FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-01632 C\W
2012-04520, DIVISION "M" Honorable Paulette R.
J. Fontana, Skye S. Fantaci, ROEDEL PARSONS KOCH BLACHE
BALHOFF & MCCOLLISTER, COUNSEL FOR CROSS-CLAIM
PLAINTIFF/APPELLANT, LOUISIANA CITIZENS PROPERTY INSURANCE
David Kurtz, Brian M. Ballay, Laura E. Carlisle, BAKER
DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, COUNSEL FOR
DEFENDANT/APPELLEE, CB&I GOVERNMENTAL, SOLUTIONS, INC.
Nicholas Dietzen, IV Kevin R. Tully CHRISTOVICH &
KEARNEY, LLP New Orleans, LA 70130--6078 COUNSEL FOR
DEFENDANT/APPELLEE, STATE OF LOUISIANA, THROUGH THE DIVISION
OF ADMINISTRATION, OFFICE OF COMMUNITY DEVELOPMENT, DISASTER
composed of Judge Terri F. Love, Judge Madeleine M. Landrieu,
Judge Joy Cossich Lobrano
F. Love Judge.
appeal arises from damages sustained during the elevation of
plaintiffs' home following Hurricane Katrina. Plaintiffs
filed suit contending that the elevation contractor was
negligent, as well as the State of Louisiana, who
administered the elevation program. Plaintiffs' insurer,
that paid proceeds under their homeowners' insurance
policy, filed a cross-claim against the defendants sued by
the plaintiffs. The State of Louisiana filed an exception of
no right of action, which maintained that the State was not
liable for the contractor's alleged negligence. The trial
court granted the exception of no right of action, dismissing
the claims against the State with prejudice.
insurer appealed, asserting that it was partially subrogated
to plaintiffs' rights, which permitted the appeal. The
State filed a motion to dismiss contending that
plaintiffs' insurer did not have a right to appeal
without plaintiffs. Plaintiffs' insurer also avers that
the State's administration of the elevation program was
sufficient to negate the exception of no right of action.
that plaintiffs' insurer was partially subrogated to
plaintiffs' claims, which allowed it to exercise
appellate rights, and deny the motion to dismiss appeal.
Further, we find that plaintiffs' insurer failed to show
that a stipulation pour autrui existed, as any
benefit derived by the plaintiffs from the contract between
the State and the elevation contractor was incidental.
Lastly, we find that the State did not assume a duty to the
plaintiffs. Therefore, the trial court did not err by
granting the State's exception of no right of action. The
judgment of the trial court is affirmed.
BACKGROUND AND PROCEDURAL HISTORY
and Antoinette Johnston own a home damaged by Hurricane
Katrina. As a part of the recovery process, the Johnstons
decided to elevate their home. The State of Louisiana,
Division of Administration, Office of Community Development,
Disaster Recovery Unit (hereinafter referred to as
"State") administered the Hazard Mitigation Grant
Program ("HMGP"), which provided home elevation
grants to homeowners who met certain criteria. The Johnstons
received an HMGP grant and selected Luis Acosta with LAA
Shoring, LLC ("LAA") to complete their elevation.
LAA was paid $80, 000 by the Johnstons from monies received
from the HMGP.
Johnstons then alleged that LAA damaged their home such that
the home was uninhabitable. Subsequently, the Johnstons filed
a claim with their homeowners' insurance provider,
Louisiana Citizens Property Insurance Corporation
("LCPIC"), for the damage. LCPIC paid the Johnstons
$65, 230.20under the policy.
then filed suit against LAA, Mr. Acosta, and their insurer,
Hermitage Insurance Company, seeking the monies it extended.
A few months later, the Johnstons filed a suit for damages
against the State; CB&I Solutions, Inc. f/k/a Shaw
Environmental & Infrastructure, Inc.
("CB&I"); LAA; Mr. Acosta; LAA's insurer;
ACI Construction; Michael Brown; ACI's insurer; Don
Garland; Garland's insurer; Greg Pierson; David Knight;
Francis King; Minola Butler; and LCPIC. Once the
Johnstons' petition was filed, LCPIC filed an Unopposed
Motion to Transfer and Consolidate its case with the
Johnstons. The trial court granted the consolidation.
the same time as the consolidation, LCPIC filed a cross-claim
against the defendants sued by the Johnstons alleging that
they were liable via subrogation to LCPIC for the $65, 230.20
paid to the Johnstons. The State filed an Exception of No
Right of Action contending that the Johnstons' claims and
LCPIC's cross-claims against the State should be
dismissed. The State alleged that the Johnstons did not have
a contract or third-party beneficiary relationship with the
State. The trial court sustained the State's Exception of
No Right of Action, and dismissed all claims against it with
prejudice. LCPIC's devolutive appeal
contends that the trial court erred by sustaining the
State's Exception of No Right of Action because the
petition asserted a valid cause of action and because the
State may have ...