NELCOME J. COURVILLE, JR., ET AL
LAMORAK INSURANCE COMPANY, ET AL
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2017-01117, DIVISION "B-1"
Honorable Rachael Johnson
Gerolyn P. Roussel Perry J. Roussel, Jr. Jonathan B. Clement
Lauren R. Clement Benjamin P. Dinehart ROUSSEL & CLEMENT
COUNSEL FOR PLAINTIFFS/RELATORS
Minor Pipes, III Stephen Miles PIPES MILES BECKMAN, LLC
Robert A. Kole CHOATE, HALL & STEWART LLP COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins
L. BELSOME, JUDGE
emergency writ application is taken from the trial
court's October 15, 2019 judgment granting a motion for
summary judgment, which dismissed claims against Liberty
Mutual Insurance Company. Relators seek immediate review of
that ruling due to the impending trial date of November 4,
2019. For the reasons that follow, the writ is granted and
the trial court's judgment is reversed.
Courville filed suit against multiple defendants for asbestos
exposure. That exposure over many years resulted in Mr.
Courville contracting mesothelioma. Mr. Courville died as a
result of his mesothelioma. Thereafter, his wife and children
("Relators") substituted themselves as plaintiffs
asserting survival and wrongful death claims. Reilly-Benton
Company, Inc. ("Reilly-Benton") was a named
defendant in the suit. In October of 2017, Reilly-Benton
filed a Voluntary Petition for Bankruptcy. Thereafter,
Relators supplemented and amended their petition to name
Liberty Mutual Insurance Company ("Liberty Mutual")
as a direct defendant pursuant to La. R.S. 22:1269 for the
liability of Reilly-Benton.
Liberty Mutual filed a Motion for Summary Judgment contending
that a 2013 Settlement Agreement between Liberty Mutual and
Reilly-Benton, resolving alleged coverage disputes, prevented
the Relators from recovering damages from Liberty Mutual. The
trial court agreed, granted the summary judgment, and
dismissed the claims against Liberty Mutual with prejudice.
This writ application followed.
issue before this Court is whether a 2013 Settlement
Agreement ("Settlement Agreement"), between Liberty
Mutual and Reilly-Benton, can limit Liberty Mutual's
liability to Mr. Courville for asbestos exposure that
occurred in the 1960s and 1970s.
Court has addressed a similar scenario in Long v.
Eagle, 2014-0889 (La.App. 4 Cir. 2/25/15), 158 So.3d
968, which was also an asbestos exposure lawsuit. In
Long, the plaintiff named defendant, Eagle Asbestos
& Packing Company, Inc. ("Eagle") and one of
its commercial general liability (CGL) insurers, OneBeacon,
as defendants. OneBeacon brought a third-party claim against
another CGL insurer, United States Fidelity and Guaranty
Company (USF&G) seeking a declaration that the second CGL
insurer was obligated to pay its share of defense costs and
for reimbursement of expenses expended on the second
insurer's behalf. Id.
exposure alleged in Long spanned from 1958 to 1979.
During that timeframe, OneBeacon and USF&G had multiple
years where they issued the primary CGL policy to Eagle.
Id. 2014-0889, p. 1, 158 So.3d at 969. In 2003,
Eagle and USF&G entered into a settlement agreement that
resolved coverage disputes, including coverage for
USF&G's pro-rata share of defense costs. Id.
2014-0889, p. 2, 158 So.3d at 969-70. USF&G asserted the
settlement agreement as a defense to OneBeacon's claim
against them. Then, OneBeacon filed a motion for summary
judgment claiming that the Settlement Agreement was void
under La. R.S. 22:1262. The trial court granted the motion
for summary judgment, USF&G appealed that ruling, and
this Court reversed the trial court. In so doing, this Court
found that the public policy protections discussed in
Washington v. Savoie, 634 So.2d 1176 (La. 1994) and
the mandates of La. R.S. 22:1262 were not intended to protect
other insurers. Id. 2014-0889, p. 4-6, 158 So.3d at
971-72. At the same time, this Court explicitly stated that
if the party seeking to challenge the settlement agreement
was an injured plaintiff the Court's analysis would be
instant case, tort victims are seeking to challenge this
Settlement Agreement. Thus, this Court must determine the
applicability of Washington and La. R.S. 22:1262
under the given circumstances. The Louisiana Supreme
Court's opinion in Washington examined the law
and public policy as it relates to the reformation of
insurance policies, specifically when the reformation
adversely affects a tort victim. That Court acknowledged that
reformation of an insurance contract to correct a mistake
within a policy is not prohibited. However, when reformation
would prejudice an injured third party, Louisiana's
public policy precludes post-injury contract reformation of
any kind. Washington, 634 So.2d at 1180. Therefore,
applying Louisiana's public policy law as set forth in
Washington to this case, a CGL insurer that provided
unlimited coverage under a policy of insurance would be
barred from any post-injury settlement to limit that
if we consider the statute that specifically addresses the
annulment of liability policies, La. R.S. 1262, it provides:
No insurance contract insuring against loss or damage through
legal liability for the bodily injury or death by accident of
any individual, or for damage to the property of any person,
shall be retroactively annulled by any agreement between the
insurer and insured after the occurrence of any such injury,
death, or damage for which ...