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Billeaudeau v. Opelousas General Hospital Authority

Court of Appeals of Louisiana, Third Circuit

April 18, 2018

BRANDI BILLEAUDEAU ET AL.
v.
OPELOUSAS GENERAL HOSPITAL AUTHORITY, ET AL.

          APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 1 l-C-5112-D C/W 13-C-0097 HONORABLE D. JASON MECHE, DISTRICT JUDGE.

          Kara Hadican Samuels Tiffany A. Morales Kara Hardican Samuels & Associates, LLC, COUNSEL FOR PLAINTIFFS/APPELLANTS: Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau Joseph Billeaudeau.

          Jennifer L. Thornton Christian S. Chaney Stanley, Reuter, Ross, Thornton & Alford, LLC 909 Poydras Street, Suite 2500 New Orleans, LA 70112 (504) 523-1580 COUNSEL FOR PLAINTIFFS/APPELLANTS: Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau, Joseph Billeaudeau

          Joseph L. McReynolds J. Jerry Glas Karen P. Holland Deutsch Kerrigan, L.L.P., COUNSEL FOR DEFENDANT/APPELLANT: Opelousas General Hospital Authority.

          George P. Hebbler, Jr. Frances Irene McGinnis Hebbler & Giordano, LLC, COUNSEL FOR DEFENDANT/APPELLANT: Nautilus Insurance Company.

          Nicholas Gachassin, III Gary J. Delahoussaye Brandon M. Rhodes Gachassin Law Firm P.O., COUNSEL FOR DEFENDANT/APPELLANT: Opelousas General Hospital Authority.

          George D. Fagan Anton L. Hasenkampf Leake & Andersson, LLP., COUNSEL FOR DEFENDANT/APPELLEE: National Union Fire Insurance Company of Pittsburgh, PA.

          William H. Parker, III Jacob E. Favaron Allen & Gooch COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Patients' Compensaton Fund (Opelousas General Hospital) Louisiana Patients' Compensation Fund (Dr. K. Skirlis-Zavala)

          J. Gregory Vidrine Mahtook & LaFleur P. O., COUNSEL FOR DEFENDANT/APPELLEE: Opelousas General Hospital.

          Alexander T. Reinboth Louisiana Department of Justice, Civil P.O., COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana.

          Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE.

         The plaintiffs, Veronica Billeaudeau, individually and as curatrix of Brandi Billeaudeau, and Joseph Billeaudeau, and the defendants, Opelousas General Hospital Authority, d/b/a Opelousas General Hospital, and Nautilus Insurance Company, appeal the granting of a partial motion for summary judgment, which dismissed National Union Fire Insurance Company of Pittsburg, PA as a party to the Billeaudeaus' negligent credentialing claim against OGH. For the reasons assigned, we reverse, render, and remand for further proceedings.

         DISCUSSION OF THE RECORD

         This is the second of three appeals before us involving the same parties. The facts of the case were set forth in detail by this court in Billeaudeau v. Opelousas General Hospital Authority, 15-1034 (La.App. 3 Cir. 4/6/16), 189 So.3d 561, writ granted, 16-846 (La. 6/28/16), 192 So.3d 781, wherein we held that the Billeaudeaus' negligent credentialing claim sounded in general negligence as opposed to a claim for medical malpractice, which was required to be pursued under the Louisiana Medical Malpractice Act (MMA), La.R.S. 40:1231.1, et seq. The supreme court reviewed the case and affirmed. Billeaudeau v. Opelousas Gen. Hosp. Auth., 16-846 (La. 10/19/16), 218 So.3d 513.

         As we stated in the first appeal before us, Billeaudeau v. Opelousas General Hospital Authority, 17-893 (La.App. 3 Cir. _/_/_), __So.3d __, the Billeaudeaus initially filed a claim against Opelousas General Hospital Authority, d/b/a Opelousas General Hospital (OGH) and its emergency department physician, Dr. Kondilo Skirlis-Zavala (Dr. Zavala), under the MMA for serious injuries allegedly sustained by the Billeaudeaus' daughter, Brandi, while being treated at OGH on June 20, 2010. In their original petition, filed on January 14, 2013, the Billeaudeaus alleged:

Defendant, Opelousas General Hospital, is liable unto Petitioners because Ms. Billeaudeau's injuries and damages, which will be specified hereinafter, were proximately and legally caused by the fault, including negligence, of Opelousas General Hospital . . . including the following negligent acts of omission and commission, among others, which may be shown during the trial:
e. Negligent credentialing of Dr. Zavala.

         On March 27, 2015, the Billeaudeaus filed a motion for partial summary judgment, seeking a ruling by the trial court that their negligent credentialing claim was not subject to the MMA. Following a hearing, the trial court granted judgment in favor of the Billeaudeaus, declaring that the negligent credentialing claim sounded in negligence and was outside the scope of the MMA. Judgment was granted in this matter on July 2, 2015. Thereafter, the Billeaudeaus amended their petition to add a claim in tort for negligent credentialing against OGH and its general liability insurers, National Union Fire Insurance Company of Pittsburg, PA (National Union) and Nautilus Insurance Company (Nautilus) under the Louisiana Direct Action Statute.[1] On July 8, 2015, OGH provided notice to National Union of the lawsuit for the first time.

         National Union issued a policy of insurance to OGH, No. 01-701-24-67, with effective dates of October 19, 2014 through October 19, 2015. The policy included four coverage sections: Directors and Officers (D&O), Employment Practices Liability (EPL), Fiduciary Liability (FLI), and Crime. The National Union policy is a claims-made and reported policy, and the notice provided on the declarations page of the policy states: "COVERAGE WITHIN THIS POLICY IS GENERALLY LIMITED TO LOSS FROM CLAIMS FIRST MADE AGAINST INSUREDS DURING THE POLICY PERIOD AND REPORTED TO THE INSURER AS THE POLICY REQUIRES." Further, the D&O Coverage Section of the policy provides: "This policy shall pay on behalf of the Organization Loss arising from a Claim first made against the Organization during the Policy Period or the Discovery Period (if applicable) and reported to the Insurer pursuant to the terms of this policy for any actual or alleged Wrongful Act of the Organization." The EPL and FLI Coverage Sections include language similar to that found in the D&O Coverage Section.

         The term "Claim" is defined in the D&O Coverage Section as:

(1) a written demand for monetary, non-monetary or injunctive relief (including any request to toll or waive any ...

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