Jessica C. Salley minor child of Fred E. and Cecily S. Salley VS Natalie W. Dupre, Ciara C. Welch and Safeway Insurance Company (2012CA2133 Consolidated With 2012CA2134)
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT NUMBER 2012 CA 2133 JESSICA C SALLEY ET AL VERSUS NATALIE W DUPUY ET AL AND MARKET INSURANCE COMPANIES consolidated with NUMBER 2012 CA 2134 NATALIE DUPRE ON BEHALF OF CIARA WELCH VERSUS FRED E SALLEY AND CECILY S SALLEY ON BEHALF OF JESSICA SALLEY AND GEICO Judgment Rendered SEP 2 6 2Q13 x Appealed from the Second Twenty Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket Number 2009 c 2009 12535 w 14365 Honorable Reginald T Badeaux Judge Fred E Salley Covington LA In proper person and as Counsel for Appellants Plaintiffs Cecily S Salley individually and on behalf of Jessica C Salley Dawn L Morris Lafayette Counsel for LA b a f Y Appellees Defendants c pyicwi L U S Natalie W Dupre on behalf of Ciara C Welch and Safeway Insurance Company ofLouisiana x BEFORE PARR GiIIDRY AND DRAKE JJ 2 GUIDRY J This appeal arises from an automobile accadent involving two students which occurred in the parking lot oi Covington Iigl School on May 1 2009 As each student maintained that th accident was due to the fault of the other two separate lawsuits were eventually filed On May 4 2009 Fred E Salley and Cecily S Salley the parents of 7essica C Salley filed suit individually and on behalf of their daughter for the property damage sustained to their vehicle and for the alleged emotional distress suffered by Jessica as a result of the accident The Salleys named Natalie Dupre on behalf of her daughter Ciara Welch and Ms s Dupre automobile liability insurer Safeway Insurance Company of Louisiana as defendants in that suit under docket number 2009 Conversely Ms Dupre 12535 filed suit on July 24 2009 on behalf of Ciara for the severe and disabling injuries that her daughter allegedly suffered as a result of the accident Ms Dupre named the Salleys on behalf of Jessica and their automobile liability insurer GEICO General Insurance Company as defendants in that suit under docket number 2009 The two suits were later consolidated by order of the trial 14365 court The Salleys subsequently filed a pleading entitled Compulsory Counter Claim on behalf of Fred E Salley et al wherein they asserted claims for exemplary damages both punitive and statutory plus attorney fees for defendant counter s Dupre blatant and intentional misrepresentations while exchanging data with counter i claimant e the Salleys at the incident scene as specifically required by Louisiana law giving counter and others a false name claimant address and insurance carrier to prevent delay or frustrate counter claimants claim against Dupre and Welch for Welch obvious fault s and callous disregard in speeding through a school parking lot and then running over counter stationary vehicle claimants 1 In their original petition the Salleys erroneously referred to Ms Dupre as Natalie Dupuy and named Market Insurance Companies as her automobile liability insurer The Salleys later filed an amended petition to change Market Insurance Companies to Safeway Insurance Company but did not correct the spelling of Ms Dupre name In later pleadings in the record s however the Salleys refer to Ms Dupre by the correct spelling of her name 3 In response to this pleading Ms Dupre and Safeway Insurance filed exceptions raising several objections including the objections of prescription no cause of action and no right of action Following a hearing the trial court sustained the peremptory exception on the basic of prescription vhich judgmenY the Salleys appeal herein DISCUSSION Initially it would appear that this matter is not properly before us as the judgment on appeal only dismisses the Salleys reconventional demand premised on fraud See La C art 1915 However prior to rendering the subject P B judgment the trial court had signed a Motion and Order of Final Dismissal Joint of all the claims raised by Ms Dupre on behalf of Ciara in docket number 2009 14365 Thus at the time the trial court rendered the present judgment at issue in this appeal there were no other matters left pending under docket number 2009 14365 although the consolidated suit filed by the Salleys under docket number 12535 2009 remains pending below The continued pendency of the separate but consolidated suit does not affect the finality and appealability of the judgment before us The consolidation of actions is a procedural convenience designed to avoid multiplicity of actions and does not cause a case to lose its status as a procedural entity In re Miller 95 p La App lst Cir 12 665 So 2d 774 1051 95 15 776 writ denied 96 La 2 667 So 2d 541 see La C art 1561 0166 96 9 P The filing of a pleading or motion in one of several consolidated cases does not z According to the Code of Civil Procedure incidentat demands are either reconvention cross claims intervention and demand against third parties See La C art 1031 Thus the P B Salleys pleading titled as a claim is more appropriately referred to as a reconventional counter demand 3 Appellate courts have the duty to examine subject matter jurisdiction sua sponte even when the parties do not raise the issue Barnett v Watkins 06 p 5 App lst Cir 9 970 2442 La 07 