Jack Brent Mccain, Plaintiff-appellant, v. Commercial Union Insurance Company and Hackberry Recreationdistrict, Defendants-appellees, 719 F.2d 1271 (5th Cir. 1983)

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US Court of Appeals for the Fifth Circuit - 719 F.2d 1271 (5th Cir. 1983) Nov. 21, 1983

Salter, Streete & Hale, Steven W. Hale, Lake Charles, La., for plaintiff-appellant.

Brame, Bergstedt & Brame, Frank M. Brame, James R. Morris, Lake Charles, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana; Earl E. Veron, Judge.

Before GEE, POLITZ and JOHNSON, Circuit Judges.

PER CURIAM:


This case was brought under the diversity jurisdiction of the federal courts. The issues which have been presented by the parties can be resolved only by the interpretation of a Louisiana statute and the determination of its interaction with the Louisiana Constitution. Resolution of these issues is properly left to the Louisiana Supreme Court. We certify these questions to that court.

Plaintiff Jack McCain was injured when he dove into a swimming pool and struck the bottom of the pool. Defendant Hackberry Recreation District, a local governmental body, owns the pool and, at the time of the accident, defendant Commercial Union Insurance Company was the liability insurer of the recreation district. The defendants moved for summary judgment based on LSA-R.S. 9:2795, which limits the tort liability of landowners who allow their land to be used for recreational purposes. The trial court granted summary judgment for the defendants, and McCain appealed.

McCain contends that LSA-R.S. 9:2795 cannot be applied to publicly owned pools, such as the Hackberry pool, without conflicting with Article 12, section 10 of the 1974 Louisiana Constitution, which abrogates sovereign immunity. Defendants maintain that there is no conflict; the statute does not shield the governmental body from liability, but rather, negates the plaintiff's cause of action. Both sides recognize that this suit is a case of first impression.

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT TO THE SUPREME COURT OF LOUISIANA

PURSUANT TO RULE XII, LOUISIANA SUPREME

COURT RULES.

TO THE SUPREME COURT OF LOUISIANA AND THE HONORABLE JUSTICES THEREOF:

The style of the case in which the certificate is made is Jack Brent McCain, Plaintiff-Appellant, versus Commercial Union Insurance Company and Hackberry Recreation District, Defendants-Appellees. Case No. 83-4176, United States Court of Appeals for the Fifth Circuit, on appeal from the United States District Court for the Western District of Louisiana.

II. QUESTIONS CERTIFIED TO THE SUPREME COURT OF LOUISIANA

The following questions of law are hereby certified to the Supreme Court of Louisiana for instructions based upon the facts recited herein:

1. Does LSA-R.S. 9:2795 alter the abrogation of sovereign immunity against tort actions articulated in Article 12, Section 10 of the 1974 Louisiana Constitution?

2. Can a "landowner's" liability insurer avail itself of the limitation of liability granted in LSA-R.S. 9:2795, or is that limitation of liability personal and therefore available only to the "landowner"?

3. Does LSA-R.S. 9:2795 apply to a publicly owned and operated swimming pool?This Court also certifies to the Louisiana Supreme Court that its answer to these questions will be determinative in this case, resolving all issues in contention between the parties on this pending appeal.

The record in this case, together with copies of the parties' briefs, are transmitted herewith.

QUESTIONS CERTIFIED.