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June 3, 2025
Recent Changes and Important Decisions Concerning
Appellate Law in Louisiana
INTRODUCTION
In representing our clients, we occasionally call their attention to changes in particular areas of the law and recent decisions that may be of interest. As a courtesy, we have compiled a detailed overview of appellate law in Louisiana as well as recent appellate decisions of interest.
APPEALS IN LOUISIANA
Louisiana’s Unique Legal Heritage as the Only “Civil Law” Jurisdiction in the United States
Many times our clients inquire about legal practice in Louisiana, and Louisiana’s special status as the only “civil law” state in the United States. To simplify the distinction, all other states traditionally follow the “common law,” under the English tradition, due to their own particular history of incorporation into the United States. However, Louisiana follows the “civil law” tradition, more commonly used in Europe and those other countries which follow in large part the Napoleonic “Civil Code,” or other similar “civil law” sources. This is due to Louisiana’s unique history as a former French and Spanish colony, codification of the laws in Louisiana, and the way law is actually practiced in Louisiana state courts.
The so-called “civil law,” which derived from roman and other sources, was in place long before Napoleon enacted a since “civil code” in France in 1804. Napoleon’s code sought to unify the laws in a single book that was easily accessible to everyone, judge, lawyer, and ordinary citizen, alike. The Napoleonic Code is generally considered a benchmark for Louisiana jurisprudence, as well as multiple other “civil law” countries throughout the world. During his reign, Napoleon appointed a committee of lawyers to draft a single and unified “civil code.”6 Paramount in this concept is that the code is “legislation,” the primary source of “law” – not judicial decisions, which are applied as an equally important source of law under the English “common law” system.
Meanwhile, Louisiana, a former French and Spanish colony, was admitted to statehood in the United States of America in 1812. The new governor was given the task of deciding which law should apply in the newly admitted state. As Loyola University College of Law Professor David W. Gruning explains:
French explorers arrived on the American coast of the Gulf of Mexico in 1682. In 1712, the Crown decreed that the Custom of Paris would govern the colony, and placed the colony effectively in the hands both of private interests and of a Superior Council. After failure of the private interests, the Crown assumed full control in 1731. In 1762, France transferred Louisiana to Spain. The latter, however, did not achieve effective control until 1769. Thereafter Spain administered Louisiana, perhaps more effectively than had France. Spain established its own system of government, replacing the Superior Council with a Cabildo or city council, and applying Spanish colonial law. Later, in 1800, Napoleon engineered the return of Louisiana to France, but his intentions in the Caribbean having been frustrated, he sold Louisiana to the United States in April 1803. The French flag went up over Louisiana for a few weeks in the fall of that year, being replaced definitively by the American flag by the end of the year. Louisiana had become an American territory. Now a part of the United States, Louisiana (then the Territory of Orleans) faced the question of what law would be applicable.[1]
After cessation of the territory to the United States, delegates governing the newly acquired territory codified the first “code” in Louisiana, in 1808. It is appropriately titled: “A Digest of the Laws in Force in the Territory of Orleans,” or “The Digest of 1808.” The Digest of 1808 stylistically resembled Napoleon’s French Civil Code, but it incorporated other roman laws and parts of the law used by Spain, which also governed the Louisiana territory. The 1808 Digest remained in effect when Louisiana became a state in 1812.
The 1808 Digest was formally revised and evolved into the Louisiana Civil Code of 1825, which was enacted by the Louisiana legislature to embody a single and comprehensive civil code. Due to continual changes and refinements by the legislature, a new Civil Code of 1870 replaced the 1825 Code. Interestingly, the 1870 Code, written only in English, created confusion because the prior codifications were both in French and English, which tended to affect the interpretation of words by the Courts in applying the code, as Louisiana became officially unilingual over the years.
The 1870 Code continues to exist as the modern “Louisiana Civil Code,” with amendments over the years. It remains in place as the single “civil code,” with modification to its various articles, over time, by the legislature.
While most of Louisiana's “private law” embodied in the Civil Code retained a civil law orientation that existed during the colonial rule of France and Spain, Louisiana's public law, lending laws, criminal law and civil procedures are more akin to Anglo-American common law norms that were brought to the United States from England. Thus, Louisiana is truly considered a “mixed jurisdiction,” but both lawyers and judges alike are fiercely protective of the “civil law” tradition embodied in our primary source of law, the “Louisiana Civil Code.”
