GUSTAVE J. LABARRE, JR., ET AL.
OCCIDENTAL CHEMICAL COMPANY AND TEXAS BRINE COMPANY, LLC, ET AL.
Appeal from the Twenty-Third Judicial District Court In and
for the Parish of Assumption State of Louisiana No. 33, 796
The Honorable Jason M. Verdigets, Judge Presiding
Leopold Z. Sher James M. Garner Peter L. Hilbert, Jr. Neal J.
Kling Jeffrey D. Kessler New Orleans, Louisiana Attorneys for
Appellant/ Defendant/Third-Party Plaintiff, Texas Brine
Ryland Percy, III Gonzales, Louisiana Travis J. Turner
Gonzales, Louisiana Eric J. Mayer Houston, Texas Frank H.
Spruiell, Jr. Reid A. Jones Seth M. Moyers Shreveport,
Louisiana Attorneys for Appellant/ Defendant/Third-Party
Plaintiff, Sol Kirschner
J. Lemoine New Orleans, Louisiana Attorney for Appellee/
Third -Party Defendant, National Surety Corporation
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
plaintiff, Texas Brine Company, LLC (Texas Brine), appeals
the trial court's judgment granting summary judgment in
favor of appellee/third-party defendant, National Surety
Corporation (National Surety), and dismissing its
claims. For the reasons that follow, we reverse
the trial court.
AND PROCEDURAL HISTORY
underlying litigation in this matter involves the 25-acre
sinkhole in Assumption Parish that resulted when the site of
a former brine well, known as the Oxy Geismar Well No. 3
(OG3) collapsed. Texas Brine originally drilled OG3 on land
owned by Occidental Chemical Corporation (Oxy) in 1982, in
order to produce salt from the Napoleonville Salt Dome (Salt
Dome), which lies beneath Oxy's land. In 1983, Oxy leased
a part of its land to Colorado Crude Company (Colorado Crude
Lease) for the purpose of drilling an oil well. In 1986, an
oil well was drilled and became known as Hooker #1
plaintiffs filed suit against several defendants, including
Texas Brine, for damages to their property. In the course of
the litigation, Texas Brine filed an Amended Incidental
Demand Against Operators and Lessees of the Hooker #l Well.
Sol Kirschner was named as a third-party defendant as a prior
operator and/or lessee of Hooker #1 Well, along with several
other co-lessees and joint operators. Texas Brine asserted
that Mr. Kirschner held an interest in commercial drilling
operations near the site of the sinkhole. Texas Brine also
claimed that the Salt Dome was breached during the drilling
and/or operation of Hooker #1 Well, which shared a common
wall with the OG3 cavern. Texas Brine alleged that Mr.
Kirschner was a party to the mineral leases under which the
Hooker #1 Well was operated, including the Colorado Crude
Lease, and that he is liable with his co-lessees to Texas
Brine under the Colorado Crude Lease. Texas Brine later
amended its incidental demand to add National Surety as a
third-party defendant and alleged that it is entitled to
damages and other forms of relief from National Surety
pursuant to an insurance policy issued to Mr.
Surety issued premier insurance policies with homeowner's
and excess coverage for Mr. Kirschner's Dallas, Texas
home, including the premises and its contents. The policies
included both a homeowner's primary policy, with
liability limits of $500, 000 (Primary policy), and an excess
policy, with liability limits of $5, 000, 000 (Excess
policy). National Surety filed a motion for summary judgment
seeking a declaration that the applicable policies of
insurance excluded coverage for business activities, which
would exclude alleged losses associated with Mr.
Kirschner's interest in commercial drilling operations
near the site of the sinkhole. National Surety maintained
that Texas Brine would be unable to carry its burden of
proving that the operations at the Hooker #1 Well were not
business activities, and thus were excluded from coverage.
National Surety argued that the Hooker #1 Well did not
constitute a covered incidental business such that the narrow
exceptions to the business activities exclusion would apply.
