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Cleave v. Temple

Court of Appeals of Louisiana, First Circuit

May 31, 2019

AARON L. VAN CLEAVE AND CHRISTY VAN CLEAVE
v.
ARTHUR WAYNE TEMPLE, MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, SCOTTSDALE INSURANCE COMPANY, FORD MOTOR COMPANY, SHERIFF NATHANIEL WILLIAMS, MARCHAND MACHINERY MAINTENANCE CO. - K, LLC KRISTY DUNNEHOO MARCHAND, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, MICHAEL ANN MARCHAND AND ALIXANDRA QUINN MARCHAND
v.
ARTHUR WAYNE TEMPLE, MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, SCOTTSDALE INSURANCE COMPANY, FORD MOTOR COMPANY, AND SHERIFF NATHANIEL WILLIAMS

          Appealed from the Twenty-First Judicial District Court In and for the Parish of St. Helena State of Louisiana Docket Numbers 21035 c/w 21049 Honorable Elizabeth P. Wolfe, Judge Presiding

          William C. Helm Counsel for Plaintiffs/ 1St Appellants Stephen F. Butterfield Kristy Dunnehoo Marchand, Baton Rouge, LA Individually and on behalf her minor children, Michael Ann Marchand and Alixandra Quinn Marchand

          Rick A. Caballero Counsel for Plaintiffs/2" d Appellants Baton Rouge, LA Aaron L. Van Cleave and Christy Van Cleave

          Timothy R. Richardson Craig Frausch Ronald S. Bryant New Orleans, LA Counsel for Defendant/Appellee Sheriff Nathaniel Williams

          Stacey A. Moak Jonathan Mayeaux Baton Rouge, LA Counsel for Defendant/Appellee Arthur Wayne Temple and Mississippi Farm Bureau Casualty Insurance Company

          BEFORE: WHIPPLE, C.J., MCCLENDON AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         The plaintiffs in these consolidated matters appeal the judgment of the Twenty-First Judicial District Court, granting one defendant's motion for summary judgment and dismissing the plaintiffs' claims against the defendant-mover, with prejudice. For the following reasons, we dismiss the appeal, in part, and affirm, in part.

         FACTS AND PROCEDURAL HISTORY

         On July 19, 2009, Allen Keith Marchand was driving a 2002 Ford F-350 truck, which was owned by Marchand Machinery Maintenance Co. - K, LLC, and Aaron L. Van Cleave was riding in the Marchand truck as a passenger. On the same date, Arthur Wayne Temple was driving a 2006 Ford F-250 truck. The Marchand truck was traveling eastbound on Louisiana Highway 16 in St. Helena Parish, and the Temple truck was traveling westbound on the same highway. Without warning, the Temple truck crossed the centerline of Louisiana Highway 16, entered the eastbound lane occupied by the Marchand truck, and struck the Marchand truck in a head-on collision. Mr. Marchand was killed as a result of the accident.

         Approximately an hour prior to the collision between the Temple truck and the Marchand truck on Louisiana Highway 16, June Blades was driving behind what was later discovered to be the Temple truck on Louisiana Highway 43. After observing the Temple truck driving erratically, swerving from one side of the road to another, and fluctuating in speed from twenty-five to thirty miles per hour to about fifty miles per hour, Ms. Blades called the St. Helena Parish Sheriffs Office to report the erratic vehicle on Louisiana Highway 43. While working as a dispatcher with the St. Helena Parish Sheriffs Office, Rhonda Leisa Ballard received the call from Ms. Blades reporting that "a green four-wheel drive truck [was] all over the road" at 5:56 am on July 19, 2009. As a result of Ms. Blades' call, a Greensburg Police Department unit responded to the area where the Temple truck was reported to be driving erratically, but did not find the Temple truck. A little over an hour after the initial report from Ms. Blades was received, Ms. Ballard received a 911 call reporting the head-on collision between the Marchand truck and the Temple truck.

         Aaron L. Van Cleave and Christy Van Cleave ("the Van Cleave plaintiffs") filed a petition for damages against numerous defendants, including Mr. Temple and Sheriff Nathaniel Williams ("Sheriff). Mr. Van Cleave sought damages for the severe injuries he received in the accident, and Christy Van Cleave sought damages as a result of her loss of consortium, services, and society due to her husband's injuries. The Louisiana Safety Association of Timbermen - Self Insurers Fund ("Fund") then filed a petition of intervention naming as defendants: Mr. Van Cleave, Mr. Temple, the Sheriff, and all other defendants named in the Van Cleave petition for damages. The Fund sought recovery of sums paid to or on behalf of Mr. Van Cleave under Louisiana's Worker's Compensation Law for his injuries and disability resulting from the July 19, 2009 accident.

