City of Plaquemine v. N. AMERICAN CONST. , 682 So. 2d 1253 ( 1996 )

682 So. 2d 1253 (1996)

CITY OF PLAQUEMINE
v.
NORTH AMERICAN CONSTRUCTORS, INC., et al.
v.
STANDARD FIRE INSURANCE COMPANY, Aetna Casualty and Surety Company.
CITY OF PLAQUEMINE
v.
NORTH AMERICAN CONSTRUCTORS, INC., et al.
v.
AUDUBON INDEMNITY COMPANY, et al.

Nos. 96-CC-1825, 96-CC-1857.

Supreme Court of Louisiana.

November 8, 1996.

PER CURIAM.

The application is granted.

This action involves a claim of defective workmanship on a construction contract, filed by the City of Plaquemine against the general contractor and the project engineers. The general contractor filed a third party demand and cross claim against its alleged insurers, who denied coverage, as well as denying any duty to defend the general contractor under the allegations of the City's petition.

The general contractor then filed a motion for partial summary judgment on the "duty to defend" issue. The trial judge granted the motion, and the insurer both appealed and applied for supervisory writs.

The court of appeal denied supervisory writs, stating that this was a final judgment subject to review by appeal.

The insurers then filed the instant application to this court, asserting that there is a conflict among the circuit courts of appeal on whether a partial summary judgment ordering an insurer to defend an action is a non-appealable interlocutory judgment or a partial final judgment reviewable by appeal.

La.Code Civ.Proc. art. 966 D permits summary judgment on the issue of insurance coverage, which for procedural purposes implicitly includes the issue of duty to defend. La.Code Civ.Proc. art. 1915 provides that a summary judgment rendered pursuant to art. 966 D is not a partial final judgment for purposes of appeal.

Accordingly, the judgment of the court of appeal is vacated and set aside, and the matter is remanded to the court of appeal for consideration under its supervisory jurisdiction.

CALOGERO, C.J., not on panel.