EVANGELA LONZO, ET AL.
DANIEL LONZO, ET AL.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-04322,
DIVISION "E" Honorable Clare Jupiter, Judge
Patrick G. Kehoe, Jr. 833 Baronne Street COUNSEL FOR
Alejandro "Alex" Cobar LAW OFFICE OF ROBERTO R.
AROSTEGUI COUNSEL FOR DEFENDANTS/APPELLEES.
composed of Judge Daniel L. Dysart, Judge Rosemary Ledet,
Judge Regina Bartholomew Woods
ROSEMARY LEDET, JUDGE
a personal injury suit. The trial court granted the
peremptory exceptions of no cause of action and no right of
action filed by two of the defendants, Daniel Lonzo and GEICO
General Insurance Company, in its capacity as Mr. Lonzo's
liability insurer ("GEICO") (collectively the
"Defendants"). From that judgment, Evangela Lonzo,
individually and on behalf of her four minor children (Kaylah
Boston, Ezekiel Maximillen, Amiyah Lonzo, and Daliyah Lonzo)
(the "Children") (collectively the
"Plaintiffs" or "Mrs. Lonzo"), appeals.
For the reasons that follow, we reverse and remand.
AND PROCEDURAL BACKGROUND
case arises out of a one-car accident that occurred on August
29, 2015, in Oxford, North Carolina. Mr. Lonzo was the
driver; the Plaintiffs were the passengers. As a result of
the accident, all the occupants of the car allegedly were
injured. In April 2016, the Plaintiffs commenced this suit
against, among others, the Defendants. In their petition, the
Plaintiffs averred that the underlying events giving rise to
this suit were as follows:
On August 29, 2015, the defendant, Daniel Paul Lonzo, leased
a U-Haul trailer . . . from the defendant, Pets Plus, Inc.
d/b/a [a] U-Haul Dealer ["Pets Plus"]. . . [in]
Stafford, VA, under a one-way rental contract . . . with Pets
Plus . . . being fully apprised and aware that its trailer
would be used to move the Lonzo family from Virginia to New
Orleans, Louisiana. While traveling on I-85 South in the city
of Oxford, North Carolina, the drawbar pin detached causing
the U-Haul trailer to separate from the car resulting in the
Lonzo vehicle swerving and then flipping. As a result,
Evangela Lonzo and her minor children sustained severe
Plaintiffs further averred that Mr. Lonzo's negligence
included failing to maintain the vehicle and failing to
properly inspect the trailer hitch, the drawbar pin, and the
chains attaching the trailer to the vehicle.
the petition, Mr. Lonzo generally denied liability; he
admitted, however, that, on the date of the accident, he
leased a U-Haul trailer from Pets Plus under a one-way
rental; that the drawbar pin malfunctioned and detached,
causing the U-Haul trailer he was towing to become unhitched
and separate from the vehicle he was driving; and that, as a
result of the accident, all the occupants in the vehicle were
injured. In his answer, Mr. Lonzo asserted a cross-claim
against GEICO, in its capacity as his uninsured motorist
insurer ("GEICO-UM"). In its answer to the
cross-claim, GEICO-UM averred that the "policy of
insurance at issue was issued and delivered in the state of
Virginia, and therefore, Virginia laws apply to the
interpretation of the UM coverage afforded by the GEICO
policy issued in Virginia."
the Defendants-Mr. Lonzo and GEICO-filed peremptory
exceptions of no right and no cause of action. They contended
that the Plaintiffs have no cause of action to sue Mr. Lonzo
given two Louisiana statutes providing for intra-family tort
immunity-La. R.S. 9:291, which provides for spousal immunity,
La. R.S. 9:571, which provides for parental
immunity. Defendants thus contended that Mrs. Lonzo
cannot sue Mr. Lonzo because of his status as her spouse and
that the Children cannot sue Mr. Lonzo because of his status
as their father or a person with parental authority over
basis for the Defendants' exception of no right of action
was two-fold. First, they contended that the Plaintiffs
"have essentially brought suit against GEICO without
suing its insured because, as per La. R.S. 9:291 and 9:571,
plaintiffs are barred from filing suit against Daniel
Lonzo." Second, they contended that the Louisiana Direct
Action Statute (the "DAS"), La. R.S. 22:1269,
would not apply because the accident did not occur in
Louisiana and the GEICO policy at issue was neither written
nor delivered in Louisiana. See Esteve v. Allstate Ins.