         Additionally, Kristy Dunnehoo Marchand, individually and on behalf of her minor children, Michael Ann Marchand and Alixandra Quinn Marchand ("the Marchand plaintiffs"), filed a separate petition for damages against Mr. Temple and the Sheriff, among others. In the Marchand suit, a petition for intervention was filed by Bridgefield Casualty Insurance Company ("Bridgefield"). As the worker's compensation insurer of Mr. Marchand's employer, Bridgefield sought the recovery of sums paid to and on behalf of Mr. Marchand as a result of his death after the July 19, 2009 accident. In the intervention, Bridgefield aligned itself with the claims of the Marchand plaintiffs and asserted claims against all defendants named in the Marchand suit, including the Sherriff.

         After the original petitions and interventions were filed, the Van Cleave suit and the Marchand suit were consolidated pursuant to an order of the trial court. In both suits, the claims against the Sheriff were based on the fact that Ms. Blades reported the erratically driven Temple truck and on the allegation that the St. Helena Parish Sheriffs Office failed to promptly and properly respond. According to plaintiffs, the failure of the Sheriff to properly respond to the report of the erratic driver and to remove Mr. Temple from the highway were proximate causes of the head-on collision and resulting death of Mr. Marchand and injury to Mr. Van Cleave. The Sheriff filed a motion for summary judgment, seeking to dismiss the Marchand and Van Cleave plaintiffs' claims against it and maintaining that it did not breach any duty owed to the plaintiffs because the dispatcher, Ms. Ballard, acted appropriately and the Sheriff is not an insurer of the general public.

         The Sheriffs motion for summary judgment was opposed by plaintiffs, and a hearing was held on March 9, 2018, wherein the motion was granted.[1] The judgment granting the Sheriffs motion for summary judgment was signed by the trial court on April 16, 2018, and devolutive appeals were timely requested and obtained by the Marchand plaintiffs and Aaron Van Cleave. The plaintiffs assign as error that the trial court erroneously granted summary judgment in favor of the Sherriff as genuine issues of material fact remain.

         APPELLATE JURISDICTION

         Notwithstanding that the parties have not raised the issue of subject matter jurisdiction, appellate courts have the duty to examine the basis of its jurisdiction sua sponte. Herrera v. First Nat. Ins. Co. of Am., 2015-1097 (La.App. 1st Cir. 6/3/16), 194 So.3d 807, 810-11, writ denied, 2016-1278 (La. 10/28/16), 208 So.3d 885. This court's appellate jurisdiction extends only to final judgments and judgments expressly made appealable by law. Id. at 810; LSA-C.C.P. art. 2083. A final judgment is one that determines the merits in whole or in part. LSA-C.C.P. art. 1841. A final judgment which partially determines the merits may be appealed as set forth in LSA-C.C.P. art. 1915(A).[2] However, LSA-C.C.P. art. 1915(B) provides that when a court renders a partial judgment or partial summary judgment, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand or intervention, the judgment shall not constitute a final judgment unless it is designated as such by the court after an express determination that there is no just reason for delay. A partial final judgment under Article 1915(A) is appealable without designation, and a partial final judgment under Article 1915(B) is appealable only if so designated by the court. LSA-C.C.P. art. 1911(B).

         In these consolidated matters, [3] the trial court granted the Sheriffs motion for summary judgment, which only partially determined the merits of a portion of the claims at issue. In the Van Cleave suit, the April 16, 2018 judgment dismissed the claims of Aaron Van Cleave against the Sheriff in the principal demand, but did not address the claims of Christy Van Cleave against the Sheriff. Accordingly, the Sheriff remains a defendant in the principal demand and a defendant in intervention in the Van Cleave suit. However, in the Marchand suit, the April 16, 2018 judgment ordered that all claims and causes of action asserted in the actions by Kristy Dunnehoo Marchand, individually and on behalf of her minor children, Michael Ann Marchand and Alixandra Quinn Marchand, against the Sheriff be dismissed, with prejudice. While the Sheriff remains a defendant in Bridgefield's petition of intervention, the judgment appealed dismissed all of the claims of all named plaintiffs in the Marchand suit asserted against the Sheriff.

         Pursuant to LSA-C.C.P. art. 1915(A)(1), a partial final judgment may be rendered, even though it does not adjudicate all the issues in the case, when the court dismisses the suit as to less than all the parties, defendants, or intervenors. Additionally, LSA-C.C.P. art. 1915(A)(3) provides that a partial final judgment may be rendered, even though it does not adjudicate all the issues in the case, when the court grants a motion for summary judgment as provided in LSA-C.C.P. arts. 966 through 969, but not a summary judgment as provided in LSA-C.C.P. art. 966(E).[4] The April 16, 2018 judgment issued in the Marchand suit is a partial final judgment pursuant to LSA-C.C.P. art. 1915(A)(1) and (3), as it dismissed all claims against the Sheriff in the main demand and granted a motion for summary judgment that was not an Article 966(E) summary judgment. Accordingly, the judgment in the Marchand suit is final and appealable without designation and is properly before this court on appeal. See Pontchartrain Nat. Gas Sys. ...


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