Hershberger v. LKM Chinese, L.L.C.
172 So. 3d 140
La. Ct. App.2015Background
- Hershberger sues China Palace for slip-and-fall at its restaurant on leased premises.
- China Palace operated the restaurant; premises leased from LKM Convenience.
- China Palace and LKM Convenience seek defense/indemnity from Montpelier U.S. Ins. for LKM Convenience.
- China Palace and LKM Convenience intervene against Montpelier seeking defense/indemnity.
- Montpelier filed peremptory exceptions of no right of action and no cause of action; trial court sustained them; judgment against China Palace and LKM Convenience.
- This appeal challenges those rulings and argues amendment should have been allowed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether China Palace has standing to assert third-party defense/indemnity against Montpelier | China Palace has standing via third-party demand | China Palace has no standing to sue for defense/indemnity of LKM Convenience | Yes; no right of action for China Palace against Montpelier |
| Whether LKM Convenience has a cause of action against Montpelier | Intervention to seek defense/indemnification | No right or cause of action since no claim against LKM Convenience | No cause of action against Montpelier |
| Whether China Palace has a right or cause of action for defense/indemnity on its own behalf | Possibly amend to assert own defense/indemnity | China Palace is not an insured under Montpelier’s policy | No right or cause of action; policy does not cover China Palace |
| Whether amendments could remove grounds for peremptory exceptions | Amendments could cure defects | Amendment would be vain and useless | No amendment available to remove grounds; time not granted |
Key Cases Cited
- Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211 (La. 2006) (standards for when to review peremptory exceptions on face of petition)
- Acorn Cmty. Land Ass’n of Louisiana, Inc. v. Zeno, 936 So.2d 836 (La. App. 4th Cir. 2006) (standing and exception standards on petitions)
- Eubanks v. Hoffman, 685 So.2d 597 (La. App. 4th Cir. 1996) (allowing admissible evidence at hearing on no right of action)
- Oakville Community Action Group v. Plaquemines Parish Council, 942 So.2d 1152 (La. App. 4th Cir. 2006) (distinguishing no right of action vs. no cause of action; standing)
- Small v. Baloise Ins. Co. of America, 753 So.2d 234 (La. App. 4th Cir. 1998) (standing testing via no right of action; Article 681)