Chavers v. Bright Truck LeasingChavers v. Bright Truck Leasing
Jeffrey A. Rhoades, Swift & Rhodes, Lafayette, Louisiana, for Defendants/Appellees Southern County Mutual Insurance Company, Associates Leasing, Inc., and Bright Truck Leasing Corporation.
G. Andrew Veazey, Bradford H. Felder, Huval, Veazey, Felder & Aertker, L.L.C., Lafayette, Louisiana, Joseph L. McReynolds, Beverly A. Aloisio, Deutsch, Kerrigan & Stiles, L.L.P., Edgar John Litchfield, Berrigan, Litchfield, Schonekas, Mann, Traina & Thompson, L.L.C., Peter F. Liberto, New Orleans, Louisiana, for Defendant/Appellee Reliance Insurance Company (In Liquidation).
Donald D. Landry, Perrin, Landry, deLaunay & Durand, Lafayette, Louisiana, for Defendants/Appellees Homer B. Lingo and Lingo International, Inc.
Ralph E. Kraft, Jessica Devitt, Preis, Kraft, & Roy, Lafayette, Louisiana, for Defendant/Appellee Walter Mortensen Insurance.
Musa Rahman, Johnson, Stiltner & Rahman, Baton Rouge, Louisianа, for Intervenor/Appellee Louisiana Workers\’ Compensation Corporation.
Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
GENOVESE, Judge.
In this personal injury case, Plaintiffs, Ronald K. Chavers, individually, and as tutor of the minors, Christopher Shane Chavers and Megan Elizabeth Chavers, and Gloria Chavers, individually (collectively Chavers), appeal a judgment of the trial court granting the declinatory exception of lack of subject matter jurisdictiоn filed by Defendant, Reliance Insurance Company (Reliance). Chavers also appeals the trial court\‘s grant of the motion for summary judgment filed by the Defendant, Associates Leasing, Inc. (Associates). For the following reasons, we affirm.
FACTS
On March 2, 1995, Ronald Chavers was operating a commercial truck-trailer rig that overturned while descending a mountain in Utah, which Chavers alleges was the result of defective brakes. As a result of the accident, Chavers filed suit against several defendants, including Associates,1 the owner of the truck, and Reliance, the insurer of the truck and the insurer of the garage responsible for the mechanical upkeep of the truck. Chavers also named as a defendant, Bright Truck Leasing Corporation (Bright Leasing), the lessee of the truck from Associates, and the sublessor of the truck to Profco, Inc. (Prоfco). Profco was also the owner of the trailer and the entity which hired Ronald Chavers to drive the rig.
The procedural history of this matter is extensive. However, pertinent to the issues in this appeal are the exception of lack of subject matter jurisdiction filed by Reliance and the motion for summary
ISSUES
The following issues are raised by Chavers for our review:
1. whether the trial court erred in not considering only Pennsylvania\‘s status as a reciprocal state as defined by the Louisiana Uniform Insurance Liquidation Act;
2. whether the trial court erred in treating Reliance\‘s motion as an exception of jurisdiction over subject matter rather than an exception of res judicata;
3. whether the trial court erred in not considering whether the Pennsylvania Commonwealth Court fully and fairly considered its jurisdiction over the subject matter and jurisdiction over the person of Ronald Chavers; and
4. whether the trial court erred in concluding that there was no genuine issue of material fact and, as a matter of law, Associates was entitled to a judgment of dismissal.
LAW AND ARGUMENT
Motion to Strike
On appeal, Chavers filed a motion to strike a statement made by Reliance in its appellate brief, asserting that there is no evidence in the reсord on appeal of the contents of said statement. Action on this motion was referred to the merits of this appeal.
Pursuant to
La.[Code Civ.]P. art. 2164 , an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated.La.[Code Civ.]P. arts. 2127 and2128 ; Official Revision Comment (d) forLa.[Code Civ.]P. art. 2127 . An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Davis v. Anderson, 451 So.2d 1302 (La.App. 1st Cir.1984).
Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1 Cir.1991), writ denied, 584 So.2d 1169 (La.1991). Additionally, “[t]he appellate briefs of the parties are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal.” Id. at 1027 (citing Capital Drilling Co. v. Graves, 496 So.2d 487 (La.App. 1 Cir.1986); Fred H. Moran Constr. Corp. v. Elnaggar, 441 So.2d 260 (La.App. 1 Cir.1983)).
In brief, Reliance states that it will “extend the deadline for Appellants to file their Proofs of Claim by December 31, 2006,” with the Pennsylvania Rehabilitation Court. However, after a thorough review of the record, we note that there is no evidence of such an extension within the record on appeal. Consequently, Chavers\‘s motion to strike is granted.
