Robinson v. MoisesRobinson v. Moises
bin this personal injury case, the plaintiffs appeal the trial court’s dismissal with prejudice of defendants, U-Haul and Rep-west. The plaintiffs also take issue with the trial court’s refusal to rule on their petition for declaratory judgment before dismissing U-Haul from the lawsuit. For the following reasons, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Jeffrey Robinson was driving a rented U-Haul truck with two passengers when it collided with a FedEx delivery truck on North Claiborne Avenue, in New Orleans. Mr. Robinson was not insured but he allegedly purchased “risk-protection” from U-Haul as outlined in the rental agreement.
As a result of the accident, the occupants of the U-Haul truck, Mr. Robinson, Marvin Dabney and Martin Avilla, filed a personal injury lawsuit. The named defendants were: Colon Moisés, the driver of the FedEx truck; Evens Badiau Trucking, Inc., the owner of the FedEx truck; Protective Insurance Company, ^FedEx’s insurer; FedEx Custom Critical Inc.; and U-Haul Company of Louisiana. The plaintiffs’ petition alleged that the cause of the accident was the negligence of Mr. Moisés, who was driving the FedEx truck.
Mr. Moisés, Evens, Protective, and FedEx attempted to remove the suit to the Eastern District of Louisiana (EDLA) based on the premise that U-Haul was improperly joined as a non-diverse defendant. However, the EDLA remanded the matter back to state court.
In state court, the plaintiffs amended their petition alleging Repwest Insurance Company,
DISCUSSION
On appeal, the plaintiffs raise three principal assignments of error: 1) the trial erred in granting summary judgment in favor of Repwest; 2) the trial court erred in granting U-Haul’s exception of no cause of action; and 3) the trial court |serred in granting U-Haul’s exception without first hearing the plaintiffs petition for declaratory judgment.
SUMMARY JUDGMENT
First, the plaintiffs assert that the trial court erroneously granted Repwest’s motion for summary judgment. In particular, they maintain that Repwest failed to establish that there was no genuine issue of material fact by offering only an unsubstantiated affidavit.
We review the trial court’s granting of a motion of summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Fleming v. Hilton Hotels Corp., 99-1996, p. 2 (La.App. 4 Cir. 7/12/00),
In its motion for summary judgment, Repwest asserted that it was entitled to summary judgment and dismissal because it did not issue a “policy of liability insurance nor any coverage including uninsured/underinsured motorist coverage insuring U-Haul Co. of Louisiana and/or Jeffrey J. Robinson.” It further argued that since it did not issue a policy of liability or UM coverage, it was not susceptible to Louisiana’s Direct Action Statute. We agree.
Repwest attached the affidavit of its representative, David Benyi, in support of its motion for summary judgment. In the affidavit, Mr. Benyi revealed that he had “knowledge of the policies and procedures of Repwest,” and that he was “familiar with the facts and circumstances of the subject matter of this litigation.” He further stated that:
Repwest Insurance Company did not issue any policy of liability insurance insuring U-Haul Co. of Louisiana, the U-Haul rental vehicle being driven by Jeffrey R. Robinson and/or Jeffrey R. Robinson at the time of the incident which is the subject of this litigation. As such, it did not provide uninsured/underinsured motorist coverage to petitioners.
He further explained that Repwest’s only function was to handle claims on behalf of U-Haul.
In their opposition, the plaintiffs attached the federal remand order, the U-Haul rental agreement, and four pages from Mr. Robinson’s deposition testimony. However, none of the plaintiffs’ evidence indicates that Repwest insured U-Haul or Mr. Robinson.
Given that Repwest submitted an affidavit based on personal knowledge reflecting that it did not provide insurance in this case, we find that it met its burden of proof. Since the plaintiffs failed to produce factual support sufficient to establish that they will be able to satisfy their evi-dentiary burden of proof at trial, there is no genuine issue of material fact. Accordingly, the summary judgment is affirmed.
