2766 Front, L.L.C. VS Hans Bayer d/b/a Bayer Floors
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 1558 2766 FRONT LLC VERSUS HANS BAYER DBA BAYER FLOORS Judgment Rendered March 26 2010 Appealed from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Case No 2008 10133 The Honorable Reginald T Badeaux Judge Presiding Wayne J Jablonowski Slidell Louisiana Counsel for Defendant Appellant Hans Bayer dba Bayer Floors Peter B Sloss Counsel for Third Party Donald R Wing Appellee Defendant New Orleans Louisiana Country Mutual Insurance Company BEFORE DOWNING GAIDRY AND McCLENDON JJ fm M d O GAIDRY J This appeal is from a trial court judgment sustaining an exception of no cause of action and dismissing the defendant third party demand s without prejudice We amend the judgment and affirm the amended judgment FACTS AND PROCEDURAL HISTORY Plaintiff 2766 Front L filed suit against Hans Bayer for C fraudulent misrepresentation The basis for the plaintiff claims was that s when plaintiff contracted with Bayer to have Bayer perform floor installation services as a subcontractor for plaintiff Bayer represented to plaintiff that he possessed workers compensation insurance and based on this representation plaintiff agreed to pay Bayer an additional fifty cents per square foot for his installation services Plaintiff was later informed by the Louisiana Workers Compensation Commission LWCC that Bayer did not possess workers compensation insurance which was valid in Louisiana and plaintiff was forced to pay LWCC additional premiums to cover Bayer for the services he performed for plaintiff Although Bayer did possess workers compensation insurance La S 1161 R 23 provides that the State of Louisiana only recognizes workers compensation insurance issued by authorized companies Country Mutual Insurance Company Country Mutual the company from which Bayer obtained workers compensation insurance is not authorized in Louisiana Bayer filed a thirdparty demand against Country Mutual alleging that Country Mutual through its agents sent insurance certificates evidencing workers compensation insurance for Bayer to the plaintiff at its Louisiana address that Bayer relied on these certificates and believed that he was covered by them for work he performed in Louisiana that Bayer later 2 discovered that the workers compensation insurance was not valid in Louisiana and that Country Mutual is liable to Bayer for damages resulting from its faulty and negligent issuing an insurance certificate evidencing valid insurance to a company doing business in Louisiana and the reliance by Hans Bayer upon these certificates Country Mutual filed an exception of no cause of action which was sustained by the court because Bayer thirdparty demand does not allege s that Country Mutual made any misrepresentations to Bayer by virtue of providing a truthful certificate of insurance The trial court allowed Bayer thirty days to amend his third party demand to state a cause of action against Country Mutual failing which his thirdparty demand would be dismissed with prejudice Bayer amended his thirdparty demand to allege that Country Mutual knew and was in the best position to know that its policies were not valid in the State of Louisiana and because of its negligence in issuing a policy which it should have known was invalid in Louisiana Country Mutual breached its contract with Bayer and is therefore liable for any damages sustained by Bayer as a result Following this amendment Country Mutual re urged its exception of no cause of action on the grounds that Bayer thirdparty demand still failed s to state a valid cause of action against Country Mutual Although not in the petition Bayer attorney argued that Bayer told the insurance agent that he s needed insurance for a job in Slidell Louisiana the insurance company faxed certificates of insurance to the plaintiff in Louisiana and the insurance provided was not sufficient for the state of Louisiana resulting in damages to Bayer The trial court sustained Country Mutual exception of no cause s of action and dismissed Bayer third party demand without prejudice It is s 3 from this judgment that Bayer appeals arguing that the court erred in sustaining Country Mutual exception of no cause of action and in not s allowing Bayer to amend his thirdparty demand again to attempt to state a cause of action DISCUSSION The peremptory exception raising the objection of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition The purpose of the exception of no cause of action is to determine the sufficiency in law of the petition Richardson v Home Depot USA 00 0393 p 3 La 1 Cir 3 808 So 544 App 01 28 2d 546 Generally the exception of no cause of action is triable solely on the face of the petition and any annexed documents Woodland Ridge Association v Cangelosi 942604 p 3 La 1 Cir 10 671 So App 95 6 2d 508 510 For purposes of determining the issues raised by the exception the well pleaded facts in the petition must be accepted as true The court must determine if the law affords plaintiff a remedy under those facts Any doubts are to be resolved in favor of sufficiency of the petition The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in its behalf the petition states any valid cause of action for relief Stroscher v Stroscher 01 2769 p 3 La 1 App Cir 2 845 So 518 523 03 14 2d When the grounds of the exception of no cause of action may be removed by amendment of the petition the judgment sustaining the exception shall order such amendment within the delay allowed by the court If the grounds of the objection cannot be so removed or if plaintiff fails to comply with the order to amend the action shall be dismissed La C P 4 art 934 Clearly even if a petition fails to state a cause of action if the grounds of the objection can be removed by amendment the plaintiff should be allowed to amend his demand However where the grounds for the objection cannot be removed by amendment the trial court is not required to allow the pleadings to be amended Treasure Chest Casino L v Parish C ofJefferson 961010 pp 56 La 1 Cir 3691 So 751 755 App 97 27 2d writ denied 971066 La 6 695 So 2d 982 The decision whether to 97 13 allow amendment of the pleadings is within the sound discretion of the trial court Byers v Edmondson 97 0831 p 8 La 1 Cir 5 712 App 98 15 2d So 681 686 writ denied 98 1596 La 10 726 So 29 cert 98 9 2d denied 526 U 1005 119 S 1143 143 L210 1999 Prudential S Ct 2d Ed Insurance Company of America v CC F Baton Rouge Development Company 93 2074 p 13 La 1 Cir 10 So 1131 1139 App 647 94 2d 7 Bayer argues on appeal that he has stated a cause of action against Country Mutual because he informed Country Mutual agents that he was s doing flooring work in Louisiana and he needed insurance to cover that work but they did not provide appropriate insurance However these facts were not alleged in either the third party demand or the amended third party demand When Bayer alleged these facts at the hearing on the exception counsel for Country Mutual stated that would be great if the petition said that but it does not And we have to go by what is in the third party demand After a thorough review of the record we find that the trial court was correct in concluding that Bayer amended third party demand failed to s state a cause of action against Country Mutual However since it appears from the facts alleged at the hearing on the reurged exception that it would be possible to amend the petition to state a cause of action against Country Mutual the trial court should have allowed Bayer to amend his petition W rather than dismissing his third party demand Therefore we amend the trial court judgment to provide that Bayer has thirty days to amend his petition to attempt to state a cause of action against Country Mutual CONCLUSION The judgment of the trial court sustaining Country Mutual s exception of no cause of action and dismissing Bayer third party demand s without prejudice is amended to allow Bayer thirty days to amend his petition to state a cause of action against Country Mutual and as amended the judgment is affirmed Costs of this appeal are to be borne seventy percent by Hans Bayer and thirty percent by Country Mutual AMENDED AND AS AMENDED AFFIRMED 2
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