FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09926,
DIVISION "N-8" HONORABLE ETHEL SIMMS JULIEN, JUDGE
S. BANKSTON JENNA H. LINN BANKSTON & ASSOCIATES, LLC
Counsel for Plaintiff/Appellant
FELDMAN, JR. VICKIE A. ELMER MARK J. CHANEY III McGLINCHEY
STAFFORD, PLLC Counsel for Defendant/Appellee, American
Service Insurance, Inc.
WILLIAM D. SHEA ADAMS AND REESE, LLP Counsel for
Defendants/Appellees, Regions Insurance, Inc., Charlotte
Louise Leblanc and Michael Joseph Harrington
composed of Chief Judge James F. McKay III, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins
F. MCKAY III CHIEF JUDGE
Taxicab Insurance Store, LLC ("TIS"), seeks
appellate review of the trial court's September 20, 2016
judgment, granting the exceptions of no cause of action and
no right of action filed by American Service Insurance
Company, Inc. ("ASIC"), Michael J. Harrington
("Harrington"), Charlotte Louise LeBlanc
("LeBlanc"), and Regions Insurance Inc.
("Regions") (collectively referred to as "the
defendants"), dismissing TIS's action in its
entirety, with prejudice. For the reasons set forth below, we
OF FACTS AND PROCEDURAL HISTORY
2011, TIS began operating as a producer for Imperial Fire and
Casualty Insurance Company ("Imperial"), providing
commercial automobile insurance policies to taxicab drivers
in Louisiana. Thereafter, ASIC also began issuing insurance
policies to taxicab drivers in the greater New Orleans area.
Regions, Harrington, and LeBlanc acted as producers for ASIC.
filed a petition for damages and a supplemental/amending
petition against the defendants.  Therein, TIS claims
that the defendants were working together to solicit business
from TIS's customers by offering illegal insurance
policies at unapproved premium rates. The petition maintains
that the defendants specifically marketed the illegal
policies to TIS's customers, representing that ASIC could
offer lower rates and better coverage. TIS asserts that the
defendants were aware that the rates were not approved by the
Insurance Commissioner, and that certain unapproved discounts
and products were being offered to the taxicab insureds in
violation of the law.  TIS further alleges a significant loss of
business as a result of the defendants' actions.
petition for damages, as amended, asserts the following eight
counts, or causes of action, against the defendants: 1) tort;
2) fraud; 3) tortious interference with a contract; 4)
tortious interference with a business relationship; 5)
violations of the Louisiana Unfair Trade Practices Act
("LUTPA"), La. R.S. 51:1401, et seq.; 6)
violations of the Louisiana Anti-Trust Act, La. R.S. 51:122
and 123; 7) unjust enrichment; and alternatively, 8)
declaratory relief, asserting that La. R.S. 51:1406(1) is
response to TIS's supplemental and amending petition, the
defendants filed exceptions of no cause of action and no
right of action, arguing, generally, that the alleged
violations of the Insurance Code cannot support a private
cause of action for damages because the Insurance
Commissioner has exclusive jurisdiction to enforce the
Insurance Code. More specifically, the defendants argued in
support of the exceptions that: 1) TIS does not have a claim
for tort, fraud, or unjust enrichment because it does not
allege that the defendants made any representations or had
any duty to TIS; 2) TIS does not have a tortious interference
with a contract claim because there was no contract between
TIS and the defendants; 3) TIS does not have a tortious
interference with a business relationship claim because the
petition fails to allege facts to show malice or ill-will or
that the defendants prevented any party from dealing with
TIS; 4) TIS does not have a LUTPA claim because such claims
are subject to the exclusive jurisdiction of the Louisiana
Insurance Commissioner; and 5) TIS does not have an
anti-trust claim because it does not allege the existence of
a horizontal or vertical agreement and does not allege facts
that would support a monopoly claim.
matter was heard on September 9, 2016. In a judgment dated
September 20, 2016, the trial court granted the
defendants' exceptions of no cause of action and no right
of action and dismissed the action in its entirety, with
prejudice. TIS timely appealed.
appeal, TIS sets forth eight assignments of error, asserting
that the trial court erred in granting the exceptions, and in
finding that TIS failed to set forth a cause and/or right of
action against the defendants for: 1) tort, 2) fraud; 3)
tortious interference with a contract; 4) tortious
interference with a business relationship; 5) unfair trade
practices; 6) anti-trust violations; 7) unjust enrichment;
and 8) declaratory relief concerning the constitutionality of
La. R.S. 51:1406(1). For the reasons set forth below, we find
no merit in these assignments of error.