This tradition is particularly important in the appellate arena, because, in purely state civil law disputes, Louisiana Appellate Courts are routinely called on to interpret code articles, and are less limited than judges from other states who are strictly bound by “stare decisis” – or jurisprudential precedent.
“Jurisprudence Constante” vs. “Stare Decisis”
As a civil-law state, the Louisiana courts are quick to note that they are not bound by prior rulings, as are common-law courts of appeal, under the doctrine of “stare decisis” or “judicial precedent.” Under the Louisiana civil law tradition, legislation is the “primary” source of law, La. Civ. Code. Art 1, 2. Thus, a judge is bound to apply the law (i.e., the Acts passed by the Legislature), not another case. A judge therefore is not technically “bound” by prior decisions of the courts, and may decide that the facts of one case warrant application of the law as it was applied in another case, or that another court has incorrectly “interpreted” an Act of the Legislature or a statute.
At the same time, Louisiana courts may give certain deference to a long-standing line of judicial interpretations of the law, in a concept known as “jurisprudence constante,” which is French for “stable” or “constant” jurisprudence. This is a legal doctrine according to which a long series of previous decisions applying a particular legal principle or rule is highly persuasive. Nevertheless, it is not technically binding or controlling in subsequent cases dealing with somewhat dissimilar issues of law and fact.
The Louisiana Supreme Court has noted the differences between the two legal doctrines: a single court decision under common-law can provide sufficient foundation for stare decisis. However, a series of adjudicated cases, all in accord with each other, form the basis for jurisprudence constante. Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales & Use Tax Comm'n., 903 So.2d 1071 (La. 2005).
Adding complexity to the issue, the doctrine in Louisiana is technically considered a “secondary,” not a “primary” source of law. Statutes and laws are always the primary, binding source of law in Louisiana, under the Civil Code. Cases, including similarly decided ones, are merely a secondary source of law, which may not be authoritative, and do not rise to the level of pure legislation as the “primary” source of law.
However, in effect, the Courts of Appeal and Louisiana Supreme Court routinely apply similar decisions, for the sake of consistency of the caselaw. All Courts are, however, quick to note that they are not “bound” by prior cases or stare decisis. The Supreme Court will easily reverse courses if it disagrees with a prior decision in the face of a new law, or what it considers an inappropriate interpretation of the law.
Of course, there is an exception for decisions of the United States Supreme Court, insofar as federal, and not state law is involved, under concepts of federalism. After all, all courts in Louisiana are bound by direct decisions from the United States’ highest court of law.
Louisiana Appellate Court Structure
Louisiana has five intermediate level circuit courts of appeal, which have jurisdiction over the parish or district courts with their statutory jurisdiction. Decisions of the Courts of Appeal are then reviewable by the Louisiana Supreme Court, which is the highest court of appeal in Louisiana.
The five Circuit Courts of Appeal have varied numbers of elected judges, according to legislation particular to their district, who sit in panels of three to hear and decide cases. The Supreme Court always sits en banc, with all seven justices, who are elected from throughout Louisiana, considering cases before the Supreme Court.
A party has a “right to appeal” a final judgment to the relevant circuit Court of Appeals, meaning that the Court of Appeals must hear and decide all timely and properly filed appeals. However, absent some special jurisdictional provision, a party has no “right” of appeal to the Louisiana Supreme Court. Rather, the Supreme Court considers “writs,” much like the U.S. Supreme Court, and grants appeals on a purely discretionary basis.
While final judgments are appealable, and fall under the Court of Appeals’ constitutional power of appellate review, the Courts of Appeal and the Supreme Court may also exercise “supervisory jurisdiction” to review interlocutory (non-final) rulings from any trial court. Any party aggrieved from an interlocutory ruling issued prior to a final judgment in a trial-level case may petition the proper appellate courts for “supervisory review.” This is done by filing an Application for Supervisory Writs. Unlike appeals, writs are entirely discretionary. If the Court decides to deny writs, any interlocutory ruling may fall under the final appellate review of a case, but if a Court of Appeals grants an application, it undertakes supervisory jurisdiction over the trial court proceedings and may affirm, reverse, or modify a trial court interlocutory order as the panel sees fit.
