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Sanders v. Swiftships, Inc.

Court of Appeals of Louisiana, First Circuit

September 20, 2018


          On appeal from the Sixteenth Judicial District Court In and for the Parish of St. Mary State of Louisiana Docket Number 117, 628 Honorable Paul J. deMahy, Judge Presiding

          Anthony J. Staines Counsel for Third -Party Plaintiff/Appellee/ Second Appellant Swiftships, Inc.

          Edward P. Landry New Iberia, LA Counsel for Third -Party Defendant/ Appellant/Second Appellee United Fire & Casualty Company


          GUIDRY, J.

         This is an appeal of judgments rendered on an incidental claim in a personal injury suit. For the reasons expressed herein, we reverse the first judgment, vacate the second judgment, dismiss the cross appeal, and remand this matter for further proceedings.


         In early September 1997, Mark A. Robicheaux, Inc. ("Robicheaux, Inc.") and Swiftships, Inc. executed a "Basic Ordering Agreement" ("BOA"), wherein for a recited amount of compensation, Robicheaux, Inc. agreed to provide shipbuilding craft labor on Swiftships vessels. According to the BOA, its term was from August 27, 1997 to November 27, 1997. Around a year later, on November 11, 1998, Bobbie J. Sanders, a Robicheaux, Inc. employee, was working aboard a Swiftships vessel, [1] when he fell through a floor hatch, allegedly left open by a Swiftships employee, and sustained injury. As a result of that accident, Sanders filed a petition for damages against Swiftships.

         Swiftships, in turn, filed a third-party demand against United Fire & Casualty Company ("United Fire"), claiming that pursuant to the BOA executed with Robicheaux, Inc., the insurance Robicheaux, Inc. obtained from United Fire provided coverage for Swiftships as well. Pursuant to such coverage, Swiftships demanded that United Fire defend, indemnify, and insure it against the claims of Sanders. However, as United Fire refused to defend, indemnify, or insure Swiftships against Sanders' claims, Swiftships sought a judgment compelling United Fire to do so and penalties and attorney fees for United Fire's failure to do so.

         Swiftships subsequently filed a motion for summary judgment on its third-party demand on August 19, 2011, seeking a ruling that it was an additional insured under the policy United Fire issued to Robicheaux, Inc. The trial court granted summary judgment in favor of Swiftships in a judgment signed January 6, 2012. United Fire sought an immediate appeal of the January 6, 2012 summary judgment, but this court dismissed the appeal because the judgment was a partial final judgment rendered pursuant to La. C.C.P. art. 966(E) that had not been certified as final pursuant to La. C.C.P. art. 1915(B). See Sanders v. Swiftships, Inc., 12-1195 (La.App. 1st Cir. 7/25/13), 2013 WL 3875327, at *2 (unpublished opinion).

         Thus, proceeding forward in the trial court, Swiftships filed motions to tax costs, for penalties pursuant to La. R.S. 22:1973, to assess attorney fees, and for a summary judgment awarding litigation expenses. A hearing on the various motions was held on July 20, 2016, following which the trial court signed a judgment on October 10, 2016, ordering United Fire to pay $49, 079.50 as the defense costs and expenses associated with Swiftships' defense in the Sanders suit. The trial court later granted United Fire a suspensive appeal of that judgment. Swiftships filed a cross motion for a devolutive appeal of the judgment seeking review of the trial court's denial of its request for penalties and attorney fees, which is also before us.


         On appeal, United Fire raises two assignments of error challenging the trial court's judgments signed on January 6, 2012[2] and October 10, 2016. The first assignment of error challenges the trial court's decree in the January 6, 2012 judgment that United Fire "is required to defend, indemnify, and insure Swiftships, Inc. against all claims asserted against Swiftships, Inc. in the lawsuit filed by Bobbie J. Sanders, Jr." It is United Fire's contention that genuine issues of material fact exist as to whether Swiftships was an additional insured under the commercial general liability policy it issued to Robicheaux, Inc. We find merit in this assignment of error.

         The United Fire policy issued to Robicheaux, Inc. that was in effect at the time of Sanders' accident provided, in pertinent part, under the section labeled "SUPPLEMENTARY PAYMENTS - COVERAGES A AND B"[3]:

If we defend an insured against a "suit" and an indemnitee of the insured is also named as a party to the "suit," we will defend that indemnitee if all the ...

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