Co., 351 So.2d 117, 120 (La. 1977) (holding that
"[t]he right of direct action against a liability
insurer in a Louisiana court is expressly conferred by
statute, but only under certain conditions: (1) the accident
occurred in Louisiana, or (2) the policy was issued or
delivered in Louisiana.").
the exceptions, the Plaintiffs raised a constitutional
challenge to the spousal immunity statute, La. R.S.
9:291. Following a hearing, the trial court
rendered judgment in the Defendants' favor, granting
their exceptions and dismissing the Plaintiffs' claims
against them with prejudice. This appeal followed.
exceptions of no cause of action and no right of action
present legal questions; thus, this court reviews a trial
court's judgment granting such exceptions under a de
novo standard. Zeigler v. Housing Auth. of New
Orleans, 12-1168, p. 6 (La.App. 4 Cir. 4/24/13), 118
So.3d 442, 449 (citing St. Pierre v. Northrop Grumman
Shipbuilding, Inc., 12-545, p. 7 (La.App. 4 Cir.
10/24/12), 102 So.3d 1003, 1009).
cause of action and no right of action are two separate and
distinct exceptions; each of these exceptions serves a
different purpose and is governed by different procedural
rules. Badeaux v. Southwest Computer Bureau, Inc.,
05-0612, 05-719, p. 6 (La. 3/17/06), 929 So.2d 1211, 1216. As
the Louisiana Supreme Court has noted, "one of the
primary differences between the exception of no right of
action and no cause of action lies in the fact that the focus
in an exception of no right of action is on whether the
particular plaintiff has a right to bring the suit, while the
focus in an exception of no cause of action is on whether the
law provides a remedy against the particular defendant."
Badeaux, 05-0612, 05-719, at p. 6, 929 So.2d at
1216-17. As one commentator has noted, "[w]hen the facts
alleged in the petition provide a remedy under the law to
someone, but the plaintiff who seeks the relief for himself
or herself is not the person in whose favor the law extends
the remedy, the proper objection is no right of action, or
want of interest in the plaintiff to institute the
suit." 1 Frank L. Maraist, LA. CIV. L. TREATISE, CIVIL
PROCEDURE § 6:7 (2d ed. 2016).
with these principles, the jurisprudence has recognized that
a peremptory exception of no right of action is the proper
procedural device to raise the defense of intra-family tort
immunity. Walker v. State Farm Mut. Auto. Ins. Co.,
33, 781, p. 2 (La.App. 2 Cir. 8/25/00), 765 So.2d 1224, 1226
(noting that "[t]he Louisiana jurisprudence has
considered the application of immunity statutes through the
exception of no right of action."). The trial court
thus legally erred in granting the Defendants' exception
of no cause of action based on two intra-family immunity
statutes-spousal tort immunity pursuant to La. R.S. 9:291 and
parental immunity pursuant to La. R.S. 9:571.
the jurisprudence dictates that we construe every pleading so
as to do "substantial justice." Hightower v.
Schwartz, 14-0431, pp. 6-7 (La.App. 4 Cir. 10/15/14),
151 So.3d 903, 906 (citing La. C.C.P. arts. 865 and 1005 and
noting that "our current practice directs us
particularly to treat a mistakenly designated peremptory
exception or mistakenly designated affirmative defense as if
it were properly designated"). Stated otherwise,
"[h]arsh rules of pleading are not favored in this
state." State, Dep't of Children & Family
Servs. ex rel. A.L. v. Lowrie, 14-1025, p. 5 (La.
5/5/15), 167 So.3d 573, 578 (citing Succession of
Smith, 247 La. 921, 928, 175 So.2d 269, 271 (1965)).
Following these dictates, we treat the Defendants'
mistakenly designated peremptory exception of no cause of
action as a properly designated exception of no right of
action. See also La. C.C.P. art. 927 B (providing
that "the failure to disclose . . . a right or interest
in the plaintiff to institute the suit . . . may be noticed
by either the trial or appellate court on its own
appeal, the Plaintiffs re-urge their constitutional challenge
to La. R.S. 9:291, the spousal immunity statute. In the
alternative, the Plaintiffs contend that the trial court
erred in failing to conduct a choice-of-law analysis to
determine which state's law-Louisiana, Virginia, or North
Carolina-applies to the spousal immunity issue presented
here. Because we find the choice of law issue
dispositive, we pretermit discussion of the constitutional
issue raised by the Plaintiffs. Before turning to the
choice-of-law issue, however, we address a preliminary issue
raised by the Defendants.
