms. Gavin and Ms. Verret filed lawsuits in both Orleans and Jefferson Parishes.
Cannon and his insurer filed an exception of improper venue in the Orleans Parish proceeding. The exception was tried on 12 September 1997, and on 15 September the trial court sustained the exception and transferred the case to 24th Judicial District Court for the Parish of Jefferson, where the companion suit is pending. The trial court denied Ms. Verret's motion for new trial on 9 January 1998, following trial of the motion on 14 November 1997. Ms. Verret appeals that judgment. Finding no error, we affirm.
ANALYSIS
Ms. Verret contends that as a guest passenger, she is a "covered person" under Ms. Gavin's UM/UIM policy, and that this status is equivalent to being a named insured for venue purposes under La.C.C.P. art. 76. That article provides in pertinent part that an action on a UM/UIM liability policy may be brought in the parish where the loss occurred or where the INSURED is domiciled. We note that the statute refers by its own terms to "insured," and not to "covered person."
The trial court found in his reasons for judgment that plaintiffs did not submit a copy of the USAA policy allegedly providing uninsured motorist coverage. Our examination of the record does not reveal a copy of the policy. The parties advised the Court during oral argument that there is no dispute that Ms. Gavin is insured by USAA for UM/UIM benefits. Absent a definitive copy of the policy, we surmise from the record only that a foreign insurer in the state of Maryland issued a policy of liability insurance to a Maryland insured (not Ms. Verret).
This case is governed by basic principles of Louisiana contract and insurance law. Our civilian tradition is grounded on the principles that the sources of law are legislation and custom, and that legislation is the solemn expression of legislative will. La.C.C. arts. 1 and 2. Our Civil Code clearly and unequivocally provides that a contract is an agreement by two or more parties whereby obligations are created, modified or extinguished. La.C.C. art. 1906. Contracts produce effects for third parties only when provided by law. La.C.C. art. 1985. Ms. Gavin and USAA are parties to an insurance contact pursuant to which Ms. Gavin is insured. Ms. Verret is not a party to that contract, but seeks to be a third party beneficiary.
Under Louisiana contract law, absent contrary positive law, Ms. Verret would have no right to sue either her host's insurer or Cannon's insurer, since Ms. Verret is a party to neither insurance contract. In the context of liability and uninsured motorist insurance, the Louisiana Direct Action Statute is such a positive law. La.R.S. 22:655 grants to injured persons, their survivors and heirs of a certain degree the option to have a tight of direct action against the insurer within the terms and limits of the policy. This action, according to La.R.S. 22:655(B) (1) may be brought:
1. in the parish in which the accident or in
2. in the parish in which the action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 ONLY . (Emphasis added.)
Under the facts of the instant case, appropriate venues available under the Direct Action Statute are Jefferson Parish, where the accident occurred, or East Baton Rouge Parish under La.C.C.P. art. 42 (7).
Absent the Direct Action Statute, with its own specific venue restrictions, Ms. Verret would have no right to sue either of the insurers. Since her right is dependent upon the Direct Action Statute, venue is controlled by its specific limited venue provision. Ms. Verret's direct action claim against the insurers simply cannot be brought in Orleans Parish.
Orleans Parish can be a proper venue pursuant to the provisions of La.C.C.P. art. 76 only if we consider Ms. Verret an "insured" under the policy, that is, if she had a claim independent of her third-party claim under the Direct Action Statute. The reason is fundamental: the Direct Action Statute specifically provides that the proper venue for the claim of a third party such as Ms. Verret is determined ONLY by reference to La.C.C.P. art. 42 — and not pursuant to La.C.C.P. art. 76.