19 So 2d 1o28 writ denied o7 La 12 970 So 2d 537 1032 2066 07 14 4 procedurally affect ttie others Thu mere fact thai a ple a discovery response ciing or correspondence ears rhe suit ca of tih eackions does not ns bi lidated ns render the pleading or document ap tra al f the conso actions The licable iciaxed substance and purpose of such a p t cause uf action to which it relates ang dA the parties actually affected and ihe ani suit recc or records in which it anlar rd was filed must be aonsidered ta deterrn if ik applies to only one or moxe of the n consolidated actions Dendy v City Natior Ba 06 p 6 App lst a 2436 La Cir 10 977 So 2d 8 l 07 17 t Consolidation does not render the procedurai or substantive rights peculiar to one case applicable to a companion case nd it in no way enlarges ar decreases the rights of the litigants Despite an order of consolidation each case must stand on its own merits The consolidatian of actions does not merge the two cases uniess the records clearly reflect an intention to do soo Ricks v Kentwood Oil Co Inc 09 pp 4 La App lst Cir 2 3 So 3 63 3bf writ 0677 5 IO 23 i 67 denied 10 La 10 4S So 3d 11I2 1733 1S In the compulsory counter claim filed by tihe Salleys they refer to themselves as counter and expressfly aecognize thak they are counter plaintiffs cfaimants in 2 Upon iden fheir status as such the Sal 14365 Q9 ifyin evs incorporated by reference the c of their petir in docket riumber 2009 ortents on 12535 and then added tlaim for exernplary d botl punitive and eir mages statutory plus attorney fees Thus it is clear that the reconventional deniand filed by the Salleys was intended to apply solely ta the matter pendir ur docket g der number 2009 nd since the trial court previousiy dismissed wit rejudice 14365 all of the other claims and demands pending under docket num 2009 the er 14365 judgment before us qualities as a final judgment that is properiy appeaTable See La C art 1f341 P 5 Having th determined 1hat tIhe judgmen is properly appealable we will s now concider t iieirits of ihe S a zn vv tl basically assert that ie alleys peai ick ey the trial caurt erred ix disrn eir reconv a ss nt aliemand i We fnd the di fi Sa1 ras eie was roper missa ti y kAve nan rnai arti because na ri c action eXisE rth SaYl u t he cl wss in the lzt f r ucsu ira rted reconventional dern InfYia we s1 p oLl tl rv the tr court nd iy xXd u in a iile al found merit in the alternative objections crf no ause nd no right of a rai tion e by Ms Dupre and Safeway Insurance it fa to deiinitivelv decree su in its led h judgment F3owever as this couri can recognize and raise the l its own jectio on motion we do so herein See La C art 92 P 7 The peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judiciall enforcing the right asserted See a P I C art 927 Simply stated the flbjection csf no rig of action tests 6 A it whether this particular plaintiflF a a matter flaw has an inter ir the claim sued st on To prevail on a peremptory exceptia aciin the bjectiorF frio ri npl tof action the defendant nust shc tk the plaintiff dces not hav an anterest zn the v at subject matter of the suit or legafl ca Yo rc with the suit Whett acity eeed ra plaintiff has a righ af actzor iultimately s tiord aie e ef laiv therefore it is reviewed de nQVO or ap fUSA Inc v uintana roduetiari Com eal X 0047 11 p 12 La App lst Cia YO 79 So 3d 366 376 urit denied 12 11 19 0024 La 384 So 3d 536 12 2 In the proceedings below the Salleys alleged fhat they were seeking recovery of their damages attorxiey fees and otk defense costs as a result of the e alleged frttud cornmitted by NIs Dupre and Ciaxa Yet despite th alle ir ations that Cxar had rovF false information as a basis for tl ia and ded e itiatioxi maintenance of a lawsuit against the Salloys the Sal througla thzir insnrer eys GEICO General Insurance Com nonetheless compromised the suit fled by sany 6 Ms Dupre thereby settling the dispute or any buacertainTy conaerning that claim See La C art 307L In arguments beforre tk court the Salleys urge that they is should be allowed to pursue their clairr of fraud ciaiming that the settlement did not settle tkie question of Ciara firaud or liability fc the acc Mareover they s r ident asserted that the claim and subsequent settlement has caused them further harm in the form of increased insurance costs A cause of action does not exist in Louisiana for increased insurance costs Nikolaus v Citv of Baton Rouge of East Baton Rouge 09 pp 5 Parish 2090 6 La App lst Cir 6 40 So 3d 1244 writ not considered 10 10 11 1248 1638 a 8 I 10 46 So 3d 1256 Severn Place Associates v American Buildin 10 Services Inc OS pp 8 La App Sth Cir 4 859 9 1106 930 So 2d 125 129 Moreover due to the settlement negotiated with Is Dupre a diepute as to Ci s ra fault relative to the May 1 2009 accident no longer exists Thus for these reasons we find that the Salleys have no right of action to pursue their reconventional demand and therefore dismissal of the demand is proper CONCLUSION For the foregoing reasons we affirm the judgment of the trial court that dismissed the Salleys reconventional demand led under docket number 2009 14365 All costs of this appeal are cast to the appellants Fred and Cecily Salley AFFIRMED 7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
