TERRY VASCOCU v. PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE KATHERINE CLARK BOYCE AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (2026)

Plaintiff, Terry Vascocu, appeals a judgment of the trial court sustaining peremptory exceptions raising the objections of no right of action and no cause of action and dismissing the plaintiffs claim against the defendant, Privilege Underwriters Reciprocal Exchange (“PURE”). For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This case arises out of an automobile accident that occurred in Baton Rouge, Louisiana. On August 20, 2024, Ms. Vascocu filed a petition for damages, naming PURE, Katherine Clark Boyce (“Ms. Boyce”), and State Farm Mutual Automobile Insurance Company (“State Farm”) as defendants. In the petition, she averred that on November 20, 2023, at approximately 2:51 p.m., she was traveling westbound on Perkins Road in a 2016 Mazda CX-5 when a 2021 Jeep Wrangler operated by Ms. Boyce attempted to turn left onto Perkins Road from a private drive, located on the north side of Perkins Road, and collided with her vehicle. The force of the collision smashed the Mazda CX-5, and it flipped over onto its driver's side, causing the driver's-side window and the windshield to shatter. As a result of the accident, Ms. Vascocu alleged she sustained injuries to her mind and body, property damage, and other general and special damages.

Ms. Vascocu alleged her injuries and damages were caused by Ms. Boyce's fault, negligence, imprudence, want of skill, and acts and/or omissions. She asserted PURE issued a policy of automobile insurance that was in full force and effect and insured Ms. Boyce and the Jeep Wrangler at the time of the crash and all times pertinent thereto, which provided coverage for the damages claimed by her. According to Ms. Vascocu, Ms. Boyce's total liabilities exceeded the total of her fairly appraised assets and Ms. Boyce was unable to pay debts, including those owed to Ms. Vascocu as a result of the crash. Ms. Vascocu asserted the defendants were indebted to her jointly, severally, and in solido.

PURE filed an answer, which asserted general denials and set forth affirmative defenses, and peremptory exceptions raising the objections of no right of action and no cause of action and a motion to strike. PURE asserted therein that Ms. Vascocu improperly named it as a defendant and included it in the suit caption. PURE contended Ms. Vascocu's petition violated the 2024 revisions to Louisiana's Direct Action Statute, La. R.S. 22:1269. PURE explained that effective August 1, 2024, La. R.S. 22:1269 prohibits filing a suit directly against an alleged tortfeasor's insurer and prohibits an insurer from being named in the suit caption. Thus, PURE asserted the suit against it should be dismissed and any reference to PURE, or any other insurer, should be stricken from the pleadings and captions. Ms. Vascocu opposed the exceptions.

Following a hearing, the trial court signed a judgment on February 28, 2025, sustaining PURE's exceptions raising the objections of no right of action and no cause of action and dismissing Ms. Vascocu's claims against PURE. The court also granted PURE's motion to strike and gave Ms. Vascocu thirty days to amend her petition to remove PURE from the caption of the suit and all reference to PURE as a defendant from the petition. From this judgment, Ms. Vascocu appeals.¹ On appeal, she assigns error to the following:

1. The trial court erred in granting PURE's Exception of No Cause of Action given that the Plaintiff adequately asserted a direct action against PURE pursuant to the insolvency exception under La. R.S. 22:1269(B)(1)(b).

2. The trial court erred in granting PURE's Exception of No Right of Action when no evidence was presented to controvert Plaintiff's allegations of the insured's insolvency.

DISCUSSION

At the outset, we note that the issues presented in this case arise in the context of PURE's exceptions raising the objections of no right of action and no cause of action. Although these two exceptions are often confused or improperly combined, the peremptory exceptions raising the objections of no right of action and no cause of action are separate and distinct. See La. Code Civ. P. art. 927(A)(5) and (6); Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La. 3/17/06), 929 So.2d 1211, 1216. A defendant challenging a plaintiff's right to proceed under Louisiana's Direct Action Statute may do so by means of an exception raising the objection of no right of action. Thus, an insurance company that proves that the requirements of the Direct Action Statute have not been fulfilled is entitled to dismissal of the claim against it on an exception raising the objection of no right of action. Seibel v. Holmes, 2022-1107 (La. App. 1st Cir. 8/16/23), 371 So.3d 1082, 1087.

