HENRY KINNEY v. THE ACCELERATE LOUISIANA INITIATIVE INC (2025)

Henry W. Kinney appeals a judgment sustaining an exception of lack of subject matter jurisdiction in favor of The Accelerate Louisiana Initiative, Inc. (Accelerate) and dismissing his suit against Accelerate without prejudice. After the appeal was lodged, Accelerate filed a motion to dismiss the appeal as moot. Upon review, we grant the motion and dismiss the appeal.

FACTUAL AND PROCEDURAL HISTORY

On December 4, 2023, Mr. Kinney filed a “Class Action Complaint for Injunctive Relief,”¹ on his own behalf and on behalf of 92,000 members of Louisiana Health & Indemnity of Louisiana d/b/a Blue Cross Blue Shield of America (BCBSLA), naming Accelerate as the defendant. Mr. Kinney sought to enjoin Accelerate from “taking any additional steps” to take his property or the property of the class he sought to represent and from interfering with his and the purported class's BCBSLA health insurance. Notably, Mr. Kinney did not name BCBSLA as a defendant.

In his petition, Mr. Kinney alleged that BCBSLA is owned and controlled by its members who live across Louisiana. He also alleged that, in 2022, BCBSLA's Board of Directors and Accelerate embarked on a scheme to demutualize BCBSLA from a nonprofit mutual insurance organization into a for-profit entity, which would be owned by a third party, Elevance Health, Inc. (Elevance). He alleged the money from the sale of the BCBSLA assets under the demutualization plan would not be provided to the rightful members of BCBSLA. Rather, according to Mr. Kinney, 91% of the sales price and excess cash owned by BCBSLA would be paid to Accelerate, and only 9% would go to the BCBSLA membership. He also sought a declaratory judgment that Accelerate's actions were harmful to him and to the purported class, “since Accelerate will illegally terminate the present health insurance coverage and will illegally take [his] and the [class's] property without divulging the true value of the members’ ownership and the true effect [of] selling BCBSLA to Elevance[.]” Lastly, Mr. Kinney sought certification of the class.

Thereafter, Accelerate filed numerous exceptions, including a peremptory exception of lack of subject matter jurisdiction.² Mr. Kinney opposed Accelerate's exception and filed multiple motions.

The trial court held a hearing on Accelerate's exception of lack of subject matter jurisdiction on January 9, 2024. At the hearing, Accelerate tendered a copy of the “Plan of Reorganization Regarding the Conversion From a Mutual Insurance Company to a Stock Insurance Company” (Plan of Reorganization), which BCBSLA's Board of Directors approved on January 23, 2023, and which was submitted for approval to the Louisiana Commissioner of Insurance, pursuant to La. R.S. 22:72 and 22:236, et seq. 3 At the end of the hearing, the trial court took the matter under advisement. On January 31, 2024, the trial court signed a judgment sustaining Accelerate's exception of lack of subject matter jurisdiction and dismissing Mr. Kinney's petition without prejudice.

Mr. Kinney appeals, contending the trial court erred: (1) in failing to grant his Motion for Immediate Discovery Relief; (2) by not requiring Accelerate to provide evidence at the hearing on the exception of lack of subject matter jurisdiction; (3) in sustaining the exception of lack of subject matter jurisdiction; and (4) in failing to grant his Motion to Introduce Post Hearing Evidence.

MOTION TO DISMISS THE APPEAL AS MOOT

After the record was lodged with this Court, Accelerate filed a motion to dismiss Mr. Kinney's appeal as moot. Accelerate contends that Mr. Kinney's suit challenges the proposed demutualization of BCBSLA pursuant to the Plan of Reorganization submitted to the Louisiana Commissioner of Insurance. Accelerate also represents that, on February 14, 2024, BCBSLA withdrew the Plan of Reorganization from consideration by the Commissioner of Insurance and dismissed the administrative proceeding seeking approval of that Plan of Reorganization. According to Accelerate, because all plans for the demutualization, conversion, and post-conversion sale of BCBSLA stock have been withdrawn, there is no active dispute left to adjudicate. Accelerate further argues that, even if this Court were to reverse the trial court's judgment on the exception, there would be no active dispute left to adjudicate because the transactions Mr. Kinney's suit seeks to enjoin “will not happen.”

