203 So. 3d 337
La. Ct. App.2016Background
- Dupuy Storage (insured) had a $1,000,000 CGL policy with Evanston and a $4,000,000 excess policy with ASIC during 7/1/09–7/1/10.
- Danilo Sabillon was injured while delivering to Dupuy; a jury found Dupuy 100% liable and awarded $4,661,333 in October 2012.
- Evanston paid the $1,000,000 policy limit; ASIC paid the remaining $3,661,333 under the excess policy and later intervened seeking recovery from Evanston by subrogation.
- Dupuy sued Evanston (and others) alleging mishandling of the defense and claiming bad-faith penalties under La. R.S. 22:1973 equal to twice the excess judgment, among other claims; related malpractice and subrogation claims remained pending.
- Trial court granted Evanston’s motion for partial summary judgment dismissing Dupuy’s claim for bad-faith penalties based on twice the excess judgment and certified the partial judgment as final; Dupuy appealed.
- The court of appeal reviewed whether certification under La. Code Civ. P. art. 1915(B)(1) was proper and whether to convert the appeal to a supervisory writ; it ultimately dismissed the appeal for lack of appellate jurisdiction and declined supervisory review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the partial summary judgment dismissing Dupuy’s La. R.S. 22:1973 bad-faith claim (twice the excess) is immediately appealable | Dupuy contends the trial court properly certified the partial judgment as final and the claim is ripe for appeal | Evanston argued the partial judgment is not a final appealable judgment; certification was improper because related claims remain | The appellate court held certification was improper: there are just reasons for delay, so appeal dismissed for lack of jurisdiction |
| Whether, on de novo review, certification could be justified given relationship among claims | Dupuy implied urgency because the penalty claim is distinct | Evanston pointed to common operative facts and remaining claims that would still require adjudication | Court found adjudicated and unadjudicated claims arise from same facts; immediate appeal would promote piecemeal litigation and likely be moot later |
| Whether appellate court should convert the improper appeal into a supervisory writ application | Dupuy implicitly sought immediate appellate review via the appeal | Evanston opposed conversion; court retained discretion and applied Herlitz factors | Court declined to exercise supervisory jurisdiction because reversal would not terminate litigation and Herlitz factors were not satisfied |
| Whether judicial economy favored immediate review | Dupuy argued prompt resolution useful | Evanston argued wasteful and likely to require re-review after full trial | Court held immediate review would waste resources and invite multiple appeals; favored delay |
Key Cases Cited
- R.J. Messinger, Inc. v. Rosenblum, 894 So.2d 1113 (La. 2005) (trial court should give explicit reasons when designating a partial judgment final)
- Tomlinson v. Landmark Am. Ins. Co., 192 So.3d 153 (La. App. 4th Cir. 2016) (appellate jurisdiction requires a final judgment)
- Favrot v. Favrot, 68 So.3d 1099 (La. App. 4th Cir. 2011) (appellate court has discretion to exercise supervisory jurisdiction)
- Succession of Scheuermann, 171 So.3d 975 (La. App. 4th Cir. 2015) (improper appeal may be converted to supervisory review in appropriate cases)
- Robert v. Robert, 936 So.2d 223 (La. App. 4th Cir. 2006) (appellate decision remanded for resolution of remaining claims after interlocutory ruling)
- Herlitz Constr. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (factors guiding exercise of supervisory jurisdiction)
- Whitney Nat’l Bank v. Rockwell, 661 So.2d 1325 (La. 1995) (Herlitz factors clarified for supervisory review)