BOBBIE J. SANDERS, JR.
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.
P. Landry New Iberia, LA Counsel for Third -Party Defendant/
Appellant/Second Appellee United Fire & Casualty Company
BEFORE: GUIDRY, PETTIGREW, McDONALD, HIGGINBOTHAM, AND GRAIN,
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
AND PROCEDURAL HISTORY
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,  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.
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.
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).
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.
appeal, United Fire raises two assignments of error
challenging the trial court's judgments signed on January
6, 2012 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.
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":
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