Dulaney v. Travelers Insurance Co.

WATKINS, Judge.

Plaintiff, Robert R. Dulaney, filed this suit to recover damages for an alleged slip and fall on the premises of Cavalier and Son’s Supermarket, Inc., the accident having allegedly resulted from the defective condition of the supermarket resulting from mud dug up in excavation undertaken by Houma Oil Company, Inc. Named sole defendants in the suit were The Travelers Insurance Company, the insurer of the supermarket and/or its lessors, and National Union Fire Insurance Company, insurer of Houma Oil. Subsequently, National Union third partied Cavalier and Son’s Supermarket, Inc., Franklin Cavalier, and Travelers. Travelers thereupon third partied Kajun Maintenance, Inc., which had allegedly installed a gas tank on the supermarket premises. Plaintiff then filed an amended petition, naming Kajun and Franklin Cavalier as additional parties defendant.

After trial on the merits, plaintiff’s suit was dismissed, at plaintiff’s cost. It was unnecessary for the trial court to make a determination on the third party demands as the bases of these demands were, respectively, solidary liability or indemnity or both. From this judgment, plaintiff appealed.

In his brief on appeal, plaintiff specifies as errors the trial court’s failure to hold Franklin Cavalier, Cavalier and Son’s Supermarket, Inc., and Travelers liable to plaintiff. No mention is made of plaintiff’s claims against National Union and Kajun.

National Union, Houma Oil, and Kajun have filed the present motion to dismiss the appeal against them. Plaintiff filed a response stating he had no objection to the dismissal of these parties. We deny the motion to dismiss these parties, nevertheless. The motion and plaintiff’s response are tantamount to a joint motion to dismiss, which, under our Rule 2-8.3 must be made by all interested parties, and must be supported by appropriate affidavits, which are lacking in the pleading before us. Furthermore, Kajun is a third party defendant in the third party demand of Travelers, which would remain a party defendant even if the partial motion to dismiss the appeal were granted.

For all these reasons, and our opposition to piecemeal dismissals in cases involving multiple incidental demands, the motion to dismiss is denied.

MOTION TO DISMISS DENIED.