Zeigler v. Housing Authority of New Orleans,
2015-0626, pp. 4-5 (La.App. 4 Cir. 3/23/16), 192 So.3d 175,
178, this Court reiterated the standard of review regarding
exceptions of no cause of action and no right of action, as
"Exceptions of no cause of action present legal
questions, and are reviewed under the de novo
standard of review." Phillips v. Gibbs,
2010-0175, p. 3 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 797.
This exception is designed to test the legal sufficiency of a
petition by determining whether a party is afforded a remedy
in law based on the facts alleged in the pleading.
Id., 2010-0175 at p. 3, 39 So.3d at 797-98.
"All well-pleaded allegations of fact are accepted as
true and correct, and all doubts are resolved in favor of
sufficiency of the petition so as to afford litigants their
day in court." Foti v. Holliday, 2009-0093, p.
5 (La. 10/30/09), 27 So.3d 813, 817. "The burden of
demonstrating that a petition fails to state a cause of
action is upon the mover." Id., citing
Ramey v. DeCaire, 2003-1299, p. 7 (La. 3/19/04), 869
So.2d 114, 119.
Likewise, "[p]eremptory exceptions raising the objection
of no right of action are reviewed de novo on appeal as they
involve questions of law." Fortier v. Hughes,
2009-0180, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185,
1186. "The exception of no right of action tests whether
the plaintiff has a real and actual interest in the
action." Weber v. Metro. Cmty. Hospice Found.,
Inc., 2013-0182, p. 4 (La.App. 4 Cir. 12/18/13), 131
So.3d 371, 374, citing La. C.C.P. art. 927(5). The function
of the exception is to determine whether the plaintiff
belongs to the class of persons to whom the law grants the
cause of action asserted in the lawsuit. Louisiana
Paddlewheels v. Louisiana Riverboat Gaming Com'n,
94-2015, p. 4 (La. 11/30/94), 646 So.2d 885, 888. "The
exception of no right of action assumes that the petition
states a valid cause of action for some person and questions
whether the plaintiff in the particular case is a member of
the class that has a legal interest in the subject matter of
the litigation." Indus. Companies, Inc. v.
Durbin, 2002-0665, p. 12 (La. 1/28/03), 837 So.2d 1207,
Cause of Action/Count 1 (Tort)
alleges that the defendants owed a duty to compete fairly and
honestly and to comply with the rules prescribed by the
Louisiana Insurance Code. La. R.S. 22:12 provides that
"[n]o person shall be authorized to transact or shall
transact a business of insurance in this state without
complying with the provisions of this Code." The
petition alleges that the defendants breached their duty to
comply with the state's insurance regulations, claiming
that the defendants, in issuing unlawful insurance contracts,
intentionally violated the Insurance Code in order to
commandeer business away from TIS.
Insurance Commissioner is charged with the enforcement of the
Insurance Code. See La. R.S. 22:11. La. R.S.
22:13(A) lists the remedies for violations of the provisions
of the Insurance Code, which includes penalties assessed by
the Commissioner. The Insurance Code, however, does not
provide for a private right of action for violations. See
Clausen v. Fidelity and Deposit Company of Maryland,
95-0504, p. 4 (La.App. 1 Cir. 8/4/95), 660 So.2d 83, 86.
Louisiana, legal responsibility in tort is determined by
application of a duty/risk analysis. This analysis requires
the plaintiff to prove four distinct elements: (1) existence
of a duty owed by the defendant to the plaintiff; (2) a
breach of that duty; (3) the breach is a cause in fact of
damage; and (4) actual damage was sustained by the plaintiff.
Private Connection Property, Inc. v. Fox Cars, LLC,
2008-1129, p. 9 (La.App. 4 Cir. 2/10/09), 6 So.3d 866, 872
(citing Becnel v. Grodner, 2007-1041, p. 3 (La.App.