Ms. Verret asks this court to extend the holding in Kellis v. Farber, 523 So.2d 843 (La. 1988) to make her an "insured" under Ms. Gavin's policy, thus having the right to venue in Orleans Parish. Kellis held that La.C.C.P. art. 42 is subject to all the exceptions contained in La.C.C.P. arts. 71 through 85. The Direct Action Statute was amended in 1996 to add the word, "only" to modify La.C.C.P. art. 42, thus legislatively overrulingKellis and its progeny. The legislative intent is clearly to limit Direct Action Statute venue to the basic venue provisions of La.C.C.P. art. 42 and not to extend it to venues provided in other codal articles, including La.C.C.P. art. 76.
The legislature having expressed solemnly its will in the 1996 amendment to the Direct Action Statute, limiting the effect of Kellis and its progeny, we must reject any extension of the reasoning in that case. Ms. Verret may be a "covered person" under the USAA policy, but she is not an "insured" for venue purposes.
CONCLUSION AND DECREE
Based on the entirety of the record, we find no error in the judgment of the trial court transferring this case to the 24th Judicial District Court for the Parish of Jefferson.
AFFIRMED.
ARMSTRONG, J., DISSENTS WITH REASONS JONES, J., DISSENTS.
ON APPLICATION FOR REHEARING
This is an automobile personal injury case. The only issue on appeal is venue. The plaintiff filed suit in Orleans Parish. Two of the defendants filed exceptions of improper venue. The trial court maintained those exceptions and transferred the case to Jefferson Parish. The plaintiff appeals. We find that Orleans Parish is a proper venue for this action and, therefore, we reverse and remand for further proceedings.
This appeal originally was heard by a three-judge panel. Two judges voted to reverse and one voted to affirm. Thus, the case was heard by a five-judge panel. On original hearing before the five-judge panel, three judges voted to affirm and two voted to reverse. A petition for rehearing was filed and, upon rehearing, three judges have voted to reverse and two judges have voted to affirm.
One of the panel members voting with the majority, The Honorable Robert A. Katz, presided over this case for the first time only on rehearing.
Plaintiff-appellant Gloria Verret was a passenger in a car driven by Evelyn Gavin which was involved in a collision with a car driven by Andre Cannon. Mr. Cannon has automobile liability insurance with State Farm Insurance Company. Ms. Gavin has uninsured/underinsured, motorist ("UM") coverage with USAA Insurance Company. Ms. Verret sued Andre Cannon, State Farm and USAA in Orleans Parish. With respect to her claim against USAA, Ms. Verret alleged that Mr. Cannon is underinsured and that she, Ms. Verret, has UM coverage under Ms. Gavin's USAA policy.
Mr. Cannon is domiciled in Jefferson Parish. Ms. Gavin is domiciled in Maryland. Ms. Verret is domiciled in Orleans Parish. State Farm and USAA are foreign insurers. The accident happened in Jefferson Parish.
Mr. Cannon and State Farm filed exceptions of improper venue. They argued that, while they could be sued in either Jefferson Parish (because that is the location of the accident and because Mr. Cannon is domiciled there), or in East Baton Rouge Parish (because State Farm is a foreign insurer), Orleans Parish is not a proper venue. The trial court maintained their exceptions and transferred the case to Jefferson Parish.
Ms. Verret argues that she may sue USAA, as her UM insurer, in the parish where she is domiciled, which is Orleans Parish. She further argues that, because Mr. Cannon and State Farm are solidary obligors with USAA, she may sue them in Orleans Parish as well. Although the legal authorities we rely upon are different from those cited by Ms. Verret, and although we think that the legal, analysis involved is different from that advanced: by Ms. Verret, we agree that she can sue USAA, Mr. Cannon and State Farm in Orleans Parish.