In opposition, Mr. Kinney concedes that BCBSLA has withdrawn its proposed demutualization plan.⁴ He contends, however, that his suit does not seek to enjoin the Plan of Reorganization; rather, he contends it seeks to enjoin illegal actions of Accelerate because Accelerate is acting to take his property. He further maintains the matter is not moot, claiming that Accelerate has not denied attempting to take his property nor has it promised it would not do so in the future.

An issue is moot when a judgment or decree on that issue has been deprived of practical significance or made abstract or purely academic. Plaquemines Port, Harbor & Terminal District v. Department of Transportation and Development, 2024-0099 (La. App. 1 Cir. 9/20/24), 405 So.3d 695, 700. Thus, a suit is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Id.; Stevens v. St. Tammany Parish Government, 2016-0197 (La. App. 1 Cir. 1/18/17), 212 So.3d 562, 566-67. If a suit is moot, there is no subject matter upon which the judgment of the court can operate; that is, jurisdiction, once established, may abate if the suit becomes moot. Plaquemines Port, Harbor & Terminal District, 405 So.3d at 700. The controversy at issue in a suit must normally exist at every stage of the suit, including the appellate stage. Id.

Although this Court is generally precluded from admitting new evidence, in some circumstances, when we consider a motion to dismiss an appeal based on mootness, we may consider evidence of undisputed facts that occurred after the judgment on appeal was rendered.⁵ For example, in K Construction, Inc v. City of Slidell, 2020-0198 (La. App. 1 Cir. 11/6/20), 315 So.3d 292, 295, this Court granted a motion to dismiss an appeal of the denial of an injunction as moot based on affidavits attached to the appellee's motion, which showed the appellee executed a contract with another company after the appeal was taken. Similarly, in Stevens, 212 So.3d at 567, this Court granted a motion to dismiss an appeal of a denial of an injunction as moot based on an affidavit attached to the appellee's motion showing the road widening project at issue was completed during the pendency of the appeal. And, in Vidrine v. American Emp. Ins. Co., 129 So.2d 284, 286 (La. App. 3 Cir. 1961), the Third Circuit denied an appellee's motion to dismiss an appeal based on undisputed post-judgment facts established by evidence attached to appellant's answer to the appeal. Contrast Pierce v. Board of Sup'rs of Louisiana State University, 392 So.2d 460, 464 (La. App. 1 Cir. 1979) (on rehearing) (declining to take judicial notice of employer's documents because they contained disputed facts occurring after appeal was taken regarding employee's employment status).

Further, this Court may take judicial notice of a fact that is not subject to reasonable dispute, including a fact that is capable of accurate and ready determination by resort to a source whose accuracy cannot reasonably be questioned. See La. C.E. art. 201(B). Hence, an appellate court may take judicial notice of certain facts from governmental websites. See VII Peaks Co-Optivist Income BDC, II, Inc. v. Ansgar Media, L.L.C., 2024-1010 (La. App. 1 Cir. 4/11/25), 410 So.3d 448, 450 (taking judicial notice of Louisiana Secretary of State's “Elected Officials” database, which indicates the state district court division over which a particular judge presides); Rise St. James v. La. Department of Environmental Quality, 2023-0578 (La. App. 1 Cir. 1/19/24), 383 So.3d 956, 963, n.4, writs denied, 2024-00354, 2024-00355, 2024-00351 (La. 9/4/24), 391 So.3d 1051, 1052, 1060 (taking judicial notice of the U.S. Environmental Protection Agency's definition of “environmental justice” as defined on the agency's website); Labranche v. Landry, 2022-0461 (La. App. 1 Cir. 12/15/22), 357 So.3d 395, 399, n.3 (taking judicial notice of article posted by U.S. Office of Public Affairs on its official website).

