Gustave J. LaBarre Jr., Ramona H. Talbot, Howard J. Dupre III, Gail D. Boudreaux, Floyd A. LaBarre, Marlene L. Folse, Cheryl D. Daigle, Henry R. Lawes Jr., Sidney J. Hernandez, June D. Bouchereau, Louis P. Leblanc Jr., Pierre F. V. DeLaBarre IV, Mary G. D v. Texas Brine Company, LLC and Georgia Gulf Chemical & Vinyls, LLC ( 2023 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 1221 AND 2022 CW 0783
GUSTAVE J. LABARRE, JR., ET AL.
VERSUS
TEXAS BRINE COMPANY, LLC AND GEORGIA GULF CHEMICALS &
VINYLS, LLC
judgment Rendered: APR 2 8 202.3 .
23" Judicial District Court
In and for the Parish of Assumption
State of Louisiana
Case No. 30650
The Honorable Jason Verdigets, Judge Presiding
James M. Garner Counsel for Third -Party Plaintiff/
Peter L. Hilbert Appellee
Martha Curtis Texas Brine Company, LLC
Darnell Bludworth
Brandon W. Keay
New Orleans, Louisiana
Jason Rogers Williams
Hannah Beth Salter
New Orleans, Louisiana
Kenneth J. Dupaty
Gonzales, Louisiana
Travis J. Turner
Gonzales, Louisiana
Michael H. Rubin Counsel for Appellant
Justin O' Brien Indian Harbor Insurance Company
Baton Rouge, Louisiana
Timothy E. Pujol
Barbara Lane Irwin
Gonzales, Louisiana
Antonio " Tony" Clayton
D' Ann Rose Penner
Port Allen, Louisiana
Paula M. Wellons
New Orleans, Louisiana
M. Keith Moskowitz, pro hac vice
John Grossbart, pro hac vice
Marilyn B. Rosen, pro hac vice
Chicago, Illinois
BEFORE: WELCH, LANIER, and WOLFE, JJ.
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LANIER, J.
In this appeal, the appellant, Indian Harbor Insurance Company ( Indian
Harbor), seeks review of the Twenty -Third Judicial District Court' s denial of a
motion for partial summary judgment. Additionally, Indian Harbor has applied for
a supervisory writ regarding the same issue addressed in the instant appeal. For the
following reasons, we dismiss the appeal and deny the writ.
FACTS AND PROCEDURAL HISTORY
The instant case involves extensive litigation dating back to 2007. The
pertinent facts are as follows: In 1965, Pierre LaBarre granted a salt and storage
lease of land he owned to a company, which ultimately assigned its interest to
Texas Brine Company, LLC and Georgia Gulf Chemicals and Vinyls, LLC
collectively Texas Brine). The LaBarre plaintiffs' filed suit against Texas Brine
in December 2007 alleging, among other things, that Texas Brine breached the
lease by disposing of waste materials in caverns or "jugs" on the LaBarre property.
A May 2009 second supplemental and amending petition added claims for water
and soil contamination from the spillage and/ or disposal of toxic processing wastes
on, in, and adjacent to the LaBarre property without consent of the LaBarre
plaintiffs. According to Texas Brine, the second supplemental and amending
petition transformed the action from a lease dispute to a property contamination
suit.
Indian Harbor, as insurer for Texas Brine, issued two pollution and
remediation legal liability (" PARLL") policies, one providing coverage from
November 2005 to November 2008, and the other providing coverage from
November 2008 to November 2011. Both policies covered Texas Brine locations
LaBarre plaintiffs" collectively refers to all the plaintiffs who now share an interest in Pierre
LaBarre' s property.
3
The
nationwide, including three locations in Louisiana and two in New York.
policies contain a New York choice of law provision, which reads:
Choice of Law - All matters arising hereunder including questions
related to the validity, interpretation, performance and enforcement of
this Policy shall be determined in accordance with the laws and
practice of the State of New York ( notwithstanding New York' s
conflicts of law rules).
