DOTTY FORTENBERRY WIFE OF/AND ALVIN L. FORTENBERRY
SCOTTSDALE INSURANCE COMPANY, LIBERTY MUTUAL INSURANCE COMPANY, JYD TRUCKING, L.L.C., DAVID LYLE SCOTT, SR., AND UNITED SERVICES AUTOMOBILE ASSOCIATION
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,
COUNSEL FOR DEFENDANT/APPELLANT, UNITED SERVICES AUTOMOBILE
ASSOCIATION James R. Nieset, Jr. Kristopher Michael Gould
Jade E. Ennis.
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Stephen J. Windhorst
STEPHEN J. WINDHORST JUDGE.
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
and Procedural History
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
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.
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
(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).
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.
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 ...