Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pontchartrain Natural Gas System v. Texas Brine Company, LLC

Court of Appeals of Louisiana, First Circuit

December 12, 2019

PONTCHARTRAIN NATURAL GAS SYSTEM, K/D/S PROMIX, L.L.C., AND ACADIAN GAS PIPELINE SYSTEM
v.
TEXAS BRINE COMPANY, LLC

          On Appeal from the 23rd Judicial District Court In and for the Parish of Assumption State of Louisiana Trial Court No. 34, 265 Honorable Thomas J. Kliebert, Jr., Judge Presiding

          Leopold Z. Sher James M. Garner Peter L. Hilbert, Jr. Jeffrey D. Kessler Amanda R. Schenck New Orleans, LA Travis J. Turner Gonzales, LA Robert Ryland Percy, III Gonzales, LA Eric J. Mayer Houston, TX Attorneys for Appellant/Defendant, Third -Party Plaintiff, Texas Brine Company, LLC

          Mary S. Johnson Mandeville, LA Nichole M. Gray New Orleans, LA Attorneys for Appellees/Defendants, Third -Party Defendants, National Union Fire Insurance Company of Pittsburgh, Pa., and AIG Specialty Insurance Company

          BEFORE: GUIDRY, McDONALD, WELCH, HIGGINBOTHAM, AND THERIOT, JJ.

          HIGGINBOTHAM, J.

         This is another appeal related to the many disputes surrounding the Bayou Corne sinkhole that developed in Assumption Parish on August 3, 2012. The issues in this appeal concern potential insurance coverage pursuant to policies that pre-date the occurrence of the sinkhole and whether the insurers have any remaining duty to defend.

         Defendant and third-party plaintiff, Texas Brine Company, LLC, appeals the September 13, 2017 summary judgment dismissal of the claims of Pontchartrain Natural Gas System, K/D/S Promix, L.L.C., and Acadian Gas Pipeline (collectively referred to as "Pontchartrain"), in the underlying litigation against some of Texas Brine's insurers. The insurers, National Union Fire Insurance Company of Pittsburgh, Pa., and AIG Specialty Insurance Company (referred to herein as "National Union and AIG"), answered the appeal, asserting that the district court erred in denying their motion for summary judgment seeking a dismissal of Texas Brine's incidental demand against them. National Union and AIG also filed a motion to dismiss Texas Brine's appeal, arguing that the summary judgment is a partial judgment not designated as final for purposes of appeal pursuant to La. Code Civ. P. art. 1915. In turn, Texas Brine filed an exception of lack of subject matter jurisdiction or alternatively, a motion to dismiss National Union and AIG's answer to appeal. National Union and AIG filed a motion to dismiss, or alternatively to strike, Texas Brine's exception/motion. All of the exceptions/motions filed in this court were referred to this merits panel.

         For the reasons stated in a previous appeal that is the same in all respects except for the insurers of Texas Brine, we deny the motion to dismiss. See Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2018-0244 (La.App. 1st Cir. 10/11/18), 264 So.3d 545, 550, writ denied, 2019-0080 (La. 3/6/19), 264 So.3d 1204 ("when there is an appeal from a final judgment, i.e., a district court's grant of summary judgment, an interlocutory ruling may also be reviewed by the appellate court."). See also Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC, 2018-0218 (La.App. 1st Cir. 1/11/19), 272 So.3d 547, 549 n.2, writ denied, 2019-00510 (La. 9/24/19), 279 So.3d 385 ("[b]ecause the judgment dismisses all of [plaintiffs] claims against [the insurer], it is appealable under Article 1915(A)(1) and (3)"). Furthermore, while a denial of a motion for summary judgment is a non-appealable, interlocutory judgment, when an appeal is taken from a partial summary judgment that is immediately appealable under Article 1915, an appellee may seek review of the interlocutory judgment involving the same or related issues by filing an answer to the appeal. See Florida Gas, 272 So.3d at 549 n.3. Thus, we deny all of the exceptions/motions to dismiss.

         As for the merits of Texas Brine's appeal, as well as National Union and AIG's answer to appeal, we recognize that this court has previously considered and decided these same issues, arguments, and evidence in recent appeals connected with this protracted sinkhole litigation. See Crosstex Energy Services, LP v. Texas Brine, Company, LLC, 2017-0863 (La.App. 1st Cir. 12/21/17), 240 So.3d 1024, 1029-30, writ denied, 2018-0144 (La. 3/23/18), 238 So.3d 962, and Florida Gas Transmission Company, LLC v. Texas Brine Company, LLC, 2018-0062 (La.App. 1st Cir. 1/11/19), 2019 WL 168583, *l (unpublished opinion). See also Pontchartrain, 264 So.3d at 552-53. We are bound to follow the final and definitive judgments rendered by other panels of this court. Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2018-0001 (La.App. 1st Cir. 6/4/18), 253 So.3d 156, writ denied, 2018-1124 (La. 9/28/18), 253 So.3d 147. The Crosstex case is now a final and definitive judgment since the Louisiana Supreme Court has denied Texas Brine's application for a writ of certiorari. See La. Code Civ. P. art. 2167(C).

