ELAINE DOUCET, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, NICOLE DOUCET, DWIGHT J. ADAMS, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, DANIELLE ADAMS, ANITA GAUTREAUX, INDIVIDUALLY AND ON BEHALF OF MINOR CHILD, AMANDA HATTY, VERNA JACKSON, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, VALERIE JACKSON, FREDA JACKSON AND FREEMAN JACKSON, SANDRA SMITH, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD MARZUITA HAYNES AND ON BEHALF OF OTHER MEMBERS OF THE CLASS ACTION VERSUS HUFFINE ROOFING AND CONSTRUCTION, INC.; THE JEFFERSON PARISH SCHOOL BOARD; LAKESHORE ROOFING & CONSTRUCTION COMPANY, INC.; PLATEO AND SILCIO, CHRISTIAN P. PLATEO, ARCHITECTS, A PROFESSIONAL CORPORATION AND WASHINGTON INTERNATIONAL INSURANCE COMPANY

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NOT DESIGNATED FOR PUBLICATION ELAINE DOUCET, ET AL NO. 01-CA-1088 VERSUS a eme T HUFFINE ROOFING ANDRŒD CONSTRUCTION, INC., ET A G 2 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 533-587, DIVISION "O" HONORABLE ROSS LADART, JUDGE FEBRUARY 26, 2002 THOMAS F. DALEY JUDGE Panel composed of Judges Edward A. Dufresne, Jr., Thomas F. Daley, and Walter E. Rothschild JAMES E. SHIELDS, SR. SHIELDS & SHIELDS, APLC 30 New England Court Gretna, Louisiana 70053 ATTORNEY FOR PLAINTIFFS/APPELLANTS LARRY G. CANADA RICHARD E. KING GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH 701 Poydras Street, Suite 4040 New Orleans, Louisiana 70139 ATTORNEYS FOR DEFENDANT/APPELLEE, CONTINENTAL CASUALTY COMPANY APPEAL DISMISSED The plaintiffs have filed this appeal seeking review of the trial court's denial of their Motion for Summary Judgment. For the reasons which follow, we dismiss this appeal. This matter stems from an action filed by students of L.W. Higgins High School, who were allegedly exposed to toxic fumes at the school for a period in excess of eight months. Plaintiffs sued, among others, an architectural firm, Plateo & Silcio, Christian P. Plateo, Architects, A Professional Corporation, and their insurer, Continental Casualty Insurance Company. The policy issued by Continental has a $250,000.00 policy limit. Plaintiffs reached an agreement to settle with Continental for the policy limits. However, the policy contains a defense cost shifting provision that provided that the expenses incurred in defending the claim would be deducted from the policy limit. Plaintiffs filed a Motion for Partial Summary Judgment claiming this defense cost shifting provision was against public policy and statutory law. Continental 2 opposed the motion contending the provision was not against public policy and must be enforced as written. The trial court orally denied plaintiffs motion on June 22, 2001. On August 13, 2001, plaintiffs filed a Motion and Order for Appeal. Recognizing that a written judgment was required for appeal, Continental submitted a written judgment, which was signed by the trial judge on August 20, 2001. In its appeal to this court, plaintiffs seem to acknowledge that the denial of a Motion for Summary Judgment may be reviewed by this court only under its supervisory jurisdiction and urge that this court consider this matter under its supervisory jurisdiction. We are unable to comply with plaintiffs request. Louisiana Code of Civil Procedure article 968 expressly states "An appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment." Appellate courts have consistently recognized that the proper procedural method for seeking review of the trial court's denial of a Motion for Summary Judgment is by supervisory writ. Furlough v. Union Pacific R.R. Co., 33,658 (La. App. 2 Cir. 8/31/00), 766 So.2d 751, rehearing denied, writ denied 2000-2929 (la. 1/12/01), 781 So.2d 556. There have been rare cases in which an appellate court has agreed to exercise its supervisory jurisdiction over the district court when an appeal has been filed because the trial court's ruling was arguably incorrect and a reversal would terminate the litigation. See Charlet v. Legislature of State of La., 97-0212 (La. App. 1 Cir. 6/29/98), 713 So.2d 1199. In such instances, the appeal has in effect been converted to a supervisory writ. However, in the case before us, we see no error warranting us to exercise supervisory jurisdiction over this matter. For the foregoing reasons, this appeal is dismissed. APPEAL DISMISSED 3 EDWARD A. DUFRESNE, JR. CHIEF JUDGE SOL GOTHARD JAMES L. CANNELLA THOMAS F. DALEY MARION F. EDWARDS SUSAN M. CHEHARDY CLARENCE E. McMANUS WALTER J. ROTHSCHILD PETER J. FITZGERALD, JR. Glourt of Appeal CLERK OF COURT GENEVIEVE L. VERRETTE CHIEF DEPUTY CLERK FIFTH CIRCUIT STATE OF LOUISIANA GLYN RAE WAGUESPACK FIRST DEPUTY CLERK 101 DERBIGNY STREET (70053) JERROLD B. PETERSON POST OFFICE BOX 489 JUDGES DIRECTOR OF CENTRAL STAFF GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX CERTIFICATE I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED OR DELIVERED THIS DAY FEBRUARY 26, 2002 TO ALL COUNSEL OF RECORD AND TO ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: PE E C Mr. James E. Shields, Jr Attorney at Law (En, 30 New England Court a ge Gretna, LA 70053 ERA CO R. ' Mr. Larry G. Canada Attorney at Law Suite 4040 701 Poydras St., New Orleans, LA 70139 (EE s ment Reequ e Sent To

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