In addition to full appeals, we routinely file such writ applications to question the propriety of granting or denying dispositive motions prior to trial, crucial evidentiary rulings, and the like.
Processing of Appeals
An appeal is accomplished by filing a simple petition or motion for appeal, and posting the appropriate bond. After the appeal is filed, the clerk of the court has the task of compiling the official record for the Court of Appeals, and will provide an estimate to the party moving for the appeal, which must be paid to proceed. La. C.C.P. 2126.
The record on appeal includes a duplication of all record pleadings and exhibits, as well as transcription of all hearings and trials, and can be very expensive. The attorney who filed the appeal usually has a twenty-day period to pay these costs, upon provision of the estimate, under the penalty of dismissal of the appeal. La. C.C.P. 2126.
Upon payment of the estimate, the clerk will begin the compilation, which may take several weeks to complete. Once completed, the court will send the record to the governing Court of Appeals. This notice officially begins the "appeal," and the deadlines to brief the case before the Court of Appeals.
The appellant will have 25 days from the date of “lodging” to file an Appellant Brief, and the appellee will have 20 days from the filing of the Appellant Brief to file a brief as Appellee. The appellant will then have 10 days to file a Reply Brief. Extensions of time, especially with large records, are usually granted. If any briefing is necessary thereafter, it must be with leave of the Court of Appeals.
Argument is usually requested by the Appellant, and in normal circumstances will be granted. Argument generally occurs within a month or two of the date of the final brief.
Under the Louisiana Constitution, argument first goes to a panel of three appeal judges. Judges are randomly selected, and have clerks to assist them with reading the briefs, researching the issues, and considering all issues raised on appeal. It takes the vote of all three judges to reverse. However, if there is disagreement among the three judge panel, the case will usually go to a panel of five, with two additional judges being randomly allocated to join the panel.
After the panel reaches a majority decision, the court will issue a written opinion, which is then mailed to all counsel. As the opinion is written and circulated among all judges, it may take a few weeks for the Court to decide on the wording of the judgment, and if judges concur or dissent from the majority. Thus, as you can see, the appeal process will take some time to complete.
Depending on the opinion issued by the Court of Appeals, a litigant might have grounds to file an Application for Rehearing in the Court of Appeals. Such applications are decided much more quickly, usually within a matter of weeks. Rehearing petitions must be filed within fourteen days after a final decision. Any party that disagrees with the ruling might file a rehearing, if warranted.
Review by the Louisiana Supreme Court
After a Court of Appeals renders a written decision, and disposes of any applications for rehearing, a party may further file a discretionary appeal to the Louisiana Supreme Court by means of a writ application seeking a writ of certiorari. However, review in the Supreme Court is entirely discretionary, and usually requires a showing of “writ grant” considerations under Rule X of the Louisiana Supreme Court rules. These include an abuse of discretion, abuse of the law or procedural rules, conflicts among circuit caselaw, policy issues, or change in precedent.
An application in the Supreme Court must be filed within 30 days of either the issuance of the Court of Appeals’ original opinion, or its opinion on rehearing. That process is a streamlined briefing process. The application consists of a brief with a limited appendix, and the opponent will have an opportunity to file an Opposition Memorandum. The applicant may be allowed to file a reply brief, then the case is submitted.
Initial consideration is without oral argument, and entirely confidential. The Supreme Court may deny or grant the writ, and if writs are granted, a process like that in the Court of Appeals occurs in that Court, with re-briefing, oral argument, and the eventual rendition of an opinion.
Some Surprising Statistics
Each year, the Louisiana Supreme Court releases an Annual Report, in which it outlines the state of the Louisiana Judiciary. The Annual Report also contains information on how courts throughout the state are handling cases. That report reveals some interesting information regarding the workings of the Louisiana Supreme Court and Louisiana Courts of Appeal, and some very surprising statistics, as far as appeals are concerned. The most recent report, which was just published, compiles information regarding all Louisiana Courts’ operations in 2024.
As briefly touched on, above, there are generally three levels of courts in Louisiana for ordinary civil litigation: the state trial-level “parish” or “district courts;” the five Louisiana Circuit Courts of Appeal; and the Louisiana Supreme Court.[2]
At present there are 42 numerically identified “Judicial District Courts” in Louisiana which are comprised of one or more of the various Louisiana parishes. Some districts contain more than one parish. There is also a Civil District Court for the Parish of Orleans, Louisiana. However, each of these “judicial district courts” is considered the “first stop,” or trial-level court for most civil litigation.