This court dealt with almost, the same issues that confront us in the present case in our decision in Gaspard v. Louisiana Farm Bureau Ins. Co., 96-2148 (La.App. 4 Cir. 11/6/98), 684 So.2d 55 (discussing Cantrelle v. State Farm Mut. Auto. Ins. Co., 94-1940 (La.App. 4 Cir. 4/13/95), 654 So.2d 790 and Boatwright v. Metropolitan Life Ins. Co., 95-2525, 95-2473 (La.App. 4 Cir. 3/27/96), 671 So.2d 553). In that case, the plaintiff, Gaspard, was domiciled in Orleans Parish. The accident occurred in Jefferson Parish. The defendant alleged tortfeasor, Cousins, was domiciled in Jefferson Parish and insured for liability by a foreign insurer (while the case was still in the trial court, Gaspard voluntarily dismissed without prejudice his claim against Cousins' liability insurer). Gaspard had UM coverage with State Farm, which was a foreign insurer.
Cousins filed an exception of improper venue. Gaspard argued that, under Article 76 of the Code of Civil Procedure, he could sue his UM carrier in the parish in which he was domiciled, which was Orleans Parish. Gaspard also argued that, as Cousins was solidarily liable with the UM carrier, he could sue Cousins in Orleans Parish. The Gaspard court determined that the provisions of the Direct Action Statute, La.R.S. 22:655, apply to claims against UM carriers. The Gaspard court also held that, under the Direct Action Statute, Article 76 venue was not available. However, the Gaspard court determined that, under the Direct Action Statute, the plaintiff can sue a UM carrier in the parish of the plaintiff's domicile. Thus, Gaspard could sue the UM carrier, State Farm, in Orleans Parish. Finally, the Gaspard court held that, as Cousins was solidarily liable with the UM carrier, Cousins also could be sued in Orleans Parish.
One treatise suggests that Gaspard held that the Direct Action Statute "implicitly brings in Article 76." W.S. McKenzie and H.A. Johnson III, 15 Louisiana Civil Law Treatise: Insurance Law and Practice § 25 n. 11 (2nd ed. 1996) (Supp. 1997 at 3-4). We read Gaspard somewhat differently. Gaspard holds that the Direct Action Statute excludes Article 76 but that the combination of the Direct Action Statute's own provisions with respect to venue with Article 42 (1) results in the insured being able to sue the UM carrier in the parish of the insured's domicile. of course, this is the same result as would occur if Article 76 were applicable. See Cantrelle, supra; Hayden, infra.
The present case differs from Gaspard in only two respects. First, in Gaspard, the plaintiff was, the named insured under the policy providing UM coverage. In the present case, Ms. Verret is. not the named insured but is another person insured under the UM coverage of the USAA policy. We do not think this factual difference is of any consequence. Under Gaspard's reasoning, the "insured party" can sue the UM carrier in the parish of his or her own domicile. Any person covered under the UM coverage of an insurance policy is "insured" for purposes of that UM coverage. If one is "covered" one is "insured." Thus, we believe that Gaspard applies, not just to named insureds, but to other persons, such as Ms. Verret in the present case, covered (that is, insured) under the UM coverage of an automobile insurance policy.
Also, the present case differs from Gaspard in that, in Gaspard, as of the time of the appellate decision, the defendant tortfeasor's liability insurer was not a party. In the present case, both Mr. Cannon and his liability insurer, State Farm, are defendants. This is significant because, while a tortfeasor and a UM carrier are solidary obligors, Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La. 1982), a tortfeasor's automobile liability insurer and a UM carrier are not solidary obligors. Rizer v. American Sur. Fid. Ins. Co., 95-1200 (La. 3/8/96), 669 So.2d 387. Thus, while Mr. Cannon is an alleged solidary obligor with USAA, State Farm is not. However, because venue is proper as to Mr. Cannon, because he is an alleged solidary obligor with USAA, venue is also proper with respect to State Farm. This is because, as Mr. Cannon's liability insurer, State Farm is solidarily liable with Mr. Cannon. La.R.S. 22:655 (B)(1).
