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Hershberger v. LKM Chinese, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

May 20, 2015

DEBRA HERSHBERGER
v.
LKM CHINESE, L.L.C. D/B/A CHINA PALACE

Page 141

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2011-06714, DIVISION " H-12" . HONORABLE VAL P. EXNICIOS, JUDGE PRO TEMPORE.

TROY A. BROUSSARD, ALLEN & GOUCH, Lafayette, Louisiana, for Defendant/Appellee, Montpelier U.S. Insurance Company.

CHARLES P. CIACCIO, ATTORNEY AT LAW, New Orleans, Louisiana, for Defendants/Appellants, LKM Chinese, LLC d/b/a China Palace and LKM Convenience, LLC.

Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Roland L. Belsome.

OPINION

Page 142

James F. McKay III, Judge

[2014-1079 La.App. 4 Cir. 1] In this insurance coverage case, which arises out of a slip-and-fall accident at a restaurant, the defendant, LKM Chinese, LLC d/b/a China Palace, and the intervenor, LKM Convenience, LLC, appeal the trial court's maintaining the peremptory exceptions of no right of action and no cause of action in favor of the third-party defendant, Montpelier U.S. Insurance Company. We affirm.

FACTS AND PROCEDURAL HISTORY

Debra Hershberger alleges that she was injured in a slip-and-fall accident at the China Palace restaurant located on South Carrollton Avenue in New Orleans. The China Palace restaurant was operated by LKM Chinese, L.L.C. d/b/a China Palace (China Palace) in premises that it leased from LKM Convenience, L.L.C (LKM Convenience). As a result of the accident, Ms. Hershberger filed suit against China Palace on July 24, 2011.

On July 24, 2013, China Palace filed a third-party demand against Montpelier U.S. Insurance Company (Montpelier), LKM Convenience's insurer, demanding defense and indemnification for LKM Convenience. Simultaneously, [2014-1079 La.App. 4 Cir. 2] LKM Convenience intervened in the lawsuit, naming Montpelier as a defendant, and demanding that Montpelier provide a defense and indemnification for its tenant, China Palace.[1]

Montpelier filed exceptions of no cause of action and no right of action in response to China Palace's third-party demand and LKM Convenience's suit in intervention. The trial court maintained Montpelier's exceptions of no cause of action and no right of action, dismissing China Palace's and LKM Convenience's actions with prejudice on May 12, 2014. It is from this judgment that they now appeal.

DISCUSSION

China Palace and LKM Convenience raise the following assignments of error on appeal: 1) the ...


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