The five Louisiana Circuit Courts of Appeal review trial court rulings in their particular districts, under constitutional grants of appellate and supervisory review. Several judicial district courts may be under the review of a single Court of Appeals. The five Circuit Courts of Appeal are housed in Baton Rouge, Shreveport, Lake Charles, New Orleans, and Gretna, Louisiana, respectively.
There are presently 53 total sitting Court of Appeals judges. The number of elected judges per appellate bench differs by circuit, according to the underlying population of the parishes falling under that particular Court of Appeals’ jurisdiction. The legislature creates judgeships in order to keep the work load more or less equal given population and statistical trends.
The Louisiana Supreme Court has 7 sitting justices that are elected from districts ranging over the entire state. The present sitting Justices in the Louisiana Supreme Court are: Chief Justice John Weimer, and Associate Justices William Crain, John Guidry, Cade Cole, Jay McCallum, Jefferson Hughes and Piper Griffin.
MOST RECENT APPEAL AND WRIT STATISTICS
Louisiana Supreme Court:
The 2024 Annual Report shows that 608 Writ applications were filed in civil matters in the Louisiana Supreme Court during 2024. But, only 74 were granted. This yields only about a 12% chance of having a writ granted for further review in the Supreme Court, which as noted, is purely discretionary.
Only 29 civil cases were argued in 2024, with 28 resulting full “opinions.” The other case was likely disposed of by per curium orders, or some other type of order or action.
While the statistics cannot tell whether each writ grant resulted in a reversal, or result different from a Court of Appeals, a writ must first be granted in order for that Court to take action in a civil case and render an opinion. Thus, the chances of securing a writ grant are very slim.
While these numbers may appear to be low, the Supreme Court is also busy with other types of appeals, including criminal appeals, mandatory death sentence cases, judge and attorney discipline, bar admissions, and other types of review.
The Supreme Court also heard only 2 direct civil appeals in 2024. Such cases may arise from lower court rulings regarding constitutionality of laws, or other issues where a direct appeal to the Louisiana Supreme Court is expressly allowed.
Also striking in the Annual Report is that, in 2024, 27 Applications for Rehearing were filed in civil matters, but the Court granted only 3 of these Applications. Such applications are only to be filed after the Court renders a decision on the merits. In recent years, the number has been closer to 1 or zero. But, the higher amount of rehearing applications granted in 2024 may be due changes in the bench during that period, due to mandatory retirement or otherwise.
The Supreme Court also provides statistics as to criminal cases, and cases of original jurisdiction which generally are not applicable to our representation. But the statistics as they relate to civil filings show how difficult it is to successfully secure review in the Louisiana Supreme Court.
First Circuit Court of Appeals:
324 civil appeals were filed in the First Circuit in 2024.
328 civil Writ Applications were filed. Of that number, only 89 writs were granted. This equates to about a 27% chance of a writ being granted in the First Circuit.
Of the total cases heard by that Court, the Court rendered 287 formal opinions and acted on only 77 Applications for Rehearing. Some writs must be fixed for hearing, so there is no differentiation as to arguments regarding appeals or writs, and resulting opinions after argument.
These statistics again show the difficulty of getting writs granted by a Court of Appeals. The statistics also reveal that many of the appeals or writs were apparently dismissed or denied. Or, they were otherwise resolved before oral argument, or prior to any formal opinion.
Second Circuit Court of Appeals:
149 civil appeals were filed in the Second Circuit in 2024.
100 civil Writ Applications were filed. Of that number, only 22 writs were granted. This equates to a 22% chance for a writ grant in the Second Circuit.
Of the total cases heard by that Court, the Court rendered 131 formal opinions and acted on only 19 Applications for Rehearing.
Third Circuit Court of Appeals:
195 civil appeals were filed in the Third Circuit in 2024.
187 civil Writ Applications were filed. Of that number, only 41 writs were granted. This equates to about a 21% chance of a writ grant in the Third Circuit.
Of the total cases heard by that Court, the Court rendered 184 formal opinions and acted on only 23 Applications for Rehearing.
Fourth Circuit Court of Appeals:
217 civil appeals were filed in the Fourth Circuit in 2024.