Exception of Lack of Subject Matter Jurisdiction
Chavers asserts that the trial court erred in treating Reliance\‘s exception as
Subject matter jurisdiction is defined in
In support of its exception of lack of subject matter jurisdiction, Reliance argues that Pennsylvania\‘s status as a “reciproсal state” under the Louisiana Uniform Insurance Liquidation Act (UILA),
On October 3, 2001, Pennsylvania\‘s Insurance Commissioner obtained an order from the Commonwealth Court of Pennsylvania (Commonwealth Court) which placed Reliance, a Pennsylvania corporation domiciled in the state of Pennsylvania, in liquidation. The order of the Commonwealth Court provided for a stay of all actions “at law or equity” against Reliance as follows:
Unless the Liquidator consents thereto in writing, no action at law or equity, or arbitration or mediation, shall be brought against Reliance or the Liquidator, whether in this Commonwealth or elsewhere, nor shall any existing action be maintained or further prosecuted after the date of this Order. All actions, including arbitrations and mediations currently pending against Rеliance in the courts of the Commonwealth of Pennsylvania or elsewhere are hereby stayed. All actions, arbitrations, and mediations against Reliance or the Liquidator shall be submitted and considered as claims in the liquidation proceedings.
The liquidation of Reliance during the course of the pending litigation resulted in a previously filed exception of lack of subject matter jurisdiction by Reliance, which wаs denied by the trial court. The exception of lack of subject matter jurisdiction now before this court arose following the recent decision of the Louisiana Supreme Court in All Star Adver. Agency, Inc. d/b/a/ All Star Auto. Group v. Reliance Ins. Co., 04-1544 (La.4/12/05), 898 So.2d 369, which prompted Reliance to re-urge its exception. Reliance contends that the decision in All Star mandates the granting of its exception of lack of subject matter jurisdiction. We agree with Reliance that the supreme court\‘s decision in All Star is controlling and that its application resolves the issue of lack of subject matter jurisdiction.
In All Star, Reliance filed an exception of lack of subject matter jurisdiction contending that the Fifteen Judicial
As stated above, this court is bound by the decision of the Louisiana Supreme Court holding that Pennsylvania is a reciprocal state. We must, therefore, turn to the UILA to determine whether the Fifteenth Judicial District Court has subject matter jurisdiction over the present claims.
Louisiana Revised Statutes 22:760 contains the relevant provision within the UILA for claims asserted against foreign insurers, stating as follows:
A. In a delinquency proceeding in a reciprocal state against an insurer domiciled in that stаte, claimants, against such insurer, who reside within this state may file claims either with the ancillary receiver, if any, appointed in this state, or with the domiciliary receiver. All such claims must be filed on or before the last date fixed for the filing of claims in the domiciliary delinquency proceeding.
B. Controverted claims belonging to claimants residing in this state may either (1) be proved in the domiciliary state as provided by the law of that state, or (2) if ancillary proceedings have been commenced in this state, be proved in those proceedings. In the event that any such claimant elects to prove his claim in this state, he shall file his claim with the ancillary receiver in the manner provided by the law of this state for the proving of claims against insurers domiciled in this state, and he shall give notice in writing to the receiver in the domiciliary state, еither by registered mail or by personal service at least forty days prior to the date set for hearing. The notice shall contain a concise statement of the amount of the claim, the facts on which the claim is based, and the priorities asserted, if any. If the domiciliary receiver, within thirty days after the giving of such notice, shall give notice in writing to the ancillary receiver and to the claimant, either by registered mail or by personal service, of his intention to contest such claim, he shall be entitled to appear or to be represented in any proceeding in this state involving the adjudication of the claim. The final allowance of the claim by the courts of this state shall be accepted as conclusive as to its amount, and shall also be accepted as conclusive as to its priority, if
any, against special deposits or other security located within this state.
Thus, the application of
The liquidation proceedings involving Reliance were instituted in the state of Pennsylvania, the domiciliary state of Reliance\‘s incorpоration. There have been no ancillary proceedings instituted in Louisiana. Therefore, pursuant to the provisions of
Jurisdiction Over the Person
Chavers also assigns as an error of the trial court, the trial court\‘s failure to consider whether the Commonwealth Court fully and fairly considered its jurisdiction over the person of Ronald Chavers.
