PONTCHARTRAIN NATURAL GAS SYSTEM v. TEXAS BRINE COMPANY LLC (2020)

Writ application denied.

Together with writ application No. 2020-C-00334, I would grant and docket the writ application of Texas Brine Company, LLC. Defendants National Union Fire Insurance Company of Pittsburgh, Pa. and AIG Specialty Insurance Company, who were insurers of Texas Brine for certain periods prior to the discovery of the Bayou Corne sinkhole out of which this litigation arises, filed a motion for summary judgment seeking dismissal of the plaintiffs’ claims. Texas Brine opposed the motions and asserted, inter alia, that the defendant-insurers continued to owe a duty to defend it in the sinkhole litigation. The district court granted the defendant-insurers’ motion to dismiss the plaintiffs’ claims against them but expressly denied the motion as to the defendant-insurers’ duty to defend Texas Brine. The court of appeal reversed the district court relevant to Texas Brine's third party claims for indemnity and defense and rendered summary judgment in favor of defendant-insurers, dismissing Texas Brine's claims against them.

Given that the court of appeal ruled on issues not raised in the motion for summary judgment filed by plaintiffs, I believe the court of appeal's interpretation of La. C.C.P. art. 966(F) warrants further study by this Court. That article provides “[a] summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.” La. C.C.P. art. 966(F) (emphasis added). Relatedly, I would examine whether Texas Brine constitutes an “adverse party” in the defendant-insurers’ motion. See La. C.C.P. art. 966(D)(1) (“The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.”) (emphasis added). Accordingly, I would grant and docket this writ application to determine whether the court of appeal erred in reversing the district court's denial of summary judgment as to the claims of Texas Brine against the defendant-insurers.

Crichton, J., would grant and docket and assigns reasons. Genovese, J., dissents for reasons assigned by Judges Guidry and Welch. Crain, J., recused.