274 civil Writ Applications were filed. Of that number, only 24 writs were granted. This equates to just under a 9% chance for writ grant in the Fourth Circuit. This makes the Fourth Circuit, at least for the calendar year of 2024, by far the most difficult court in which to secure a writ grant to review an interlocutory ruling.
Of the total cases heard by the Fourth Circuit, the Court rendered 222 formal opinions and acted on only 48 Applications for Rehearing.
Fifth Circuit Court of Appeals:
133 civil appeals were filed in the Fifth Circuit 2024.
140 civil Writ Applications were filed. Of that number, only 26 writs were granted. This equates to about an 18.5% chance of a writ grant in the Fifth Circuit.
Of the total cases heard by that Court, the Court rendered 149 formal opinions and acted on only 25 Applications for Rehearing.
CONCLUSION
The statistics in the Annual Reports over the years show how difficult and rare it is to get interlocutory review in the Louisiana Courts of Appeal, and how even more difficult it is to get the Supreme Court to review any civil case, at all. Such statistics show why it is important to hire an experienced appellate counsel who can attempt to resolve unfavorable rulings during trial - by writs to the relevant Court of Appeals - or after trial and appeal, in the Louisiana Supreme Court. Chances of effective review are very rare, and should be taken seriously.
The statistics also change every year, but are somewhat consistent. While the Court of Appeals must hear all appeals after a final judgment, they generally grant writs to review interlocutory rulings in only about 15-20% of instances, or less, with the Fourth Circuit, at least in 2024, having granted the least amount of writ applications of all the Circuit Courts of Appeals. The number of writ grants in 2024 was surprisingly low, and somewhat shocking.
The statistics also show, over time, a slightly greater than a 10% chance of having the Supreme Court hear a case, from an aggrieved ruling in a Court of Appeals. This is consistent and somewhat usual, as the Supreme Court considers itself a “policy court,” and not an “error correcting court.” It reserves review for serious over-arching issues affecting the jurisprudence as a whole, rather than seeking to correct individualized error, even if present, in trial and appellate decisions. Likewise, after appeal, or a ruling on a writ, review by rehearing is even more limited, in all courts. Thus, appeals both interlocutory and final, should be given serious consideration and skilled handling.
RECENT SIGNIFICANT APPELLATE DECISIONS IN CASES HANDLED BY DEGAN, BLANCHARD, & NASH, AND OTHER DECISIONS OF NOTE
Thomas v. La. Children’s Med. Ctr., 24-447 (La. App. 4th Cir. 8/28/24)
The firm recently and successfully filed an application for supervisory writs, or interlocutory appeal, for a potentially four-million-dollar adverse ruling in a Louisiana State district court. That case involved a claim for alleged medical malpractice filed by the parents of deceased young patient who unfortunately died while hospitalized. The plaintiffs sought to invoke a Louisiana Supreme Court decision in Bozeman v. State, 879 So.2d 692 (La. 2004), to present as evidence over four million dollars in Medicare “write offs” as damages to which they were entitled. Under Bozeman certain payments made by other insurance are not subject to exclusion as a “collateral source,” and may be used as evidence of plaintiff’s damages. The trial court granted summary judgment on the issue, ruling that the write-offs were not excluded, and could be introduced as evidence to prove damages.
Our firm filed an interlocutory appeal, arguing first, that the trial court had misapplied the Bozeman decision, and second, that the plaintiff’s evidence was insufficient to support a summary judgment under La. Code Civ. Pro. Art 966. The plaintiffs filed a pointed opposition brief.
In a unanimous opinion, the Louisiana Fourth Circuit Court of Appeals reversed the decision and remanded the case. The Court of Appeals also denied plaintiffs’ petition for rehearing.
The Court of Appeals reversal was based on our argument that plaintiff failed to meet its Summary Judgment burden under La. Code Civ. Pro. 966, as well as our argument that the Court misapplied Bozeman. Plaintiffs are presently seeking review with the Louisiana Supreme Court, which we have opposed. The case cite is Thomas v. La. Children’s Med. Ctr., 24-447 (La. App. 4th Cir. 8/28/24).
Green v. Maison: No Solidary Obligation Exists Between An Insolvent Insurer And The Louisiana Insurance Guaranty Association
DBN sought appellate review of a trial court’s denial of an exception of prescription and successfully had the trial court’s decision reversed and the plaintiffs’ case dismissed in full.