Louisiana Code of Civil Procedure Article 6 defines personal jurisdiction as “the legal power and authority of a court to render а personal judgment against a party to an action or proceeding.” By definition, personal jurisdiction relates only to a party defendant against whom a judgment is sought. Therefore, the issue of personal jurisdiction only arises when a defendant asserts that a tribunal lacks the authority to exercise jurisdiction over his person. In the instant matter, the Chavers are plaintiffs. The Chavers are seeking a judgment against Relianсe. Thus, the Commonwealth Court\‘s personal jurisdiction over Chavers is of no consequence. The issue is the exclusive jurisdiction of that court over Reliance. We find no merit to Chavers\‘s assertion that the trial court erred in not considering Pennsylvania\‘s jurisdiction over the person of Ronald Chavers.
Motion for Summary Judgment
“Appellate courts review summary judgments de novo, using the same criteria that govern the trial court\‘s consideration of whether summary judgment is appropriate.” Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137 (citing Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783). The aрpellate court must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”
Admissibility of Affidavit
Chavers contend that the trial court erred in considering the affidavit of Ken Freeman (Freeman) in support of Associate\‘s motion for summary judgment on the grounds that the affidavit was not based upon his personal knowledge as required by
Liability of Associates
Chavers did not assert any negligent act or omission by Associates as a cause of the accident in question. Rather, Chavers\‘s claims against Associates are premised on its ownership of the truck which Ronald Chavers was driving at the time of the accident. Associates filed a motion for summary judgment contending that its status as an owner of the vehicle is insufficient for the imposition of liаbility under Louisiana law. We agree.
The record reveals that in 1990 Associates purchased the truck at issue for the purpose of leasing it to Bright Leasing pursuant to a “TRAC” leasing agreement6 between the parties. The vehicle was purchased by Associates as part of a block of vehicles which had been ordered by Bright Leasing. Associates never took possession of the vehicle. Instead, the vehicle was shipped directly from the dealer to Bright Leasing. In 1993, Bright Leasing subleased the truck to Ronald Chavers\‘s employer, Profco. It was approximately two years later, in 1995, that the vehicle was involved in the subject accident allegedly due to defective brakes.
Associates\’ status as the owner of the truck in and of itself does not render it strictly liable under Louisiana law for damages resulting from an alleged defect in the vehicle. Louisiana Civil Code Article 2317 provides, in pertinent part, that “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” The element of “custody” under
[La.Civ.Code] art. 2317 provides: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. . . .” In Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991), this Court explained:This article imposes strict liability based on a person\‘s relationship of custody (garde) to a defective thing which creates an unreasonable risk of injury to others. King v. Louviere, 543 So.2d 1327, 1329 (La.1989); Loescher v. Parr, 324 So.2d 441, 446 (La.1975). As a general principle, the guardian is in a better position than the innocent victim to detect, evaluate and takе steps to eliminate an unreasonable risk of harm arising in a defective
thing. Ross [v. La Costa de Monterville], 502 So.2d [1026,] 1032 [(La.1987)]; Kent v. Gulf States Utilities Co., 418 So.2d 493, 497 n. 5 (La.1982). In King, we determined that “[t]he things in one\‘s care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them.” King, 543 So.2d at 1329. Moreover, this Court explained that “[u]nder most circumstances ownership alone establishes the requisite benefit, control and authority to find gаrde.” Doughty, 576 So.2d at 464. However, although ownership creates the presumption of garde, this presumption is rebuttable by the owner. Finally, whether the law imposes a duty of garde upon a party is a factual inquiry based upon the determination of (1) what benefit the party received from the thing, and (2) what kind of direction and control the party had over it. Doughty, 576 So.2d at 464.
Essential to a finding of liability under article 2317 is a finding of the defendant\‘s relationship of сustody to the defective thing.
Giorgio v. Alliance Operating Corp. 05-02, p. 13 (La.1/19/06), 921 So.2d 58, 73. Thus, the jurisprudence is clear that custody and ownership are not synonymous. Under
As set forth above, the uncontested facts are that Associates never did have physical possession of the vehicle nor did Associates have control over it.7 Therefore, Associates did not have the requisite “custody” under
DECREE
For the foregoing reasons, the judgment of the trial court granting the exceрtion of lack of subject matter jurisdiction in favor of Reliance Insurance Company is affirmed. The judgment of the trial court granting the motion for summary judgment in favor of Associates Leasing, Inc. is also affirmed.
Costs of this appeal are assessed against Plaintiffs/Appellants, Ronald K. Chavers, individually, and as tutor of the minors, Christopher Shane Chavers and Megan Elizabeth Chavers, and Gloria Chavers, individually.
AFFIRMED.