Rules-Courts of Appeal, Rule 1-3
Defendants contend that the choice-of-law issue is not
properly before this court because it was not submitted to
the trial court. In support, they cite the general rule,
codified in Uniform Rules-Courts of Appeal, Rule 1-3
("Rule 1-3"), that "[t]he Courts of Appeal
will review only issues which were submitted to the trial
court." The Plaintiffs counter that Rule 1-3 is
not an absolute bar to this court considering their
choice-of-law assignment of error. In support, they emphasize
the "interest of justice" exception set forth in
court has recognized that "[t]here are, of course, times
when 'the interest of justice clearly requires
otherwise' that we are authorized to decide a civil case
based on an issue not raised or addressed by the
parties." Weatherly v. Sanchez, 15-0534, p. 3
(La.App. 4 Cir. 11/25/15), 181 So.3d 218, 221, n. 3 (citing
Rule 1.3; Merrill v. Greyhound Lines, Inc., 10-2827,
pp. 2-3 (La. 4/29/11), 60 So.3d 600, 602). The jurisprudence
addressing the scope of the "interest of justice"
exception in Rule 1-3 is scant.
parallel statutory provision is La. C.C.P. art. 2164, which
states that "[t]he appellate court shall render any
judgment which is just, legal, and proper upon the record on
appeal." See Georgia Gulf Corp. v. Bd. of Ethics for
Pub. Employees, 96-1907, p. 6 (La. 5/9/97), 694 So.2d
173, 176 (noting the similarity in purpose of Rule 1-3 and
La. C.C.P. art. 2164). As noted in the Official Revision
Comments to La. C.C.P. art. 2164, "[t]he purpose of this
article is to give the appellate court complete freedom to do
justice on the record irrespective of whether a particular
legal point or theory was made, argued, or passed on by the
court below." La. C.C.P. art. 2164, cmt. (a); see
also Roger A. Stetter, LA. PRAC. CIV. APP. § 10:34
(2017) (noting that "[g]enerally, the appellate court
may consider an issue that is raised for the first time on
appeal if its resolution is necessary to render a just, legal
and proper judgment."). In sum, an appellate court, as
the Defendants acknowledge, has the constitutional and
statutory authority to raise an issue sua sponte on
appeal when justice requires it to do so. Such is the case
here for the following two reasons.
choice of law, which is a legal issue,  is implicitly
raised by the exception of no right of action that this
court, sua sponte, recognizes on appeal. Stated
differently, it is only in the context of the applicable
substantive law-Louisiana's spousal immunity statute or
the contrary law of Virginia or North Carolina (which would
allow spouses to sue each other in this
context)-that this court can ascertain whether
there is a right of action on the part of Mrs. Lonzo to sue
Berard v. L-3 Commc'ns Vertex Aerospace, LLC,
09-1202 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 340, a
similar issue was addressed, albeit in the summary judgment
context. In that case, the appellate court reasoned that a
choice of law issue was properly before it "by virtue of
the threshold inquiry that summary judgment be appropriate
'as a matter of law.'" Id., 09-1202 at
p. 6, n. 1, 35 So.3d at 340. Continuing, the appellate court
noted that "[a] judgment granting or denying summary
judgment is necessarily based upon the initial determination
of the substantive law applicable to the issues, as it is
only in the context of that applicable substantive law that
any issues of material fact can be ascertained."
Id.The same reasoning applies here to the
exception of no right of action.
the interplay between the spousal immunity statute and the
DAS dictates addressing the choice-of-law issue in this case
involving multiple out-of-state contacts-an insurance policy
that was issued in Virginia, an accident that occurred in
North Carolina, and a suit that was filed in Louisiana. As
commentators have explained, in the state of Louisiana,
"[spousal] immunity is mainly illusory, because . . .
the immunity is personal, so that during the marriage, the
victim spouse may bring a direct action against the injuring
spouse's liability insurer." Frank L. Maraist &
Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 11.02, n.
4 (2d ed. 2016) ("MARAIST & GALLIGAN").
Explaining the typical interplay between the spousal immunity
statute and the DAS, commentators also have noted the
Justifiably, one may conclude that the direct action statute,
[formerly] La. R.S. 22:655 [presently La. R.S. 22:1269], has
allowed Louisiana to partially preserve the immunity, which
has been abrogated in most other states. In states that do
not permit the direct action, the injuring spouse's
insurer also is immune because a judgment against the
injuring spouse is a predicate to a suit against the insurer.
In Louisiana, the direct action statute permits suit against
the insurer without prior judgment against the insured
spouse. Thus it permits Louisiana to pay lip service to the
preservation of domestic tranquility while at the same time
assuring recovery of damages by victim spouses.
Interestingly, when the Legislature amended the direct action
statute to require that ...