This court also dealt with almost the same issue as does the present case in Hayden v. Gittens, 97-0726 (La.App. 4 Cir. 12/10/97), 704 So.2d 927. In Hayden, the plaintiff, who was domiciled in St. Tammany Parish, filed suit in St. Tammany Parish against the UM carrier, Virginia Casualty, the driver with whom he collided, Gittens, and Gittens' employer, Triple E. The accident was in Orleans Parish. Gittens and Triple E filed exceptions and argued that venue was not proper in St. Tammany Parish. (The case had been transferred to Orleans Parish but that did not moot the venue question as the ultimate issue was whether prescription had been interrupted by the filing of suit in St. Tammany Parish. If St. Tammany Parish was not a proper venue, then prescription had not been interrupted with respect to Gittens and Triple E and the claim was prescribed as to them.)
The Hayden court found that Article 76 of the Code of Civil Procedure was applicable to a claim against a UM carrier and, therefore, venue was proper in the parish of the plaintiff's domicile, St. Tammany, for his suit against Virginia Casualty. The Hayden court also held that, under Hoefly, Triple E and Gittens were solidary obligors with Virginia Casualty and that, therefore, venue was proper in St. Tammany Parish for them as well.
The Hayden case differs from the present case in the same two respects that the Gaspard case differs from the present case: the plaintiff was the named insured and the tortfeasor's liability insurer was not involved (the Hayden case liability insurer had been sued, perhaps by pseudonym, but apparently had not made any appearance). However, our above discussion of those two points in connection with our discussion of Gaspard is applicable to Hayden as well.
Under Hayden's analysis, pursuant to Article 76, venue was proper in Orleans Parish for Ms. Verret's suit against USAA. Because Mr. Cannon is a solidary obligor with USAA, venue in Orleans Parish was proper with respect to him as well. Further, because State Farm is solidarily liable with Mr. Cannon, venue is proper in Orleans Parish as to State Farm as well.
There are differences between the reasoning of Gaspard and the reasoning in Hayden. However, under either of these cases, venue in Orleans Parish was proper in the present case.
With respect to the dissent's concern that we have "found" that Ms. Verret is covered by the UM provisions of the USAA policy, we believe that the present dissent has confused the merits with the venue issue and has misconstrued the appellees' venue argument and the trial court's reasons for judgment. Ms. Verret has alleged that she is covered under the UM provisions of the USAA policy and the only issue in this appeal is the proper venue for that claim of coverage. If it is determined that Ms. Verret is not covered under the UM provisions of the USAA policy, then her claim against USAA will be defeated on the merits. Further, the argument on appeal of the exceptors-appellees, State Farm and Mr. Cannon, is not predicated upon Ms. Verret not being a covered person under the USAA policy. Instead, State Farm and Mr. Cannon argue that, even assuming that Ms. Verret is a covered person under the USAA policy, venue is not proper in Orleans Parish. In fact, the trial court expressly based its decision upon the premise that Ms. Verret is a covered person but not a named insured: "Since Verret is not shown as an insured [i.e. a named insured] but rather only as a covered person for purposes of USAA's policy for UM coverage, no showing is made that Orleans Parish is a proper venue." Judgment and Reasons of September 15, 1997 (emphasis added). Lastly, the dissent does not take account of this court's prior Gaspard and Hayden decisions which we are obliged to follow.
For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings.
REVERSED AND REMANDED .
PLOTKIN, J. DISSENTS ON REHEARING FOR THE REASONS ASSIGNED BY J. WALTZER.
WALTZER, J. DISSENTS ON REHEARING WITH REASONS.
I respectfully dissent because I believe that Orleans Parish is a proper venue this action. I note that, while the plaintiff filed suit in both Orleans Parish and Jefferson Parish, she withheld service of the Jefferson Parish suit because her preferred venue is Orleans Parish.
Plaintiff-appellant Gloria Verret was a passenger in a car driven by Evelyn Gavin which was involved in a collision with a car driven by Andre Cannon. Mr. Cannon has automobile liability insurance with State Farm Insurance Company. Ms. Gavin has uninsured/underinsured motorist ("UM") coverage with USAA Insurance Company. Ms. Verret sued Andre Cannon, State Farm and USAA in Orleans Parish. With respect to her claim against USAA, Ms. Verret alleged that Mr. Cannon is underinsured and that she, Ms. Verret, has UM coverage under Ms. Gavin's USAA policy.