Only a person who has a real and actual interest can bring an action, unless otherwise provided by law. See La. Code Civ. P. art. 681. The peremptory exception raising the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. The exception does not raise the question of the plaintiff's ability to prevail on the merits nor the question of whether the defendant may have a valid defense. See La. Code Civ. P. art. 927(A)(6); Pearce v. Lagarde, 2020-1224 (La. App. 1st Cir. 10/7/21), 330 So.3d 1160, 1166-67, writ denied, 2022-00010 (La. 2/22/22), 333 So.3d 446. A trial court's ruling sustaining a peremptory exception raising the objection of no right of action is generally reviewed under the de novo standard of review to determine whether the trial court was legally correct. However, when evidence is introduced to support or controvert an exception raising the objection of no right of action, the trial court's factual findings are reviewed under the manifest error-clearly wrong standard of review. McKinley v. McKinley, 2024-0850 (La. App. 1st Cir. 3/21/25), 410 So.3d 375,379-80.

The party that files the exception raising the objection of no right of action bears the burden of proof. Three Rivers Commons Condominium Association v. Grodner, 2016-0067 (La. App. 1st Cir. 5/10/17), 220 So.3d 776, 780 (per curiam), writ denied, 2017-0974 (La. 4/2/18), 248 So.3d 315. To prevail on a peremptory exception pleading the objection of no right of action, the defendant must show that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit. Pearce, 330 So.3d at 1167.

If the pleadings fail to disclose a right of action, the claim may be dismissed without evidence. However, if the pleadings state a right of action, the defendant may introduce evidence to controvert the pleadings. The plaintiff likewise may introduce evidence to controvert any objections. See La. Code Civ. P. art. 931; Reyer v. Milton Homes, LLC, 2018-0580 (La. App. 1st Cir. 2/25/19) 272 So.3d 604, 608. However, in the absence of evidence to the contrary, the averments of fact in the pleadings will be taken as true. Three Rivers Commons Condominium Association, 220 So.3d at 780. Where doubt exists regarding the appropriateness of an exception raising the objection of no right of action, it is to be resolved in favor of the plaintiff. Pearce, 330 So.3d at 1167.

Louisiana's Direct Action Statute, La. R.S. 22:1269, grants “a procedural right of action against an insurer where the plaintiff has a substantive cause of action against the insured.” It was established “to give special rights to tort victims.” Soileau v. Smith True Value and Rental, 2012-1711 (La. 6/28/13), 144 So.3d 771, 775. Otherwise, “a plaintiff would have no right of action against an alleged tortfeasor's liability insurer because the obligation between the plaintiff, and the alleged tortfeasor is delicta in nature, and the plaintiff has no contractual relationship with the tortfeasor's insurer.” Id. Louisiana's Direct Action Statute was amended and the amendment became effective August 1, 2024. Louisiana Revised Statutes 22:1269 pertinently provides:

A. No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his survivors, mentioned in Civil Code Art. 2315.1, or heirs against the insurer.

B. (1) The injured person or, if deceased, the persons identified in Civil Code Articles 2315.1 and 2315.2, shall have no right of direct action against the insurer unless at least one of the following applies:

(a) The insured files for bankruptcy in a court of competent jurisdiction or when proceedings to adjudge an insured bankrupt have been commenced before a court of competent jurisdiction.

(b) The insured is insolvent.

(c) Service of citation or other process has been attempted without success or the insured defendant refuses to answer or otherwise defend the action within one hundred eighty days of service.

(d) When the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons.

(e) When the insurer is an uninsured motorist carrier.

