Edgar J. Duhon, III and Cyd Marie Duhon, Individually and On Behalf of His Minor Children Tyler Duhon and Kayla Duhon VS United Pacific Insurance Company, R & B Falcon Drilling USA, Inc. and Curtis Bailey
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0836 DUHON III CYD MARIE DUHON AND ON BEHALF OF EDGAR J HON AND KAYLA DUHON HIS MINOR CHILDREN UNITED PACIFIC INSURANCE COMPANY R B FALCON DRILLING USA INC AND CURTIS BAILEY On Appeal from the 16th Judicial District Court Parish of St Mary Louisiana Docket No 107 803 Division Honorable Charles l Porter E James Houma Judge Presiding Attorney Jr for Plaintiffs Gaidry LA Appellants Edgar Michael E Parker Allen Duhon III et al for Defendant Appellee Louisiana Insurance Guaranty Assoc LA BEFORE J Attorney Gooch Lafayette G PARRO KUHN AND DOWNING JJ Judgment rendered December 21 2007 J PARRO The plaintiff appeals Louisiana Insurance the insurance For the summary judgment that dismissed his claims against the LIGA Guaranty Association of policy following a based insolvent insurer had an reasons we reverse finding on a net worth in a that the holder of of 25 million III excess Duhon and remand Facts and Procedural History operating his vehicle While resident of Louisiana and owned Bailey Bailey was one s July 10 2000 an R B Falcon vehicle with R B 1 R B had Edgar accident with permission and was J Duhon USA was Inc R B therefore not in the Reliance placed Duhon settled his claims LIGA filed a in Company affiliates liquidation and LIGA motion for summary Duhon filed suit against LIGA were to covered claim exceeds s claim interpret LSA a Following substituted Duhon RS a as a October 3 defendant judgment policy was was granted claim for coverage f as LIGA net 22 1379 3 worth in s court motion excess and Duhon appealed contending the trial 22 1379 3 on 5 R hearing excluded under LSA insured under the United Pacific dismissed only f was LIGA S motion for summary 25 million by failing an was on against judgment urging the applicability of the 5 R 22 1379 3 the trial court found that Duhon B also and scope of against all defendants except Bailey and LIGA worth exclusion under LSA because R omnibus liability insurance with United Pacific Insurance of the Reliance Insurance was Although an course multiple defendants including Bailey and United Pacific Subsequently 2001 a by Curtis Bailey vehicle driven a Drilling policy of liability insurance he Bs employment for Company involved in by his employer driving R B insured under R his was on s f of claims legally erred excluding from the definition of by each individual insured whose net worth 25 million Discussion For purposes of the Insurance Guaranty Association Law a covered means 1 Under these facts it appears R B had no vicarious liability 2 as a result of any negligence by Bailey claim unpaid claim including one for unearned premiums by or against the insured or agent which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Part applies issued by an insurer if such insurer becomes an insolvent insurer after September 1 1970 and an i The claimant the insured event The ii or insured is a resident of this state at the time of or property from which the claim arises is permanently located in this state LSA R S 22 1379 3 types of claims is LSA are In a excluded from the term 5 R 22 1379 3 f of this section through covered claim Of certain importance in this case f which currently provides Covered f subparagraphs 3 b claim shall not include any claim asserted for by any insured whose net worth coverage under a policy held2 exceeds twenty five million dollars on December thirty first of the year immediately preceding the date of the determination of the insolvency of the insurer However deemed to include the an aggregate subsidiaries and affiliates affiliate as s net worth such on date shall net worth of the insured and all calculated on An consolidated basis a is under common control with Control the insured be of its of the insured includes any person or entity who directly through one or more intermediaries controls or is controlled indirectly or insured means or by the possession direct or indirect of the power to direct or cause the direction of the management and policies of the controlled person or entity whether through the ownership of voting securities by contract or otherwise The consolidated net worth of the insured and all subsidiaries and affiliates shall be calculated market values The failure or refusal of a the basis of their fair on person or entity requests rebuttable presumption that the noncompliant person the year to return a net therefor shall create worth affidavit to the association after two worth in of its a entity had a net December thirty first of or of twenty five million dollars immediately preceding the date of the determination of the excess on An insured for the purposes of this provision shall not include any state or local governmental agency or subdivision thereof Emphasis and footnote added insolvency of the insurer However prior to its revision by 2004 La No Acts 109 91 LSA 5 R 22 1379 3 f provided shall not include any claim by any insured whose net worth exceeds twenty five million dollars on December thirty first of the year immediately preceding the date of the determination of f the Covered claim insolvency of the insurer However date shall be deemed to include the 2 insured aggregate and all of its subsidiaries and affiliates basis an as An insured for the purposes of this s net worth on such net worth of the insured calculated provision on a consolidated shall not include any we note that the language our discussion asserted for coverage under a policy held 1 We conclude this particular added by a 2004 amendment See 2004 La Acts No 109 amendment constitutes a substantive change in this provision and cannot be given retroactive effect For purposes of was See LSA C C art 6 3 state local or governmental agency or subdivision thereof Emphasis added The applicable law governing claims against LIGA is the law insolvency Hopkins insurer s 999 1002 n 3 writ denied L10yds Ins Co this 94 2979 is that the claim insolvent an insure 6 23 06 La La 9 15 95 La 930 So 2d 984 against LIGA does not at 1002 n of the In this owner 5 R 22 1379 3 a claim f is inapplicable 5 R was 22 1379 3 an The insolvent a Dixie reason for f the claim a by any insured Accordingly the we in 2001 covered claim for must be one claim omnibus insured under the against the 4 policy Since statutory exclusion found in LSA conclude that the trial court Duhon claim was declared To not be case apparently applying the current version of LSA against LIGA reh g v until the insurer is declared accrue erred in s Prejean see it is the victim Duhon who filed case of the vehicle and this suit does not involve on 930 So 2d 3 applicable version of LSA insured App 4th Cir 4 5 06 660 So 2d 836 837 the pre 2004 version governs in this purposes of the by 05 0732 parties do not dispute that Reliance Therefore filed 06 1047 Hopkins 930 So 2d The Howard v in effect on the date of the 5 R 22 1379 3 f legally to find that excluded Decree For the foregoing reasons matter is remanded for further 1 012 64 are assessed the judgment of the trial proceedings Costs of this court is reversed This appeal in the amount of against Louisiana Insurance Guaranty Association REVERSED AND REMANDED 3 See LSA R S 4 We note that LSA pertinent part 22 655 as 5 R 22 1376 sets forth the purpose of the Insurance Guaranty Association Law in follows The purpose of this Part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants Emphasis or policyholders because of the added 4 insolvency of an insurer
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