Mr. Cannon is domiciled in Jefferson Parish. Ms. Gavin is domiciled in Maryland. Ms. Verret is domiciled in Orleans Parish. State Farm and USAA are foreign insurers. The accident happened in Jefferson Parish.
Mr. Cannon and State Farm filed exceptions of improper venue. They argued that, while they could be sued in either Jefferson Parish (because that is the location of the accident and because Mr. Cannon is domiciled there), or in East Baton Rouge Parish (because State Farm is a foreign insurer), Orleans Parish is not a proper venue. The trial court maintained their exceptions and transferred the case to Jefferson Parish.
Ms. Verret argues that she may sue USAA, as her UM insurer, in the parish where she is domiciled, which is Orleans Parish. She further argues that, because Mr. Cannon and State Farm are solidary obligors with USAA, she may sue them in Orleans Parish as well. Although the legal authorities I rely upon are different from those cited by Ms. Verret, and although I think that the legal analysis involved is different from that advanced by Ms. Verret, I agree that she can sue USAA, Mr. Cannon and State Farm in Orleans Parish.
This court dealt with almost the same issues that confront us in the present case in our decision in Gaspard v. Louisiana Farm Bureau Ins. Co., 96-2148 (La.App. 4 Cir. 11/6/98), 684 So.2d 55 (discussing Cantrelle v. State Farm Mut. Auto. Ins. Co., 94-1940 (La.App. 4 Cir. 4/13/95), 654 So.2d 790 and Boatwright v. Metropolitan Life Ins. Co., 95-2525, 95-2473 (La.App. 4 Cir. 3/27/96), 671 So.2d 553). In that case, the plaintiff, Gaspard, was domiciled in Orleans Parish. The accident occurred in Jefferson Parish. The defendant alleged tortfeasor, Cousins, was domiciled in Jefferson Parish and insured for liability by a foreign insurer (while the case was still in the trial court, Gaspard voluntarily dismissed without prejudice his claim against Cousins' liability insurer). Gaspard had UM coverage with State Farm, which was a foreign insurer.
Cousins filed an exception of improper venue. Gaspard argued that, under Article 76 of the Code of Civil Procedure, he could sue his UM carrier in the parish in which he was domiciled, which was Orleans Parish. Gaspard also argued that, as Cousins was solidarily liable with the UM carrier, he could sue Cousins in Orleans Parish. The Gaspard court determined that the provisions of the Direct Action Statute, La.R.S. 22:655, apply to claims against UM carriers. The Gaspard court also held that, under the Direct Action Statute, Article 76 venue was not available. However, the Gaspard court determined that, under the Direct Action Statute, the plaintiff can sue a UM carrier in the parish of the plaintiff's domicile. Thus, Gaspard could sue the UM carrier, State Farm, in Orleans Parish. Finally, the Gaspard court held that, as Cousins was solidarily liable with the UM carrier, Cousins also could be sued in Orleans Parish.
One treatise suggests that Gaspard held that the Direct Action Statute "implicitly brings in Article 76." W.S. McKenzie and H. A. Johnson III, 15 Louisiana Civil Law Treatise: Insurance law and Practice § 25 n. 11 (2nd ed. 1996) (Supp. 1997 at 3-4). I read Gaspard somewhat differently. Gaspard holds that the Direct Action Statute excludes Article 76 but that the combination of the Direct Action Statute's own provisions with respect to venue with Article 42(1) results in the insured being able to sue the UM carrier in the parish of the insured's domicile. of course, this is the same result as would occur if Article 76 were applicable. See Cantrell, supra; Hayden, infra.
