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Fortenberry v. Scottsdale Insurance Co.

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

DOTTY FORTENBERRY WIFE OF/AND ALVIN L. FORTENBERRY
v.
SCOTTSDALE INSURANCE COMPANY, LIBERTY MUTUAL INSURANCE COMPANY, JYD TRUCKING, L.L.C., DAVID LYLE SCOTT, SR., AND UNITED SERVICES AUTOMOBILE ASSOCIATION

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 738-827, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, DOTTY FORTENBERRY WIFE OF/AND ALVIN L. FORTENBERRY Stephen M. Chouest, Sr. J. Rand Smith, Jr.

          COUNSEL FOR DEFENDANT/APPELLANT, UNITED SERVICES AUTOMOBILE ASSOCIATION James R. Nieset, Jr. Kristopher Michael Gould Jade E. Ennis.

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE.

         Appellant, United Services Automobile Association (USAA), in its capacity as Liberty Mutual Fire Insurance Company's insured (LM's insured), seeks review of the trial court's August 1, 2016 judgment denying its motion to quash the 1442 deposition of USAA. Appellees/plaintiffs, Dotty and Alvin Fortenberry, filed a motion to dismiss appellant's appeal of the trial court's August 1, 2016 interlocutory discovery order. For the reasons that follow, we find appellant is a party to this litigation and therefore, appellant does not have a right to appeal the trial court's interlocutory discovery order. Accordingly, appellees' motion to dismiss appeal is granted and the matter is remanded to the trial court to comply with this Court's instructions.

         Facts and Procedural History

         Appellee, Alvin Fortenberry, was employed by USAA as an automobile re-appraiser. As a long time employee of USAA, Alvin Fortenberry received various employment and fringe benefits, including a company vehicle that was provided for his use. The vehicle was rendered a total loss as a result of a rear-end collision in which Dotty and Alvin Fortenberry were seriously injured.

         On May 23, 2014, appellees filed suit against USAA and other defendants as a result of the rear-end collision that occurred on November 15, 2013. A first supplemental, amending and restated petition for damages was filed on September 18, 2014. The petitions named USAA as a defendant that "had in full force and effect a policy of liability insurance which insured the plaintiffs for losses of the nature and kind made basis of this suit." The petitions alleged Alvin Fortenberry's long time employment with USAA prior to and at the time of the accident, and stated that USAA provided automobile insurance for his company vehicle as a benefit of his employment. The petitions further provided that at the time of the accident, appellees were also insured for accidents caused by underinsured motorists by USAA (UM insurer). USAA answered appellees' petitions without making any distinction as to USAA's alleged capacity or capacities as a named defendant and without filing any exceptions to the petitions.

         Appellees filed a notice of deposition and notice of "C.C.P. 1442" deposition with request for production of documents requesting "non-party" USAA in its capacity as Alvin Fortenberry's former employer, benefits plan administrator, and LM's insured to appear for the deposition.

         USAA (LM's insured) filed a motion to quash the 1442 deposition of USAA, arguing that it was an independent third party and not a party in this lawsuit. USAA (LM's insured) argued that this lawsuit was only against USAA in its capacity as the appellees UM insurer and not against USSA in its capacities as Alvin Fortenberry's former employer, benefits plan administrator, and LM's insured. Appellees opposed the motion to quash arguing that USAA was named as an original party defendant in this litigation. The trial court denied USAA's (LM's insured) motion to quash. Appellant filed this appeal and appellees filed a motion to dismiss the appeal. On February 1, 2017, after careful consideration of the motion to dismiss and opposition thereto, this Court entered an order referring appellees' motion to dismiss to the merits of this appeal. Fortenberry v. Scottsdale Insurance Company, 16-610 (La.App. 5 Cir. 02/01/17).

         Discussion

         Initially, this Court must determine whether this is an appealable judgment. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083 C. Generally, a judgment involving preliminary discovery matters is interlocutory and non-appealable. Gariepy v. Evans Indus., 06-106 (La.App. 5 Cir. 09/25/07), 968 So.2d 753, 754; Larriviere v. Howard, 00-186 (La.App. 3 Cir. 10/11/00), 771 So.2d 747. However, a judgment resolving a discovery issue against a non-party is appealable as it resolves all of the issues between the non-party and the party seeking discovery. Gariepy, 968 So.2d at 755. Thus, this Court must decide if USAA (LM's insured) is a party or non-party.

         Pleadings must be construed reasonably as to afford litigants their day in court, to arrive at the truth, and to do substantial justice. La. C.C.P. art. 865; Dep't of Children & Family Servs. Ex rel. A.L. v. Lowrie, 14-1025 (La. 05/05/15), 167 So.3d 573, 578. Fact pleading advances several goals of the petition, such as satisfying the defendant's constitutional guarantee of due process by providing the defendant with fair notice, limiting the issues before the court, and notifying the defendant of the facts upon which the plaintiff bases his claims. Fitzgerald v. Tucker, 98-2313 (La. 06/29/99), 737 So.2d 706, 713; Schnell v. Mendoza, 12-272 (La.App. 5 Cir. 11/13/12), 105 So.3d 874, 877-878. Plaintiff need not plead a theory of the case, but ...


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