Plaintiffs filed a Petition for Damages arising out of Hurricane Ida on August 28, 2023, against their homeowner’s insurer (“Insolvent Insurer”), one day before the two-year statute of limitations lapsed, but approximately eleven months after their homeowner’s insurer was declared insolvent. Almost two months later, on November 21, 2023, Plaintiffs filed a First Amended Petition for Damages adding the Louisiana Insurance Guaranty Association (“LIGA”) as an additional defendant. LIGA was first named as a defendant nearly two months after the lapse of prescription.
LIGA filed an exception of prescription, which was denied by the trial court. Thereafter, LIGA filed an Application for Supervisory Writs to the Fifth Circuit Court of Appeals and raised again the same arguments brought before the trial court, namely, that the claims against LIGA were prescribed on their face; that there was no interruption of prescription or acknowledgment; there was no legislative exception with regard to the prescriptive period against insolvent insurers and that no solidary obligation existed between the insolvent insurer and LIGA so as to interrupt prescription and the filing of suit against the insolvent insurer interrupted prescription of the claim against LIGA.
The Appellate Court agreed. There could be no solidary obligation between a non-existent entity and LIGA. Because no solidary obligation exists, there was no interruption of prescription at the time the suit was initially filed. When plaintiffs filed their amended complaint naming LIGA, plaintiffs’ claims against LIGA were prescribed on their face. The Court of Appeals reversed the trial court and dismissed Plaintiffs’ case in full. Martha Green, et al. v. Maison Insurance Company et al., --- So.3d ----, 2024 WL 4033561, 24-297 (La.App. 5 Cir. 9/4/24).
First Baptist Church Of Iowa, Louisiana v. Church Mutual
In First Baptist Church of Iowa, Louisiana v. Church Mutual Insurance Company, S.I., 105 F.4th 775 (5th Cir. 2024), the firm had a significant judgment vacated by the United States Fifth Circuit Court of Appeals, finding portions of the trial court’s judgment erroneous. There, an insured made a property loss claim arising out of Hurricane Laura, which made landfall in Louisiana in August 2020. After a three-day bench trial, the trial court accepted the Plaintiff’s estimate and rendered a verdict based upon the estimate presented by the Plaintiff, which used a January 2023 price list. The United States Fifth Circuit Court of Appeals reversed the Judgment because it was violative of the valuation provision of the insurance policy, which requires pricing as of the “time of the loss,” not valuation of damages three years after the event. The Court of Appeals wrote: “the policy is clear: the cost of repairing or replacing the damaged property is determined based upon prices ‘as of the time of loss or damage.’” Accordingly, the case was remanded for recalculation using prices from the time of loss. In addition, other parts of the judgment were fully vacated as being unsupported by the evidence, and the case was remanded with appropriate instructions to reduce and/or vacate other portions of the judgment.
First United Pentecostal Church v. Church Mutual
In First United Pentecostal Church v. Church Mutual Insurance Company, 119 F.4th 417 (5th Cir. 2024), an insured made a property loss claim arising out of Hurricane Laura. The Plaintiff argued, among other things, that the insurer’s failure to make payments to the Church until months after inspection was clear “bad faith,” because it was well beyond 30-days. After a bench trial, the district court awarded damages plus statutory penalties, attorney fees, and costs. The United States Fifth Circuit Court of Appeals reversed the Judgment for statutory penalties, finding that the “district court failed to grapple with the fact that there were ‘reasonable and legitimate question[s] as to the extent and causation of a claim” in “clear error.” Specifically, the Fifth Circuit acknowledged that an engineer was hired following the carrier’s inspection, because there were outstanding questions about the extent of the loss, particularly to the roof. In January 2021, the adjuster revised his estimate upon receipt of the engineer’s report, “which indicates that there were reasonable and legitimate questions about the extent of [the insurer’s] liability, particularly the extent of the loss as to the roof.” When there are reasonable and legitimate questions about the extent of the loss, an insurer should not be found in “bad faith” simply due to an allegedly untimely payment. Ultimately, this ruling confirms that insurers have a right to obtain professional evaluations to adjust complex claims without being subject to penalties in Louisiana simply because there was no adjustment and payment within 30 days.