4 Cir. 4/2/08), 982 So.2d 891, 894).
present case, the only duty alleged to have been breached by
the defendants is their violations of the Insurance Code. The
petition does not assert a legal relationship between TIS and
the defendants, and it fails to establish the existence of a
duty owed to TIS. Thus, TIS's tort claim fails as a
matter of law.
of Action/Count II (Fraud)
alleges that the defendants committed fraud by knowingly
issuing illegal policies to taxicab drivers, and by
intentionally misrepresenting and/or suppressing the truth to
the taxicab drivers regarding the policies. It is further
alleged that this misrepresentation was done with the
intention of obtaining an unjust advantage, while luring
business away from TIS.
state a cause of action for fraud, the following three
elements must be alleged: " '(1) a misrepresentation
of material fact, (2) made with the intent to deceive, (3)
causing justifiable reliance with resultant injury.'
" Chapital v. Harry Kelleher & Co., Inc.,
2013-1606, p. 13 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 86
(quoting Becnel, 2007-1041, p. 3, 982 So.2d at 894).
C.C. art. 1953 defines fraud as "a misrepresentation or
a suppression of the truth made with the intention either to
obtain an unjust advantage for one party or to cause a loss
or inconvenience to the other. Fraud may also result from
silence or inaction." However, in order to find fraud
from silence or suppression of the truth, there must exist a
duty to speak or disclose information. 1100 S. Jefferson
Davis Parkway, LLC v. Williams, 2014-1326, p. 7 (La.App.
4 Cir. 5/20/15), 165 So.3d 1211, 1218 (citing
Becnel, 2007-1041, p. 4, 982 So.2d. at 894).
it is evident that the fraud alleged in the petition is based
on the defendants' misrepresentations to the taxicab
drivers, not to TIS. The petition sets forth no
misrepresentations made directly toward TIS. Moreover, there
are no allegations that TIS relied upon any representations
made by the defendants or took any action in relation to the
alleged misrepresentations. Accordingly, we find that the
petition fails to state a cause of action in fraud.
of Action/Count III (Tortious Interference with a
argues that the defendants tortiously interfered with the
contracts between TIS and approximately six hundred taxicab
drivers. The petition alleges that the defendants solicited
TIS's insureds and offered them an illegally low premium
in order to damage TIS's business. The petition further
alleges that the defendants acted in a manner which they knew
would be detrimental to TIS's business interests.
1989, the Louisiana Supreme Court for the first time
recognized a very limited cause of action for tortious
interference with contract in 9 to 5 Fashions, Inc. v.
Spurney, 538 So.2d 228 (La. 1989). The Court in 9 to
5 Fashions held that a corporate officer has a duty to a
third person who has a contractual relationship to the
corporation not to intentionally cause the company to breach
the contract. The Court further held that "[i]t is not
our intention, however, to adopt whole and undigested the
fully expanded common law doctrine of interference with
contract ... [i]n the present case we recognize ... only a
corporate officer's duty to refrain from intentional and
unjustified interference with the contractual relation
between his employer and a third person." Id.
MD Care, Inc. v. Angelo, 95-2361, 95-2362, (La.App.
4 Cir. 3/20/96), 672 So.2d 969, this Court addressed the
cause of action for intentional interference with a contract,
The Supreme Court has not expanded the holding of 9 to 5
Fashions but has reiterated its "resolve in that
case to advance with care." Great Southwest Fire
Insurance Co. v. CNA Insurance Cos., 557 So.2d 966, 969
(La. 1990). Appellate courts generally have disallowed a
cause of action for tortious interference with a contract
outside the facts of 9 to 5 Fashions. See
Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La.App. 3
Cir. 8/9/95), 661 So.2d 1027, 1033.
However, this Court has expressed a willingness to expand the
cause of action when the facts warrant. In Tallo v. Stroh
Brewery Co., 544 So.2d 452 (La.App. 4th Cir.), writ den.
547 So.2d 355 (La.1989) this Court affirmed a dismissal for
failure to state a cause of action where plaintiff alleged
that the brewery company's rejection of an application
for change of control of a distributorship constituted
intentional interference with the contract between plaintiff
and the distributor. Noting that 9 to 5 Fashions
refused to wholly adopt the common law tort of interference
with contract rights which consists of a "rather broad
and undefined tort in which no specific conduct is prescribed
[sic], " this Court examined whether the defendants owed
a duty to the plaintiff. Tallo held ...