In opposition, Texas Brine argued that the policies issued by
National Surety were expansive and deluxe offerings, which
afforded greater protection to its insureds than a typical
homeowner's policy. It was further urged by Texas Brine
that there were genuine issues of material fact precluding
matter was heard by the trial court on February 1, 2017, and
taken under advisement. On April 20, 2017, the trial court
issued its reasons for judgment as well as a judgment, which
granted the summary judgment in favor of National Surety, but
did not dismiss any party or claims. Texas Brine filed a
notice of intent to apply for supervisory writ, but the trial
court denied the request for a return date. Despite the
denial of the trial court, Texas Brine filed its writ
application with this court on June 2, 2017, which was
assigned No. 2017-CW-0756. Texas Brine also filed a petition
for devolutive appeal of the April 20, 2017 judgment, which
was granted on May 31, 2017. In light of Texas Brine's
filing for supervisory writ, National Surety filed a motion
to amend the judgment to include appropriate decretal
language on June 5, 2017. On June 28, 2017, the trial court
issued an amended judgment granting National Surety's
motion for summary judgment and dismissing the claims of
Texas Brine against National Surety with prejudice. The trial
court issued an order for devolutive appeal of the amended
judgment on July 14, 2017. This court referred the writ to
the panel to which the appeal was assigned. Labarre, et
al. v. Occidental Chemical Company and Texas Brine
Company, LLC, 2017-0756 (La.App. 1 Cir. 8/22/17)
(unpublished writ action).
April 20, 2017 judgment was not a final judgment as it did
not contain any decretal language. A valid judgment must be
precise, definite, and certain. Laird v. St. Tammany
Parish Safe Harbor, 2002-0045 (La.App. 1 Cir. 12/20/02),
836 So.2d 364, 365. A final appealable judgment must contain
decretal language, and it must name the party in favor of
whom the ruling is ordered, the party against whom the ruling
is ordered, and the relief that is granted or denied. See
Carter v. Williamson Eye Center, 2001-2016 (La.App. 1
Cir. 11/27/02), 837 So.2d 43, 44. The June 28, 2017 amended
judgment cured the defect in the decretal language by
dismissing the claims of Texas Brine against National Surety
with prejudice. The amended judgment dismissed the suit as to
less than all the parties and granted the motion for summary
judgment. Therefore, the June 28, 2017 amended
judgment is immediately appealable as a partial final
judgment pursuant to La. C.C.P. art. 1915(A)(1) and (A)(3).
Accordingly, we maintain the appeal and dismiss the writ
application as moot.
judgment procedure is favored and "is designed to secure
the just, speedy, and inexpensive determination of every
action .... and shall be construed to accomplish these
ends." La. C.C.P. art. 966(A)(2). In reviewing the
trial court's decision on a motion for summary judgment,
this court applies a de novo standard of review using the
same criteria applied by the trial courts to determine
whether summary judgment is appropriate. Smith v. Our
Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94),
639 So.2d 730, 750-51.
burden of proof rests with the mover. If the mover will not
bear the burden of proof at trial, the mover is not required
to negate all essential elements of the adverse party's
claim, but only to point out to the court the absence of
factual support for one or more of the elements necessary to
the adverse party's claim. The burden is on the adverse
party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law. La.
C.C.P. art. 966(D)(1).
an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as
to material fact and that the mover is entitled to judgment
as a matter of law." La. C.C.P. art. 966(A)(3).
Moreover, as observed by the Supreme Court in Jackson v.
City of New Orleans, 2012-2742 (La. 1/28/14), 144 So.3d
876, 882, cert, denied, ___U.S.___, 135 S.Ct. 197,
190 L.Ed.2d 130 (2014),
A fact is material if it potentially ensures or precludes
recovery, affects a litigant's ultimate success, or
determines the outcome of the legal dispute. A genuine issue
of material fact is one as to which reasonable persons could
disagree; if reasonable persons could reach only one
conclusion, there is no need for trial on that issue and
summary judgment is appropriate.
motion for summary judgment is a proper procedural device for
determining "whether an insurance policy, as a matter of
law, provides or precludes coverage." Dixon v.
Direct General Insurance Company of Louisiana, 2008-0907
(La.App. 1 Cir. 3/27/09), 12 So.3d 357, 360.
Surety issued policy NZT 02566668 to Mr. Kirschner, providing
both primary and excess coverage, subject to certain terms,
conditions, and exclusions. The Primary policy provided
homeowner's coverage for the premises and the contents of
Mr. Kirschner's home, as well as personal liability.
However, the personal liability section of the Primary policy
excluded coverage for business activities.
"Business" is defined by the policy as "an
occupation, employment, trade, profession, or other activity
performed in exchange for money or other compensation,
including farming or ranching operations and property
rental." The Primary policy contains an exception to the
exclusion of business activities for an "incidental
business." An "incidental business" is defined
[S]elf-employment or other employment of any insured that:
a. produces a gross annual income of less than $10, 000 in