The present case differs from Gaspard in only two respects. First, in Gaspard, the plaintiff was the named insured under the policy providing UM coverage. In the present case, Ms. Verret is not the named insured but is another person insured under the UM coverage of the USAA policy. I do not think this factual difference is of any consequence. Under Gaspard's reasoning, the "insured party" can sue the UM carrier in the parish of his or her own domicile. Any person covered under the UM coverage of an insurance policy is "insured" for purposes of that UM coverage. If one is "covered" one is "insured." Thus, I believe that Gaspard applies, not just to named insureds, but to other persons, such as Ms. Verret in the present case, covered (that is, insured) under the UM coverage of an automobile insurance policy.
Also, the present case differs from Gaspard in that, inGaspard, as of the time of the appellate decision, the defendant tortfeasor's liability insurer was not a party. In the present case, both Mr. Cannon and his liability insurer, State Farm, are defendants. This is significant because, while a tortfeasor and a UM carrier are solidary obligors, Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La. 1982), a tortfeasor's automobile liability insurer and a UM carrier are not solidary obligors. Rizer v. American Sur. Fid. Ins. Co., 95-1200 (La. 3/8/96), 669 So.2d 387. Thus, while Mr. Cannon is an alleged solidary obligor with USAA, State Farm is not. However, because venue is proper as to Mr. Cannon, because he is an alleged solidary obligor with USAA, venue is also proper with respect to State Farm. This is because, as Mr. Cannon's liability insurer, State Farm is solidarily liable with Mr. Cannon. La.R.S. 22:655(B) (1).
This court also dealt with almost the same issue as does the present case in Hayden v. Gittens, 97-0726 (La.App. 4 Cir. 12/10/97), 704 So.2d 927. In Hayden, the plaintiff, who was domiciled in St. Tammany Parish, filed suit in St. Tammany Parish against the UM carrier, Virginia Casualty, the driver with whom he collided, Gittens, and Gittens' employer, Triple E. The accident was in Orleans Parish. Gittens and Triple E filed exceptions and argued that venue was not proper in St. Tammany Parish. (The case had been transferred to Orleans Parish but that did not moot the venue question as the ultimate issue was whether prescription had been interrupted by the filing of suit in St. Tammany Parish. If St. Tammany Parish was not a proper venue, then prescription had not been interrupted with respect to Gittens and Triple E and the claim was prescribed as to them.)
The Hayden court found that Article 76 of the Code of Civil Procedure was applicable to a claim against a UM carrier and, therefore, venue was proper in the parish of the plaintiffs domicile, St. Taminany, for his suit against Virginia Casualty. The Hayden court also held that, under Hoefly, Triple E and Gittens were solidary obligors with Virginia Casualty and that, therefore, venue was proper in St. Tammany Parish for them as well.
The Hayden case differs from the present case in the same two respects that the Gaspard case differs from the present case: the plaintiff was the named insured and the tortfeasor's liability insurer was not involved (theHayden case liability insurer had been sued, perhaps by pseudonym, but apparently had not made any appearance). However, my above discussion of those two points in connection with my discussion of Gaspard is applicable to Hayden as well.
Under Hayden's analysis, pursuant to Article 76, venue was proper in Orleans Parish for Ms. Verret's suit against USAA. Because Mr. Cannon is a solidary obligor with USAA, venue in Orleans Parish was proper with respect to him as well. Further, because State Farm is solidarily liable with Mr. Cannon, venue is proper in Orleans Parish as to State Farm as well.
There are differences between the reasoning of Gaspard and the reasoning in Hayden. However, under either of these cases, venue in Orleans Parish was proper in the present case.
For the foregoing reasons, I would reverse the judgment of the trial court and remand for further proceedings.
I respectfully dissent for the reasons assigned by Judge Armstrong.
Because I find the majority opinion overlooks basic principles of Louisiana contract and insurance law, I must respectfully dissent.