In December 2012, Texas Brine filed a third -party demand against Indian
Harbor, alleging entitlement to defense and indemnification under the 2008 policy
for the LaBarre plaintiffs' claims. Indian Harbor answered the third -party demand,
denying that the 2008 policy was applicable and denying that the 2008 policy
provided coverage and indemnification for Texas Brine' s actions. Indian Harbor
also reconvened against Texas Brine, asserting a claim for partial rescission of the
2008 policy based upon allegedly false and incomplete statements made by Texas
Brine in its sworn Facilities Pollution Application Form for its 2008 insurance
policy, upon which the 2008 policy was based.
In October 2013, Indian Harbor moved for partial summary judgment
regarding choice of law, noting there were material differences between New
York, Texas, and Louisiana law on the various issues in the case. The trial court
set aside the motion and did not rule upon it at that time. Both Indian Harbor and
Texas Brine proceeded to file numerous pleadings and exceptions. In a judgment
signed August 22, 2016, the trial court denied exceptions of no cause of action and
prematurity filed by Texas Brine.' The trial court also ruled that the contractual
choice of law clause was inapplicable since there was no inherent link to the State
3
of New York in the instant case, and Louisiana law would therefore apply.
a As these exceptions were not provided to this Court, we cannot determine the bases for Texas
Brine' s objections of no cause of action and prematurity.
3 In open court on October 7, 2016, in response to Indian Harbor' s argument that the trial court' s
ruling on the choice of law issue was outside the scope of the objections pled in the exceptions,
the trial court stated that the exception of prematurity allowed the trial court to consider evidence
outside the pleadings, that evidence was submitted that New York had no connection to the claim
4
Thereafter, Indian Harbor renewed its motion for partial summary judgment
regarding choice of law. The trial court denied Indian Harbor' s motion, again
finding that Louisiana law applied to the choice of law issue. Indian Harbor
moved for reconsideration of this ruling, which was denied for the same reasons
given in its ruling on the exceptions of no cause of action and prematurity. Indian
Harbor applied for supervisory writs on the denial of its motion for partial
summary judgment, which this Court denied on January 23, 2017. See LaBarre v.
Texas Brine Company, LLC, 2016- 1466 ( La. App. 1 Cir. 1123117), 2017 WL
325239 ( unpublished writ action).'
Indian Harbor again moved for partial summary judgment on the choice of
law issue, following the Louisiana Supreme Court' s opinion in Creekstone Julian 1,
L.L. C. v. XL Insurance America, Inc., 2018- 0748 ( La. 518119), 282 So. 3d 1042,
Tracking the supreme court' s language regarding party autonomy and freedom to
contract, Indian Harbor asserted that New York law clearly applied to the instant
case, making the choice of law clause in the insurance contract effective.
Alternatively, Indian Harbor urged that if the choice of law clause was not upheld,
Texas law rather than Louisiana law should apply.
Texas Brine opposed Indian Harbor' s motion, asserting that the trial court
had considered the merits of the choice of law issue and concluded that Louisiana
law applied. The trial court denied Indian Harbor' s motion. Indian Harbor applied
for supervisory writs, and also filed the instant appeal. On October 11, 2022, this
Court referred the writ to the panel with which the appeal was lodged. See
LaBarre v. Texas Brine Company, LLC, 2022- 0783 ( La. App. 1 Cir. 10/ 11/ 22)
unpublished writ action).
at issue, and that Indian Harbor argued at the hearing on the exception that New York law
applied.
4 This Court stated therein: " This Court declines to exercise its supervisory jurisdiction. The
criteria set forth in Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc.,
396 So. 2d 878 ( La. 1981) ( per curiam) are not met."
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DISCUSSION
Motion for Appeal
On May 26, 2022, the hearing on the motion for partial summary judgment
was held. Following argument, the trial court denied Indian Harbor' s motion
finding Creekstone was not relevant to reverse the previous decision on the choice
of law issue. Indian Harbor then orally moved that the judgment be certified as
appealable, arguing that it was an important issue to be decided prior to trial. The
trial court agreed and designated the judgment as final and appealable pursuant to
La. C. C. P. art. 1915( B). A written judgment reflecting this ruling was executed
and signed by the trial court on June 30, 2022.
A judgment that does not determine the merits but only preliminary matters
in the course of the action is an interlocutory judgment. La. C. C. P. art. 1841. " An
interlocutory judgment is appealable only when expressly provided by law." La.
