Bieller v. Atlantic Specialty Insurance Company

Filing 40

ORDER AND REASONS: IT IS ORDERED that the 37 motion is GRANTED IN PART. This Court's earlier 34 Order will be amended to include a subsequent history citation and explanatory footnote. The motion is DENIED IN PART insofar as it requests that this Court reverse its earlier Order or permit an interlocutory appeal. Signed by Judge Ivan L.R. Lemelle on 2/7/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ADRIANNE L. BIELLER

CIVIL ACTION

VERSUS

NO. 16-512

ATLANTIC SPECIALTY INSURANCE
COMPANY

SECTION “B”(4)

ORDER AND REASONS
Considering Defendant’s “Motion to Alter or Amend Order and
Reasons on Motion for Summary Judgment Pursuant to Fed. R. Civ.
Proc. 59(e) or, in the Alternative, Motion for Certification and
Motion to Stay Pursuant to 28 U.S.C. § 1292(b)” (Rec. Doc. 37),
IT IS ORDERED that the motion is GRANTED IN PART. This Court’s
earlier

Order

(Rec.

Doc.

34)

will

be

amended

to

include

a

subsequent history citation and explanatory footnote. The motion
is DENIED IN PART insofar as it requests that this Court reverse
its earlier Order or permit an interlocutory appeal.
On January 10, 2017, this Court issued an Order and Reasons
denying Defendant’s motion for summary judgment. Rec. Doc. 34. In
that Order, we discussed Liberty Mutual Insurance Company v. Grant
Parish Sheriff’s Department, 350 So. 2d 236 (La. App. 3 Cir. Aug.
30, 1977) in an attempt to better understand the rationale for
existing Louisiana law that provides the sheriff, not his or her
department, with the procedural capacity to sue or be sued. Id. at
11-13. Defendant now moves for an order amending our earlier Order
and granting its motion for summary judgment, because Liberty
1

Mutual was subsequently overruled. Rec. Doc. 37-1 at 3-41 (citing
Jenkins v. Jefferson Par. Sheriff’s Office, 402 So. 2d 669, 671
(La. 1981)). However, the fact that Liberty Mutual’s holding was
overruled has no impact on this Court’s earlier Order.
In discussing Liberty Mutual we were considering the earliest
case that we could find explaining why a sheriff, not his or her
department, may sue or be sued. Rec. Doc. 34 at 11.2 The Louisiana
Third Circuit’s holding, that a current sheriff could not be held
liable for the negligent acts that occurred under a former sheriff,
was irrelevant. It was merely the court’s finding that a sheriff’s
department could not be sued, and the rationale for that finding,
that we considered. Notably, Liberty Mutual continues to be cited
as one of the earliest cases, if not the earliest case, recognizing
this rule. See, e.g. Green v. New Orleans Police Dep’t, No. 121992, 2013 WL 5739076, at *3 and n.6 (E.D. La. Oct. 22, 2013)
(recognizing that Louisiana does not provide any law enforcement
office or department with the legal status necessary to be sued
and that Jenkins only overruled Liberty Mutual insofar as the Third
Circuit held that a present sheriff could not be liable for the
negligent acts committed under a former sheriff); Webster v. City

Note, Defendant’s memorandum in support of its motion was not numbered
correctly. See Rec. Doc. 37-1. We will cite to the page number of the record
document, rather than the page number included by Defendant.
2 In fact, we explicitly stated that the case merely “provide[d] some insight
into the manner in which Louisiana courts and the Louisiana legislature views
sheriff’s offices.” Rec. Doc. 34 at 13.
1

2

of Ferriday, No. 16-575, 2016 WL 7041716, at *1 (W.D. La. Sept.
27, 2016); Lemon v. Kenner Police Dep’t, No. 16-6631, 2016 WL
3950771, at *5 (E.D. La. July 1, 2016) (Magistrate Judge’s report
and

recommendation);

Barron

v.

Hilton,

No.

