Team Contractors, L.L.C. et al v. Waypoint NOLA, L.L.C. et al

Filing 323

ORDER denying 321 Motion to Amend/Correct 320 Order and Reasons granting 307 Motion Addressing Waypoint's Rights to Pursue Statutory Penalties Under LA. R.S. 22:1973. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TEAM CONTRACTORS, L.L.C.,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-1131

WAYPOINT NOLA, L.L.C., ET AL.,
Defendants

SECTION: “E”(2)

ORDER
Before the Court is Defendant Waypoint NOLA, L.L.C.’s (“Waypoint”) motion to
amend the Court’s December 5, 2017 Order and Reasons to include a statement allowing
interlocutory review. 1 The motion is opposed. 2 For the reasons to follow, the motion is
DENIED.
On February 5, 2016, Plaintiff Team Contractors, L.L.C. filed a complaint against
Defendants HC Architecture, Inc., KLG, L.L.C., and Waypoint NOLA, L.L.C. 3 Catlin
Insurance Company, Inc. (“Catlin”) was subsequently named as a third party defendant
by Waypoint. 4 On December 5, 2017, the Court dismissed Waypoint’s claim against Catlin
on the grounds that Louisiana Revised Statute 22:1973(B)(5) did not allow recovery for
third-party claimants. 5 Waypoint was not insured by the insurance policy in question, but
rather asserted a claim as a third party. 6 The Court determined that as the plain language
of the statute limited recover to “any person insured by a contract,” Waypoint was unable
to assert a claim under La. R.S. 22:1973(B)(5).7 The Court therefore dismissed Waypoint’s
third party claim against Catlin.

R. Doc. 321.
R. Doc. 322.
3 R. Doc. 1.
4 R. Doc. 14.
5 R. Doc. 320.
6 See R. Doc. 320 at 3-7.
7 See LA. REV. STAT. ANN. § 22:1973 (2012).
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In this motion, Waypoint seeks amendment of the Order and Reasons to allow for
interlocutory review of the order pursuant to 28 U.S.C. § 1292(b).8 28 U.S.C. § 1292(b)
allows a party to request appellate review of a district court’s order or judgment during
litigation rather than wait until the end of the case on appeal. 9 Interlocutory review is
allowed if: (1) the order or judgment involves a controlling question of law; (2) substantial
ground for difference of opinion on the question of law exists; and (3) immediate appeal
from the order or judgment may materially advance the ultimate termination of the
litigation. 10 The moving party bears the burden of establishing that interlocutory appeal
is appropriate. 11 It is within the Court’s discretion to certify an order for interlocutory
appeal under Section 1292(b). 12 Interlocutory appeals are “exceptional” and should not
be granted “‘simply to determine the correctness’ of a ruling.” 13
Waypoint attempts to create an unsettled question of law by distinguishing the
present matter from Langsford v. Flattman, the most recent Louisiana Supreme Court
case interpreting the La. R.S. §22:1973. 14 In Langsford, the Louisiana Supreme Court
ruled that sub-section (B)(5) of that provision did not permit a claim by a third party
injured in automobile accident against the other driver’s insurance company. 15 Waypoint

28 U.S.C. § 1292(b).
Id.
10 Id.
11 U.S. ex rel. Branch Consultants, L.L.C. v. Allstate Ins. Co., 668 F. Supp. 2d 780, 813 (E.D. La. 2009).
12 Waste Mgmt. of Louisiana, L.L.C. v. Parish, No. 13-6764, 2014 WL 5393362, at *3 (E.D. La. Oct. 22,
2014) (“This Court has the discretion to certify its Order and Reasons for interlocutory appeal under 28
U.S.C. § 1292(b).”); In re Chinese Manufactured Drywall Products Liab. Litig., No. 09-4115, 2012 WL
4928869, at *7 (E.D. La. Oct. 16, 2012) (same); Copelco Capital, Inc. v. Gautreaux, No. CIV. A. 99-850,
1999 WL 729248, at *1 (E.D. La. Sept. 16, 1999) (“The trial judge has substantial discretion in deciding
whether or not to certify questions for interlocutory appeal.”); Swint v. Chambers Cnty. Comm’n, 514 U.S.
35, 47 (1995) (“Congress thus chose to confer on district courts first line discretion to allow interlocutory
appeals.”).
13 Gulf Coast Facilities Mgmt., LLC v. BG LNG Servs., LLC, 730 F. Supp. 2d 552, 565 (E.D. La. 2010)
(quoting Clark–Dietz & Associates–Engineers, Inc. v. Basic Constr. Co., 702 F.2d 67, 67–69 (5th Cir.
1983)).
14 Langsford v. Flattman, 2003-0189 (La. 1/21/04); 864 So. 2d 149.
15 Langsford, 864 So. at 151.
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argues that Langsford is limited to automobile accident cases, and thus Louisiana law has
left open a class of third party beneficiaries—including professional liability third-party
claimants—that may bring claims under sub-section 1973(B)(5). 16
The Court finds, however, that no “substantial ground for difference of opinion on
the question of law exists” as to the December 5, 2017 Order and Reasons. 17 As explained
by the Court, the plain language of the provision indicates that relief is only available to
“any person insured by a contract.” 18 Third parties are, by definition, not insured by the
insurance policy. Louisiana state courts overwhelmingly confirm this interpretation. 19
Moreover, the Court is not persuaded that the Louisiana Supreme Court’s holding in
Langsford is restricted to automobile insurance cases. The Louisiana Supreme Court in
no way limits its interpretation of La. R.S. §22:1973 to automobile cases. To the contrary,
the court cautions that the statute “must be strictly construed in favor of a limited
expansion of third party rights rather than a drastic expansion of such rights.” 20
Accordingly;
IT IS ORDERED that Waypoint NOLA, L.L.C.’s motion to amend is DENIED.
New Orleans, Louisiana, this 25th day of January, 2018.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 316 at 8.
Id.
18 LA. REV. STAT. ANN. § 22:1973(B)(5).
19 See Toerner v. Henry, 2000-2934 (La. App. 1 Cir. 2/15/02); 812 So.2d 755, 758 ; Woodruff v. State Farm
Ins. Co., 1999-2818 (La. App. 4 Cir. 6/14/00); 767 So.2d 785, 788; Celestine v. State Farm Mut. Auto. Ins.
Co., 98-578 (La. App. 3 Cir. 12/30/98); 735 So.2d 1, 4; Venible v. First Financial Ins. Co., 97-2495 (La. App.
4 Cir. 8/26/98); 718 So.2d 586, 588–89; Smith v. Midland Risk Ins. Co., 29-793 (La. App. 2 Cir. 9/24/97);
So.2d 1192, 1197. See also Pontchartrain Gardens, Inc. v. State Farm Gen. Ins. Co., 2009 WL 86671, at *6–
7 (E.D.La. Jan. 13, 2009) (Vance, C.J.).
20 Langsford, 864 So. at 151.
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