C. C. P. art. 2083( 0). Further, the provisions of La. C. C. P. art. 1915( B) do not
apply to a denial of a motion for partial summary judgment. See La. C. C. P. art.
1915( B)( 1). Similarly, La. C. C. P. art. 968 provides, in pertinent part, that: " An
appeal does not lie from the court' s refusal to render any judgment on the pleading
or summary judgment." Thus, a denial of a motion for summary judgment, in
whole or in part, is an interlocutory judgment that is not appealable and cannot be
certified as such pursuant to La. C. C. P. art. 1915( B). Ascension School Employees
Credit Union v. Provost Salter Harper & Alford, L. L. C., 2006- 0992 ( La. App. 1
Cir. 3/ 23/ 07), 960 So. 2d 939, 940.
Based on the foregoing, although La. C. C. P. 1915( B) allows a trial court to
designate a partial summary judgment as a final judgment, it does not provide that
a judgment denying a motion for summary judgment can be so designated.
Moreover, La. C.C.P. art. 968 expressly provides that a judgment denying a motion
for summary judgment is not appealable. See Young v. City ofPlaquemine, 2004-
2305 ( La. App. 1 Cir. 1114105), 927 So. 2d 408, 410- 11. The trial court' s judgment
on the motion for partial summary judgment is not appealable, and we therefore
dismiss the appeal.
Writ Action
Supervisory jurisdiction may be exercised to reverse a trial court' s denial of
a motion for summary judgment, and to enter summary judgment in favor of the
mover. Campbell v. Markel American Ins. Co., 2000- 1448 ( La. App. 1 Cir.
9121101), 822 So.2d 617, 620, writ denied, 2001- 2813 ( La. 114102), 805 So. 2d 204.
A court of appeal has plenary power to exercise supervisory jurisdiction over
district courts and may do so at any time, according to the discretion of the court.
Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396
So. 2d 878 ( La. 1981) ( per curiam). This general policy, however, should not be
applied mechanically. When the denial of the motion is arguably incorrect, when a
reversal will terminate the litigation, and when there is no dispute of fact to be
resolved, judicial efficiency and fundamental fairness to the litigants dictates that
the merits of the application for supervisory writs should be decided in an attempt
to avoid the waste of time and expense of a possibly useless future trial on the
merits. See Id.In the instant case, we find the denial of Indian Harbor' s motion for partial
summary judgment is not arguably incorrect. At issue in Creekstone is an
insurance contract that contained a forum selection clause, which contained a
choice of law provision. According to Creekstone, forum selection clauses in
contracts are enforceable, except in very limited circumstances. See Creekstone,
282 So. 3d at 1047- 48, citing Shelter Mut. Ins. Co. v. Rimkus Consulting Group,
Inc. of Louisiana, 2013- 1977 ( La. 711114), 148 So. 3d 871, 879- 82. While it is
plausible that the holding in Creekstone could ultimately apply to choice of law
clauses, the supreme court specifically declined to address La. R.S. 22: 868( A)( 1),
7
which prohibits choice of law clauses in insurance contracts.' Creekstone, 282
So. 3d at 1049, n. 7. Therefore, the question whether Creekstone would apply to
choice of law clauses remains unanswered.
Based on the present law and jurisprudence, we do not find that the trial
court was arguably incorrect in finding that Creekstone was irrelevant to the instant
case. In order to avoid piecemeal and potentially contradictory rulings by this
Court, the choice of law issue would be more appropriately addressed on appeal
after a trial on the merits. As such, pursuant to Herlitz, we deny Indian Harbor' s
application for supervisory writs.
APPEAL DISMISSED; WRIT DENIED,
I Specifically, La. R.S. 22: 868( A)( 1) states, in pertinent part:
A. No insurance contract delivered or issued for delivery in this state and
covering subjects located, resident, or to be performed in this state, or any
group health and accident policy insuring a resident of this state regardless of
where made or delivered, shall contain any condition, stipulation, or
agreement either:
1) Requiring it to be construed according to the laws of any other state or country
except as necessary to meet the requirements of the motor vehicle financial
responsibility laws of such other state or country.
8