MARY PHYLLIS SOILEAU v. SMITH TRUE VALUE AND RENTAL ET AL (2013)

I agree with the majority's conclusion that the word “brought” in La. R.S. 22:1269(B)(1) means “initially filed” or “commenced.”   As the majority correctly notes, the word has attained a specific meaning in the legislation that has been accepted and honored by the jurisprudence.   Moreover, as reflected in the majority's citation to the testimony before the House of Representatives' Civil Law and Procedure Committee, ascribing this generally prevailing meaning to the word is in accord with the legislative intent behind the 1988 amendment of the direct action statute.   When a suit is “initially filed” against both an insurer and its insured, the purpose of La. R.S. 22:1269(B)(1) is achieved-the trier of fact is made aware, through the caption of the pleadings, that the case involves not just a plaintiff and a faceless insurance company, but also an insured.   Thus, when, as occurred in this case, an insured originally named in a lawsuit along with the insurer is subsequently dismissed from the lawsuit, the provisions of La. R.S. 22:1269(B)(1)(a)-(f) are not invoked, and the plaintiff's right to proceed against the insurer alone is not affected.

I likewise agree with the majority's conclusion that the unique facts and circumstances of this case, evidenced in the high/low settlement agreement, indicate that the plaintiff's dismissal was limited to a dismissal of the insureds only and that plaintiff's right to proceed against the insurer was expressly reserved.   The language of the settlement agreement clearly reflects an intent to shield the insureds from an excess judgment.   The right to proceed against all defendants is otherwise expressly reserved.   This reservation allowed the plaintiff to subsequently dismiss the insureds without adversely impacting plaintiff's right to proceed against the insurer.   On this basis, I concur in the majority's conclusion that the subsequent dismissal of the insureds at trial did not extinguish the insurer's obligation under the policy to answer for the damages caused by its insureds.