Ladner v. Ochsner Clinic Foundation
Our client, The Gray Insurance Company, sought review of two adverse rulings issued by the trial judge, denying Gray’s Motion for Summary Judgment and granting “Ochsner Baptist Foundation’s” Motion for Summary Judgment against the Gray Insurance Company. Our appellate team successfully argued to the Louisiana Fourth Circuit Court of Appeals, which, in a 4-to-1 decision, granted our writ and reversed the trial court’s grant of OCF’s summary judgment.[3] Specifically, the court found that the contractual indemnity agreement in the roofing contract is “enforceable to the extent of Carriere-Stumm or its employee’s negligence only.” “[L]ike the requirement for Carriere-Stumm to indemnify OCF, the additional insured coverage … is only enforceable to the extent of Carriere-Stumm or its employees’ negligence.” Id. at 30. The court found that, at this stage of the litigation, there is a genuine issue of material fact as to the applicability of LAIA because there has not been a determination that either Carriere or OCF were at fault. Id.
The appellate court further found that, because there had not been a determination that either Carriere or its employee, Mr. Ladner, were even partially at fault, OCF’s motion for summary judgment, like Gray and Carriere’s, should have been denied. Because there has not been a determination that Carriere or its employee were at fault, The Gray is not required to provide coverage to OCF as an additional insured “unless and until there is a determination that Carriere-Stumm was negligent.”
The appellate panel found that the trial court erred in finding that The Gray breached its insurance contract with Carriere and ruling that The Gray must immediately defend OCF. Id. The appellate majority went on to find that The Gray had a reasonable basis for disputing coverage in this case and vacated the trial court’s finding that The Gray was in bad faith and its award of penalties and attorney fees. The matter was remanded to the trial court for further proceedings.
Ratcliff v. City Place
DBN was retained after a faulty default judgment was taken against certain insurers. The case arises out of damage that Hurricane Ida caused to 11 commercial properties owned by PRMC. PRMC had subscribed to primary and excess property insurance coverage for its 11 properties totaling $100,000,000. By November of 2021, PRMC’s primary insurers, the Velocity Insurers, had paid the $10,000,000 limit of the primary commercial liability insurance policy to the members of PRMC, including City Place Investors.
Meanwhile, City Place hired Ratcliff to repair the hurricane damage to City Place's property but City Place allegedly failed to pay the amount owed to Ratcliff as required by the contract. Ratcliff sued City Place for breach of contract. City Place asserted a third-party demand against PRMC’s primary insurers, the so-called "Velocity Insurers," alleging that the Velocity Insurers were liable for the claims in Ratcliff’s demand as City Place’s primary insurance carrier. The Velocity Insurers were not properly notified of the lawsuit or an upcoming default hearing.
However, the trial judge awarded City Place a default judgment against the Velocity Insurers for damages owed under the primary policy, as well as penalties and attorney fees pursuant to La. R.S. 22:1892, totaling more than $900,000.
Once notified of the judgment, Velocity Insurers immediately filed an exception of no cause of action and moved to annul the judgment and/or for a new trial, which were denied in part by the trial court.
On appeal, DBN argued, among other things, that the trial court erred by failing to grant Velocity Insurers’ exception of no cause of action because City Place failed to show that Velocity Insurers’ first-party property policy provided coverage for the allegations of the principal demand of a third party. The insurers also appealed the merits of the default judgment.
The Louisiana First Circuit Court of Appeals completely reversed the denial of the exception of no cause of action, and vacated the default judgment. It dismissed City Place’s third-party demand without prejudice.
On further appeal, the Louisiana Supreme Court reversed the Court of Appeals granting of the no cause of action exception, however, it remanded the case for a full consideration of the merits of the insurers’ objections to the default judgment in the trial court, thus giving the insurers the day in court they were deprived of in the first place.
OTHER RECENT APPELLATE DECISION OF INTEREST
Martinez v. ATC: Suspensive Appeal Bonds Where Bad Faith Is Not An Issue
Martinez’ vehicle slid off an icy stretch of I-49 in Shreveport. Shortly thereafter, an 18-wheeler driven by Dabir (owned by Starr Carriers) slid off the same stretch of road and struck Martinez’ vehicle.