(f) The insured is deceased.

(g) When the insurer is defending the lawsuit under a reservation of rights, or the insurer denies coverage to the insured, but only for the purpose of establishing coverage.

(Emphasis added).

In the instant case, Ms. Vascocu argues PURE had the burden of proving that she had no right to bring this action, but she notes that at the hearing on the exceptions, PURE did not introduce evidence controverting her allegation in the petition that Ms. Boyce is insolvent. Conversely, PURE contends allegations of insolvency based on Ms. Vascocu's information and belief are not sufficient to allow Ms. Vascocu a right of action against it under the word and spirit of the 2024 amendment to La. R.S. 22:1269, Louisiana's Direct Action Statute. In sustaining the exceptions, the trial court noted the revisions to La. R.S. 22:1269 requires events to have taken place. The court reasoned “and counsel's petition for damages, it's an allegation only that the insured is insolvent, not a fact, as required under [La. R.S.] 22:1269(B)(1).”

PURE, as the exceptor, had the burden of showing that Ms. Vascocu did not have the legal capacity to proceed with this suit under Louisiana's Direct Action Statute. No evidence was offered at the hearing on the exceptions. See Pearce, 330 So.3d at 1167. Therefore, the allegations in the pleadings are accepted as true. In Ms. Vascocu's petition for damages, she alleged she was injured by Ms. Boyce in an automobile accident and that PURE was Ms. Boyce's automobile insurer. Ms. Vascocu further alleged that Ms. Boyce's total liabilities exceeded the total of her fairly appraised assets and Ms. Boyce was unable to pay debts, including those owed to Ms. Vascocu as a result of the crash, as they become due. Ms. Vascocu asserted the defendants were indebted to her jointly, severally, and in solido.

Under the 2024 revisions to Louisiana's Direct Action Statute, an injured person has no right against an insurer unless an enumerated exception under La. R.S. 22:1269(B)(1) applies to her suit. See La. R.S. 22:1269(B)(1). Here, Ms. Vascocu asserted in the petition for damages that Ms. Boyce was insolvent, which is an enumerated exception under Louisiana's Direct Action Statute. Because the petition alleged that Ms. Boyce was insolvent and there was no evidence presented at the hearing to the contrary, PURE did not meet its burden of proving that Ms. Vascocu has no legal capacity to proceed with the suit. Accordingly, we find the trial court erred in sustaining PURE's exception raising the objection of no right of action.

We also find the trial court erred in sustaining the exception raising the objection of no cause of action. An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Badeaux, 929 So.2d at 1217. As previously stated, in the petition, Ms. Vascocu alleged she sustained injuries in an automobile accident caused by Ms. Boyce. She asserted Ms. Boyce was insolvent and PURE was Ms. Boyce's automobile insurer. Therefore, we conclude that Ms. Vascocu stated a cause of action for negligence.

CONCLUSION

For the foregoing reasons, we reverse the February 28, 2025 judgment of the trial court sustaining Privilege Underwriters Reciprocal Exchange's exceptions raising the objections of no cause of action and no right of action. Costs of this appeal are assessed to Privilege Underwriters Reciprocal Exchange.

JUDGMENT REVERSED.

FOOTNOTES

1.   Prior to filing the motion for appeal, Ms. Vascocu sought supervisory review of the trial court's February 28, 2025 judgment sustaining PURE's exceptions raising the objections of no right of action and no cause of action and dismissing Ms. Vascocu's claims against PURE. On July 14, 2025, this court found the February 28, 2025 judgment was a final, appealable judgment pursuant to La Code Civ. P. art. 1915(A)(1) and granted the writ application for the limited purpose of remanding the matter to the trial court with instructions to grant an appeal to Ms. Vascocu. Vascocu v. Privilege Underwriters Reciprocal Exchange, 2025-0343 (La. App. 1st Cir. 7/14/25), 2025 WL 1927606 (unpublished).

FIELDS, J.