Relevant herein, the Louisiana Department of Insurance (LDI) website contains a tab titled “News Releases.” See https://www.ldi.state.la.us/news/press-releases. Under the “News Releases” tab is a February 14, 2024 News Release titled, “Commissioner Tim Temple Releases Statement on Withdrawal of BCBSLA Transaction and Cancellation of Today's Hearing” wherein Commissioner Temple confirmed that, as of that same date, BCBSLA had withdrawn its Plan of Reorganization, and LDI had canceled the hearing originally scheduled to consider the plan.⁶ See https://ldi.la.gov/news/press-releases/2/14/24-commissioner-temple-releases-statement-of-withdrawal-of-bcbsla-transaction. In the LDI News Release, Commissioner Temple pertinently stated:

Over the past year, [LDI] staff have worked with BCBSLA and Elevance and listened to the concerns of ratepayers, providers, policymakers and physicians․

We had planned to hear from the two companies and consumer advocates during today's hearing to address important questions raised by policyholders, [LDI] experts and the Louisiana Legislature. However, as of this morning, the parties have elected to withdraw their application. There are serious questions that require answers to provide protections and safeguards for Louisiana ratepayers and providers. The withdrawal of the application forecloses further consideration of this matter. [Emphasis added.]

This official factual statement, from a source whose accuracy cannot reasonably be questioned, and which Mr. Kinney concedes is factually true, plainly shows that Mr. Kinney's suit is moot. Because BCBSLA has withdrawn the Plan of Reorganization, there is no pending action whereby BCBSLA will be demutualized from a non-profit mutual insurance organization into a for-profit entity owned by Elevance; no pending plan provides that any sales price and cash owned by BCBSLA will be paid to Accelerate; and no action by Accelerate is pending that could harm Mr. Kinney or purported class members, since there is no pending plan whereby Accelerate will “terminate the present health insurance coverage” or whereby it will “take [Mr. Kinney's] and the [class's] property without divulging the true value of the [BCBSLA] members’ ownership and the true effect on selling BCBSLA to Elevance[.]”

Thus, Mr. Kinney's suit seeking to enjoin Accelerate from taking his property or the purported class's property, from interfering with their BCBSLA health insurance, and seeking a declaratory judgment that Accelerate's actions are harmful to him and to the purported class no longer presents an active dispute for this Court to decide. See Stevens, 212 So.3d at 566-67. Further, as stated by Commissioner Temple in the LDI News Release, because BCBSLA's Plan of Reorganization has been withdrawn, further consideration of the Plan of Reorganization is foreclosed. Thus, the trial court's January 31, 2024 judgment, sustaining Accelerate's exception of lack of subject matter jurisdiction and dismissing Mr. Kinney's petition without prejudice (so the matter could first be considered by Commissioner Temple) serves no useful purpose and can give no practical relief or effect. Id.⁷

In sum, because the subject matter of Mr. Kinney's suit against Accelerate no longer presents a controversy to be resolved, the suit has become moot, and there is no subject matter upon which this Court's judgment can operate. See Stevens, 212 So.3d at 567. We note that the January 31, 2024 judgment dismissed Mr. Kinney's petition without prejudice; thus, he is not precluded from commencing future legal action in the event BCBSLA submits another reorganization plan.⁸

CONCLUSION

For the above reasons, we grant the motion to dismiss the appeal filed by The Accelerate Louisiana Initiative, Inc. and dismiss the appeal of the January 31, 2024 judgment filed by Henry W. Kinney. We assess all costs of this appeal to Henry W. Kinney.

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED.

I respectfully concur. I disagree with the majority's decision to grant Accelerate's motion to dismiss the appeal based upon its reliance on a press release from the Insurance Commissioner, which it finds sufficient to establish facts supporting the basis of the motion and to resolve the issue of mootness. However, I agree with the majority that Mr. Kinney's concession that the Plan of Reorganization has been withdrawn, which he does not dispute on appeal, constitutes a judicial confession. Thus, I believe his continued efforts to “enjoin illegal actions of Accelerate,” in the abstract, do not justify maintaining the appeal.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

HENRY W. KINNEY

VERSUS

THE ACCELERATE LOUISIANA INITIATIVE, INC.

DOCKET NUMBER 2024 CA 0963

MILLER, J., concurring.

