229 So. 3d 480
La. Ct. App.2016Background
- On July 1, 2010 a swinging steel traffic pole gate on access road to Greenwood Cemetery pierced Lisa Plaia’s windshield, severely injuring her; suit followed by Plaia and family against FCBA (landowner), First Baptist Church of New Orleans (FBCNO), Stewart Enterprises (landscapers/funeral defendants) and insurers.
- Multiple leases govern the property: a 1992 base lease (FCBA ↔ funeral defendants), a 2004 sublease (SEFH ↔ FBCNO, FCBA intervenor), and a 2004 Cherry Street ground lease (FCBA ↔ FBCNO); plans attached to leases showed tie-posts and padlocks to secure gates.
- At trial the jury found Plaia not at fault and apportioned fault: FCBA 42.5%, FBCNO 42.5%, Stewart 15%; awarded $770,000 but denied many claimed damages; plaintiffs moved for JNOV/new trial/additur.
- Trial court limited the overall trial to 10 days (after representations suggesting 15), excluded testimony (including husband, a defense-retained neurologist proffer), and granted directed verdicts on loss-of-consortium and Lejeune bystander claims; plaintiffs appealed.
- Separate trial addressed contractual indemnity and defense entitlements among FCBA, FBCNO, and SEFH; trial court initially applied the Sublease to award indemnity/defense to FCBA and SEFH; appeals consolidated.
- Appellate court (majority) reversed in part: remanded for new trial on damages (due to arbitrary trial time limits and excluded testimony), adjusted lease/indemnity findings to apply Cherry Street lease (not Sublease), limited indemnity to the non-negligent portion, and held CMIC (FBCNO’s insurer) owed FCBA a defense as an additional insured; awards of attorneys’ fees were adjusted accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial time limits & exclusion of testimony (due process) | Time cutoff (10 days) and exclusion of witnesses (husband, family, Dr. Puente) prevented full presentation of damages evidence and violated due process | Defendants: plaintiffs mismanaged time, testimony cumulative, witnesses unnecessary; husband could have testified earlier | Court: time reduction one week before trial was arbitrary; Goodwin factors show limits were unreasonable; exclusion prejudiced plaintiffs; remand for new trial on damages |
| Directed verdicts on loss of consortium (husband) and Lejeune bystander damages (child Petra) | Denial of husband’s testimony deprived proof for consortium and bystander claims | Defendants: evidence insufficient; husband present but strategic decision not to call him | Court: exclusion of husband’s testimony was reversible error; directed verdicts set aside and remanded for testimony/consideration |
| Which lease governs indemnity/defense (Sublease v. Cherry Street lease) | Plaintiffs (FCBA/SEFH) relied on Sublease language to secure full indemnity/defense | FBCNO argued Cherry Street lease controls for the place/act of injury and that SEFH is not a party to that lease | Court: Sublease does not control here; Cherry Street lease governs the accident; SEFH not entitled to defense/fees under Cherry Street lease; FCBA entitled to indemnity only for portion it was not at fault (57.5% adjusted to 42.5% after correction) |
| Additional-insured endorsement and insurer’s duty to defend; entitlement to attorneys’ fees | Plaintiffs (FCBA) argued CMIC’s additional-insured endorsement required defense because injury arose out of FBCNO operations (daycare/road access) | FBCNO/CMIC argued accident did not arise out of FBCNO operations so no duty to defend; lease indemnity language did not expressly obligate payment of attorneys’ fees | Court: under eight-corners rule, petition’s allegations could implicate FBCNO operations; CMIC owed FCBA a defense as additional insured; attorneys’ fees for FCBA’s defense recoverable where tied to defense/coverage (but not for pursuit of indemnity or fees to establish coverage) |
Key Cases Cited
- Meloy v. Conoco, 504 So.2d 833 (La. 1987) (distinguishes indemnity agreements from insurance; duty to defend differs from duty to indemnify)
- Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990) (elements and standard for bystander/Lejeune damages)
- Clement v. Frey, 666 So.2d 607 (La. 1996) (appellate review of fault allocation requires deference; disturb only if manifestly erroneous)
- Bonin v. Westport Ins. Corp., 930 So.2d 906 (La. 2006) (rules of insurance-policy construction; duty-to-defend analysis)
- Mossy Motors, Inc. v. Cameras Am., 898 So.2d 602 (La. App. 4 Cir. 2005) (insurer’s duty to defend under the eight-corners rule; petition must not unambiguously exclude coverage)
- Show and Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 171 So.3d 1136 (La. App. 4 Cir. 2015) (standards for JNOV and appellate review described)
- Goodwin v. Goodwin, 618 So.2d 579 (La. App. 2 Cir. 1993) (factors/guidelines trial courts should follow when imposing time limits on presentation of evidence)