14-2754,

2015

WL

1198111, at *2 (W.D. La. March 10, 2015); Ashy v. Migues, 99-1502,
p. 3 (La. App. 3 Cir. 4/5/00); 760 So. 2d 440, 443 (recognizing
that the “Sheriff, not the ‘Parish Sheriff’s Office,’ is the
constitutionally designated chief law enforcement officer of the
parish”).
We denied Defendant’s motion for summary judgment because (1)
Louisiana law gives the sheriff, not his or her department, the
procedural capacity to sue and be sued; (2) Louisiana statutes
provide that the sheriff, not his or her department, may contract
for insurance; (3) unlike the type of entity at issue in Terrell
v. Fontenot, 11-1472 (La. App. 4 Cir. 6/27/12); 96 So. 3d 658,
which cannot act on its own behalf, a sheriff can; (4) the goal in
creating a corporation or other business organization is to create
a separate legal entity, while the goal in electing a sheriff is
to provide an individual person with authority in a particular
jurisdiction;

(5)

the

holding

in

Holloway

v.

Shelter

Mutual

Insurance Company, 03-896 (La. App. 3 Cir. 12/10/03); 861 So. 2d
763, providing that if an individual person wishes to confer
authority to sign a UM waiver, he or she must do so in writing;
and (6) a rejection of UM coverage must be clear and unmistakable.
3

Defendant’s instant motion to amend our earlier Order has not
convinced us to rule otherwise.
Nonetheless, our earlier Order will be amended to add a
subsequent history citation and a footnote to make it clear that
we are, and were, aware of both Jenkins and Riley v. Evangeline
Parish Sheriff’s Office, 94-202 (La. 4/4/1994); 637 So. 2d 395,
395.3
New Orleans, Louisiana, this 7th day of February, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
It is not clear from Defendant’s motion, but to the extent that Defendant
believes this Court read Liberty Mutual in a way, and was persuaded by such
reading, that the sheriff is held personally liable, it is mistaken. Whether or
not a sheriff is held liable in his or her personal or official capacity is
irrelevant to our ruling. What matters is that it is the individual sheriff,
not his or her department, who has the procedural capacity to sue or be sued
and that it is the sheriff who must sign a UM waiver or confer authority to do
so in writing. When we stated that “in light of Liberty Mutual . . . (providing
that it is the individual sheriff who is held liable),” (Rec. Doc. 34 at 19) we
were referring to the fact that the sheriff, an individual person and not his
or her department, must sue or be sued. We were not suggesting that the sheriff
is held personally liable. Indeed, the sentence continues, in the same clause,
“in light of Liberty Mutual . . . and its progeny (recognizing that a sheriff,
not his or her office, has the procedural capacity to sue or be sued) . . . .”
Rec. Doc. 34 at 19 (emphasis added). Defendant appears to have misunderstood
this Court’s ruling, citing several cases in which courts have found that a
sheriff is not personally liable. Rec. Doc. 37-1 at 8 (citing Jenkins, 402 So.
2d at 671; Riley, 637 So. 2d at 395; Salvagio, No. 13-5182, 2013 WL 6623921, at
*2 (E.D. La. Dec. 16, 2013); Jones v. St. Tammany Par. Jail, 4 F. Supp. 2d 606,
614 (E.D. La. 1998)). In fact, the cases cited and quotations used by Defendant
only support our earlier finding, because they each refer to the potential
liability of the sheriff, not his or her department. Jenkins, 402 So. 2d at 671
(“the sheriff is the appropriate governmental entity on which to place
responsibility . . . .”); Riley, 637 So. 2d at 395 (“We amend the judgment to
permit its enforcement against the present sheriff in his official capacity”);
Salvagio, 2013 WL 6623921, at *2 (“sheriff in his official capacity is the
appropriate governmental entity on which to place responsibility”); Jones, 4 F.
Supp. 2d at 614 (“The Sheriff in his official capacity is the appropriate
governmental entity responsible for any constitutional violations committed by
his office”). Nevertheless, to avoid any confusion, we will omit the
parenthetical that concerns Defendant.
3

4