         As in the other appeals concerning summary judgment rulings in favor of insurers of Texas Brine, the motion for summary judgment filed by National Union and AIG avowed that their pre-2012 insurance policies, the last of which expired on March 1, 2009, do not cover Pontchartrain's claims and, consequently, do not require the insurers to provide a defense to Texas Brine. National Union and AIG cite policy language limiting coverage to damage that "occurs during the policy period" and declaring that they have no duty to defend an insured against "any 'suit' seeking damages for ... 'property damage' to which this insurance does not apply." We agree with the insurers' arguments and find no distinguishing facts for a different result in this appeal.

         After a thorough de novo review of the record in this appeal, we find that National Union and AIG met their initial burden of pointing to an absence of factual support for an essential element to Pontchartrain's claims under the insurers' pre-2012 policies. Coverage pursuant to the pre-2012 policies was never triggered since Pontchartrain's alleged property damage did not occur during the effective dates of the pre-2012 policies. Pontchartrain did not substantively oppose the insurers' motion for summary judgment; however, as in the other related cases, Texas Brine vigorously opposed the motion. Texas Brine's opposition heavily relies on the same speculative expert opinions extraneous to Pontchartrain's allegations and admissions that plaintiffs are not seeking pre-sinkhole damages and were never aware of any damages that occurred prior to the emergence of the sinkhole. For the reasons contained in our previous opinions on these same issues, we affirm the September 13, 2017 summary judgment dismissing Pontchartrain's claims against National Union and AIG.

         Texas Brine argues in its brief that any clarification of the termination of its insurers' duties and obligations as related to the duty to defend Texas Brine was not raised in the district court. Additionally, Texas Brine did not assign error as to the question of when the duty to defend terminates. Nevertheless, in their answer to Texas Brine's appeal National Union and AIG did request clarification as to the termination of their duty to defend Texas Brine. The record reflects that Texas Brine definitively raised the duty to defend issue in its opposition to summary judgment. National Union and AIG cited policy language in their original motion regarding the lack of a defense duty when coverage does not apply. Further, National Union and AIG, in a reply brief filed in support of their motion, specifically requested that the district court grant summary judgment as to Texas Brine's third-party claims against them, which are "derivative" of Pontchartrain's claims.

         Additionally, as the district court's reasons for judgment and written judgment clearly indicate, the duty to defend issue was considered and denied at the August 1, 2017 hearing on the motion for summary judgment. Louisiana Code of Civil Procedure article 966(F) makes clear that a summary judgment may be "rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." The 2015 Official Revision Comments (1) for article 966(F), offers an extra explanation that, "in deciding a motion for summary judgment, a court can consider only the issues raised in the motion or opposition filed by the parties. The court cannot rule on issues not raised by the parties." [Emphasis added.] Considering all of these reasons, we find that the duty to defend issue was raised by the insurers, opposed by Texas Brine, and considered by the district court before the ruling was issued. Thus, we find no merit in Texas Brine's argument to the contrary.[1]

         Our previous decisions in the related sinkhole appeals clearly set out the well-established rule of law that an insurer's duty to defend terminates once the undisputed facts establish, or a judicial determination is made, that the claims asserted are not covered under the policy. See Florida Gas, 272 So.3d at 551; Pontchartrain, 264 So.3d at 553-54; Crosstex, 240 So.3d at 1032. See also Maldonado v. Kiewit La. Co., 2013-0756 (La.App. 1st Cir. 3/24/14), 146 So.3d 210, 219; Allstate Ins. Co. v. Roy, 94-1072 (La.App. 1st Cir. 4/7/95), 653 So.2d 1327, 1333, writ denied, 95-1121 (La. 6/16/95), 655 So.2d 339 (holding that an insurer's duty to defend terminates once the undisputed facts establish that claims asserted are not covered under the policy); West v. Bd. of Comm'rs of Port of New Orleans, 591 So.2d 1358, 1360 (La.App. 4th Cir. 1991) ("[e]ven though the duty to defend is broader than the question of liability, when in a summary judgment the trial court decides as a matter of law the exclusion is applicable, meaning there is no coverage, then of course there is no duty to defend."). Consequently, we ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.