I respectfully concur. I disagree with the majority's decision to grant Accelerate's motion to dismiss the appeal based upon its reliance on a press release from the Insurance Commissioner, which it finds sufficient to establish facts supporting the basis of the motion and to resolve the issue of mootness. However, I agree with the majority that Mr. Kinney's concession that the Plan of Reorganization has been withdrawn, which he does not dispute on appeal, constitutes a judicial confession. Thus, I believe his continued efforts to “enjoin illegal actions of Accelerate,” in the abstract, do not justify maintaining the appeal.

FOOTNOTES

1.   A “complaint” is a pleading filed in federal court to commence a civil action, whereas the similar pleading in state court is called a “petition.” See Fed. Rules Civ. P. art. 3 and La. C.C.P. arts. 852 and 891. Mr. Kinney's complaint is properly captioned as a petition.

2.   Accelerate also filed exceptions of no right of action and no cause of action. Louisiana Code of Civil Procedure article 927(B) requires that the trial court address any objection to subject matter jurisdiction before ruling on any other matter. In compliance with La. C.C.P. art. 927(B), the trial court herein heard Accelerate's objection to subject matter jurisdiction first and thereafter sustained the exception. Thus, the trial court did not hear Accelerate's other exceptions, and they are not at issue in the appeal.

3.   Louisiana Revised Statutes 22:72 pertinently provides:A. No domestic insurer may convert from a stock to a mutual, or from a mutual to a stock insurer, or from any type insurer to any other type insurer ․ unless a plan of conversion is submitted to and approved by the commissioner of insurance.B. The commissioner of insurance shall not approve any such conversion unless in his opinion after a full investigation the best interests of the policyholders of any such insurer will be served.Louisiana Revised Statutes 22:236 through 22:236.11 provide for conversion of mutual life insurers and mutual life insurance holding companies.

4.   We note that, on March 5, 2024, after the judgment herein was signed but before the appeal was granted, Mr. Kinney filed a “Motion for Dismissal and Plea of Mootness and [Memorandum],” wherein he stated, “On February 14, 2024, the Commissioner of the Louisiana Department of Insurance cancelled the entirety of the application of reorganization of BCBSLA[.]” This admission by Mr. Kinney in a pleading could possibly be construed as a judicial confession constituting full proof against him under La. C.C. art. 1853. See 1026 Conti Holding, LLC v. 1025 Bienville, LLC, 2022-01288 (La. 3/17/23), 359 So.3d 930, 941.

5.   In Boucher v. Division of Employment Sec., Dept. of Labor, 235 La. 851, 857, 106 So.2d 285, 287 (La. 1958), the Supreme Court recognized the general prohibition against considering evidence that was not introduced below. But, the Boucher court instead considered post-judgment evidence, finding a remand of the case for the purpose of offering the evidence in the court below would serve no useful purpose, because the parties to the appeal admitted the facts contained in the post-judgment evidence.

6.   Mr. Kinney filed the February 14, 2024 LDI News Release as an exhibit to the “Motion for Dismissal and Plea of Mootness and [Memorandum]” referenced in footnote 4. The appellate record does not show if the exhibit was introduced into the record at the subsequent hearing on the motion.

7.   Mr. Kinney's suit herein against Accelerate is distinguishable from a separate suit he filed against BCBSLA, wherein this Court found the district court, rather than the Department of Insurance and Commissioner of Insurance, had subject matter jurisdiction. In Kinney v. Louisiana Health Service & Indemnity Company, 2024-0965 (La. App. 1 Cir. 2/21/25), 2025 WL 573292, *3, writ denied, 2025-00355 (La. 5/29/25), 410 So.3d 146, Mr. Kinney sought a writ of mandamus compelling BCBSLA to conduct a fair and open election for the BCBSLA Board of Directors, with adequate notice of elections to its members and the ability to participate. Id. at *1. In that suit, Mr. Kinney did not challenge BCBSLA's Plan of Reorganization, mootness was not at issue, and this Court determined the district court, rather than the Department of Insurance and Louisiana Commissioner of Insurance, had subject matter jurisdiction to determine if Mr. Kinney was entitled to the writ of mandamus against BCBSLA. Id. at 3.

8.   Based on our dismissal of Mr. Kinney's appeal as moot, we do not address his assignments of error.

GREENE, J.

Miller, J concurs with reasons