399 So. 2d 655 | La. Ct. App. | 1981
This is a suit for damages arising out of an incident in which plaintiffs Gary A. God-win and Jerome B. Haggard were injured by shots fired by defendants. Rubin Denby and Carey Arceneaux. Subsequent pleadings added State Farm Fire and Casualty Company as a defendant. State Farm filed its first answer to the original and first supplemental petitions on January 29, 1980. In that pleading, which was filed on behalf of Arceneaux but not on behalf of Denby, no specific coverage defenses were raised. Denby filed an answer on his own behalf.
A second supplemental petition was filed by plaintiffs, alleging that State Farm was the insurer of Denby. State Farm amended its original answer on April 10,1980, specifically denying coverage for Denby.
Plaintiffs then filed a third supplemental and amending petition seeking judgment against Buddy Williams Builders, Inc., as the employer of Denby. On May 13, 1980, State Farm filed an answer to the third
Buddy Williams Builders, Inc., answered the third amending petition and third partied State Farm as its insurer. On June 19, 1980, State Farm answered the third party petition, denying coverage and praying for a trial by jury of all issues in the lawsuit.
On September 5, 1980, summary judgment was signed, dismissing plaintiffs’ suit as to Buddy Williams Builders, Inc.
Thereafter, on September 17, 1980, judgment was signed, vacating and setting aside the order for a jury trial. From that judgment, State Farm has appealed.
The trial judge, in his written reasons for judgment, found that since the suit against Buddy Williams had been dismissed, the third party demand and the answer thereto filed by State Farm, including the request for jury trial, “all must fall as though they had never been filed.”
Article 1732 of the Code of Civil Procedure provides:
“A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.”
The only issue as to State Farm raised by the third party demand filed by Buddy Williams Builders, Inc., is coverage, which was denied by State Farm in its answer thereto. Since the answer, which incorporated the request for jury trial, was filed more than ten days after all pleadings directed to the main demand, State Farm was entitled to a jury trial only as to the issue raised by the third party demand. Since that demand related only to the coverage afforded by State Farm to Buddy Williams Builders, Inc., and since Buddy Williams Builders, Inc., was dismissed from the suit on motion for summary judgment, there are no issues remaining to be tried by jury.
The judgment appealed from is therefore affirmed, at State Farm’s cost.
AFFIRMED.