NO CAUSE OF ACTION
Second, the plaintiffs assert that the trial court erred in granting U-Haul’s exception of no cause of action. The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition. La. C.C.P. arts. 927, 931; Owens v. Martin,
In the petition, the plaintiffs name U-Haul as a liability insurer, yet the insured driver of the U-Haul, Mr. Robinson, was not named as a defendant in this case, and the petition contains no allegation that he was negligent. Also, in the | ^memorandum in opposition to U-Haul’s exception, the plaintiffs raise the issue of whether U-Haul’s policy provided UM coverage in the case of an excess judgment; however, FedEx’s insurance declarations page reflects, and the plaintiffs’ counsel conceded at the hearing on the exception, that the damages will not exceed FedEx’s policy limits. After considering the pleadings and evidence, admitted without objection, in this matter, it is clear that the plaintiffs have failed to state a cause of action against U-Haul, as an insurer. Therefore, the trial court judgment sustaining U-Haul’s exception of no cause of action is affirmed.
Nevertheless, where a plaintiff may be able to remove the grounds of the defendant’s peremptory exception so as to properly state a cause of action, he should be afforded an opportunity to amend the petition. Massiha v. Beahm,
DECLARATORY JUDGMENT
Finally, the plaintiffs’ argue that the trial court erred in granting U-Haul’s exception without first hearing the plaintiffs petition for declaratory judgment. |7Given that we reversed U-Haul’s dismissal and that the plaintiffs’ petition for declaratory judgment is still pending, we pretermit ruling on the issue as it is premature.
EX PARTE MOTION TO SUBSTITUTE PROPER PARTY AS PLAINTIFF
Counsel for Mr. Robinson filed an Ex Parte Motion to Substitute Proper Party Plaintiff with this Court on April 15, 2015, because Mr. Robinson passed away on November 11, 2014.
Rule 2-9 of the Uniform Rules, Courts of Appeal provides that “[t]he rules and procedures for substitution of parties provided by LSA-C.C.P. Arts. 801-807 shall regulate the substitution of parties.” However, as we are without enough evidence to determine the proper party and have remanded this matter to the trial court for further proceedings consistent with this opinion, we leave the determination of the proper parties for the trial court on remand. See In re Mary Belsom Welsh Qualified Trust,
DECREE
For these reasons, the trial court judgment granting Repwest’s motion for summary judgment and U-Haul’s exception of no cause of action is affirmed. However, we reverse the trial court’s dismissal with prejudice of U-Haul without first ordering an amendment of the petition. Therefore, the matter is remanded for further proceedings consistent with this opinion.
LOVE, J„ CONCURS IN PART AND DISSENTS IN PART AND ASSIGNS REASONS
I concur with the results reached by the majority except the finding that the Plaintiffs did not state a cause of action. I respectfully dissent from the majority’s conclusion that the Plaintiffs failed to initially state a cause of action, but would also allow the opportunity to amend pursuant to La. C.C.P. art. 934.
The Plaintiffs filed suit against U-Haul in its alleged capacity as Mr. Robinson’s “vehicle liability insurer under a written rental contract.” Therefore, if FedEx’s insurance does not cover all of the Plaintiffs’ damages for some reason, as determined by the factfinder after a trial on the merits, then the uninsured/underinsured coverage allegedly purchased from U-Haul
“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” La. C.C.P. art. 934. “The decision to allow amendment is within the trial court’s discretion.” Insulation Technologies, Inc. v. Industrial Labor and Equipment Services, Inc., 13-0194, p. 9, (La.App. 4 Cir. 8/14/13),
Notes
. Repwest was mistakenly named Republic Western Insurance Company in the amended petition.
. La. C.C.P. art. 934 states: ‘'[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.”
. Since additional claims, such as negligence on the part of Mr. Robinson, could be pled in the amended petition, allowing the plaintiffs to amend would not constitute a vein in useless act. See Smith v. State Farm Ins. Cos., 03-1580, p. 6 (La.App. 4 Cir. 3/3/04),
. U-Haul contends that it is self-insured.