Our Civil Code clearly and unequivocally provides that a contract is an agreement by two or more parties whereby obligations are created, modified or extinguished. La.C.C. art. 1906. Contracts produce effects for third parties only when provided by law. La.C.C. art. 1985. Ms. Gavin and USAA are parties to an insurance contract pursuant to which Ms. Gavin is insured. Ms. Verret is not a part to that contract, but seeks to be a third party beneficiary.
Under Louisiana contract law, absent contrary positive law, Ms. Verret has no right to sue either her host's insurer or Cannon's insurer, since Ms. Verret is a party to neither insurance contract. In the context of liability and uninsured motorist insurance, the Louisiana Direct Action Statute is such a positive law. La.R.S. 22:655 grants to injured persons, their survivors and heirs of a certain degree the option to have a right of direct action against the insurer within the terms and limits of the policy. This action, according to La.R.S. 22:655 (B)(1) may be brought:
1. in the parish in which the accident or injury occurred;
2. in the parish in which the action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 ONLY . (Emphasis added.)
Under the facts of the instant case, appropriate venues under the Direct Action Statute are Jefferson Parish, where the accident occurred, or East Baton Rouge Parish under La.C.C.P. art. 42 (7).
Absent the Direct Action Statute, with its own specific venue restrictions, Ms. Verret has no right to sue either of the insurers. Since her right is derivative of and dependent upon the Direct Action Statute, venue is controlled by its quite specific language. Her direct action claim against the insurers simply cannot be brought in Orleans Parish.
La.C.C.P. art. 76 provides that an action on any type of insurance other than life, health or accident may be brought in the parish where the loss occurred or the insured is domiciled. Orleans Parish can be a proper venue pursuant to the provisions of La.C.C.P. art. 76 only if we consider Ms. Verret an "insured" under the policy and if she had a claim independent of her third-party claim under the Direct Action Statute. The reason is fundamental: the Direct Action Statute specifically provides that the proper venue for the claim of a third party such as Ms. Verret is determined ONLY by reference to La.C.C.P. art. 42 — and not pursuant to La.C.C.P. art. 76. The Direct Action Statute was amended in 1996 to add the word, "only" to modify La.C.C.P. art. 42, thus legislatively overruling an earlier Louisiana Supreme Court decision holding that La.C.C.P. art. 42 is subject to all the exceptions contained in La.C.C.P. arts. 71 through 85. Kellis v. Farber, 523 So.2d 843, 845-46 (La. 1988). Ms. Verret asks this court to extend the Kellis holding to make her an "insured" under Ms. Gavin's policy, thus giving her the right to Orleans Parish venue. The legislative intent of the amendment to La.C.C.P, art. 42 is clearly to limit Direct Action Statute venue to the basic venue provisions of La.C.C.P. art. 42 and not to extend it to venues provided in other codal articles, including La.C.C.P. art. 76 — thus, the addition of the word, "only." The legislature having expressed solemnly its will (see, La.C.C. arts. 1 and 2) in the 1996 amendment to the Direct Action Statute, specifically limiting the effect of Kellis and its progeny, I am compelled to reject any extension of the reasoning in that case. Ms. Verret may be a "covered person" under the USAA policy, but she is not an "insured" for venue purposes.
I am troubled by the majority's finding that Ms. Verret is both a "covered person" and an "insured" under the policy. The trial court found in his reasons for judgment that plaintiffs did not submit a copy of the USAA policy, allegedly providing uninsured motorist coverage. My examination of the record did not reveal a copy of the policy. Absent a definitive copy of the policy, we surmise from the record only that a foreign insurer in the state of Maryland issued a policy of liability insurance to a Maryland insured (not Ms. Verret). I do not believe that on this record this Court can conclude that the policy provided status as an "insured", as distinguished from "coverage" to a guest passenger such as Ms. Verret either by its own terms, which are not before us, or by application of Maryland law, which is not suggested.
Based on the entirety of the record, I find no error in the judgment of the trial court transferring this case to the 24th Judicial District Court for the Parish of Jefferson and would affirm the judgment.