Martinez and his passengers filed suits against Dahir, State Carriers, and their insurer, American Transport Group Risk Retention Group, Inc. (ATG), which issued a policy with $1,000,000.00 limit. The suits were consolidated for trial and the jury awarded nearly three times the ATG policy limit in damages.
Defendants moved for suspensive appeal and requested the court fix a bond in an amount less than the entire judgment under La. C.C.P. Art. 2142(c). The trial court granted the suspensive appeal but fixed the bond at the full amount of the judgment plus interest and costs, an amount that far exceeded policy limits. After the 2nd Circuit denied ATG’s writ application, it was granted by the Supreme Court.
Absent bad faith, an insurer cannot be liable for more than its policy limits. Bad faith was not an issue. To require the insurer to post a bond in excess of its policy limits would make those limits meaningless and would, in effect, increase the policy limits to the amount of the required bond.
The Louisiana Supreme Court held that nothing in LA C.C.P. Art. 2124(B) requires an insurer to post a bond in excess of its policy limits “to secure a suspensive appeal bond for its portion of the judgment.” The remainder of the amount of the judgment can be devolutively appealed. The case is Martinez v. ATC et al c/w Lincona et al v. ATC, ---So.3d--- (La. 2024), 2024 WL 4579047.
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[1] See D. Gruning (2004), “Mapping Society through Law: Louisiana, Civil Law Recodified,” 19 Tul. Eur. & Civ. L. Forum 1; Ilijana Todorovic, The Uniqueness of Louisiana's Legal Heritage: A Historical Perspective, 65 La. B.J. 378, 378–80 (2018).
[2] There are, of course other specialty courts, including city courts, criminal courts, family courts, juvenile courts, and other courts of special jurisdiction, but generally, speaking, a civil case in Louisiana proceeds through this three-level “civil” court system.
[3] This must have been a hotly debated writ application as it went to a five-judge panel, which occurs when two judges want to vacate a civil ruling and one judge does not. The procedure is controlled by La. Const. Art. V, §8(B).
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Sidney W. Degan, III
Managing Partner
E-Mail: sdegan@degan.com
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LAFAYETTE
600 JEFFERSON STREET, SUITE 800
LAFAYETTTE, LA 70501
TELEPHONE: (337) 345-8628
FACSIMILE: (337) 345-5732
DEGAN, BLANCHARD & NASH APPELLATE PRACTICE GROUP
Degan, Blanchard & Nash’s appellate practice group is uniquely qualified to provide skilled representation in the state and federal courts of appeal, as well as to associate with counsel from other states for appeals in other jurisdictions. The skills developed by an appellate practitioner are unique, as the practitioner must be able to utilize the case developed in the district court, analyze the trial court decision, and find new angles and arguments to support their clients’ position. Their skills include the ability to succinctly, logically, and persuasively argue a position or particular interpretation of the law before a panel of appellate judges in both written form and briefs, as well as orally.
The skills utilized by our appellate practice differ from those of a trial-level litigator. In addition to knowing and following the complex and unforgiving rules of appellate procedure, which involve critical deadlines and hyper-technical rules regarding written submissions and strictly timed oral arguments, our appeal counsel succinctly, logically, and persuasively argue a position or particular interpretation of the law before a panel of appellate judges in both written form and orally.
Appellate counsel often bring a fresh perspective to a case that was handled by separate trial counsel. That different perspective leads to a more advantageous result for our clients after a difficult trial. At the trial level, our appellate counsel can assist in developing new arguments or theories of the case, identifying and preserving errors of the lower court, and drafting and arguing dispositive pre-trial and post-trial motions.
We regularly file and litigate interlocutory appeals during the trial phases of litigation, which often change the course of the case or result in a dismissal of claims against our clients. We also assist with formulating and preserving objections to jury charges, proper inclusion of evidence for review, and drafting and arguing post-trial motions.
Our attorneys have appeared and presented oral arguments in every state and federal court of appeal in Louisiana. We have also been admitted pro hac vice in other states in appellate cases. Our attorneys have held federal and state judicial clerkships, and appear regularly before the appellate courts.
CONTRIBUTING COUNSEL
The attorneys of Degan Blanchard & Nash’s Appellate Practice Group who contributed to this update include: Sidney W. Degan, III, Travis L. Bourgeois, Candace C. Chauvin, Emma C. Dedman, Genevieve K. Jacques, Simone M. Almon, Alina Pagani.
