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Lonzo v. Lonzo

Court of Appeals of Louisiana, Fourth Circuit

November 15, 2017

EVANGELA LONZO, ET AL.
v.
DANIEL LONZO, ET AL.

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-04322, DIVISION "E" Honorable Clare Jupiter, Judge

          Patrick G. Kehoe, Jr. 833 Baronne Street COUNSEL FOR PLAINTIFFS/APPELLANTS.

          Alejandro "Alex" Cobar LAW OFFICE OF ROBERTO R. AROSTEGUI COUNSEL FOR DEFENDANTS/APPELLEES.

          Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Regina Bartholomew Woods

          ROSEMARY LEDET, JUDGE

         This is 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         This 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 injuries.

         The 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.

         Answering 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."

         Thereafter, 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, [1] and La. R.S. 9:571, which provides for parental immunity.[2] 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 them.

         The 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, [3] 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.").

         Opposing the exceptions, the Plaintiffs raised a constitutional challenge to the spousal immunity statute, La. R.S. 9:291.[4] 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.

         DISCUSSION

         Peremptory 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).

         No 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).

         Consistent 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.").[5] 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.

         Nonetheless, 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 motion").

         On 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.[6] 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.

         Uniform Rules-Courts of Appeal, Rule 1-3

         The 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."[7] 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 Rule 1-3.

         This 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.[8]

         A 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.

         First, choice of law, which is a legal issue, [9] 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)[10]-that this court can ascertain whether there is a right of action on the part of Mrs. Lonzo to sue Mr. Lonzo.

         In 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.[11]The same reasoning applies here to the exception of no right of action.

         Second, 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 following:

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 ...

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