MAX N. TOBIAS, JR., Judge.
Prime Insurance Company ("Prime"), the plaintiff/appellant, appeals a summary judgment in favor of defendant/appellee, Imperial Fire and Casualty Insurance
The facts as alleged by Prime are as follows: The focus of the underlying matter centers primarily around a class action lawsuit filed on 9 December 2002 in the 19th Judicial District Court for the Parish of East Baton Rouge (hereafter "the underlying suit"). At the time that suit was filed, only two companies sold taxicab insurance for the New Orleans market: Prime and Imperial.
The premise of the underlying suit was that Prime was liable to its policyholders because it sold non-compliant insurance policies to taxicab owners and drivers. The lawsuit alleged that Louisiana law, as found in La. R.S. 45:200.4 and 32:866(A), required that cab policies pay full coverage with zero deductible. However, the Prime policies contained a $500 self-insured retention ("S.I.R.") provision, thereby violating the law. In addition, it was further alleged that the policies violated Louisiana law by requiring the deduction of defense costs. The fact that the policies were non-compliant was never disputed by Prime.
In fact, at the time the underlying suit was filed, Prime was already working with the Louisiana Department of Insurance ("DOI") to correct the deficiencies, which was accomplished in mid-March 2003. Moreover, during the pendency of the underlying suit, the trial court unequivocally held that the non-compliant policies were automatically reformed, pursuant to Louisiana law. It is clear throughout the almost seven years that the underlying suit was prosecuted that no plaintiff — named or putative — had ever suffered any damage as a result of Prime's policies. Moreover, Prime believed that Imperial and Gregory Porobil ("Porobil") (co-defendants in the matter sub judice), allegedly acting in concert with others, filed and continued to prosecute the underlying suit, knowing there were no damages. This, Prime claims, was done in order to achieve an ulterior motive — to damage Prime's insurance business in New Orleans.
The record reflects that Imperial and Porobil have a long history together. The owner of Imperial — J.E. Brignac ("Brignac") — and Porobil have been friends for over thirty-five years. Porobil began handling Imperial's legal business when it entered the Louisiana taxicab insurance market in the 1990s and has been its attorney since, managing an average of fifteen of Imperial's taxi claims each year. In addition, Porobil owned, at all pertinent times, Excell Underwriters, Inc., which served almost exclusively as Imperial's taxicab insurance agent. That relationship continued until 2011, when Brignac, and others, purchased Excell from Porobil.
Within a year of going into business together, Alleman, allegedly of his own accord, took one of his taxicabs off Porobil's Excell/Imperial insurance policy in order to purchase a month-long policy with Porobil's competitor, Bennie Jefferson of Maximal Insurance. At the time, Maximal was Prime's only insurance agent in New Orleans. Alleman testified that he made this move in order to save twenty-five dollars a month and to "stay competitive" in the taxicab operation business. Alleman also testified that he knew that Maximal was Excell's direct competitor.
During the one month of Maximal/Prime coverage, Alleman's taxicab did not get into any accidents, and, therefore, was never exposed to any claim for damages or had the occasion to test the policy's provisions. Nevertheless, after learning of the specifics of the policy, Porobil suggested that Alleman might want to file a class action suit against Prime. Porobil sent Alleman to Andre LaPlace ("LaPlace"), a Baton Rouge attorney, who, Porobil stated, knew more about class actions than he. LaPlace filed the underlying suit on the grounds that Alleman had heard that Prime tried to collect a deductible from another policyholder. The stated basis of the suit was that Prime had allegedly failed to comply with Louisiana's full coverage requirement under the financial responsibility laws, because the policies of insurance issued by Prime to certain Louisiana taxicab drivers contained a $500 deductible/SIR and deduction of defense costs provisions. Despite the fact that those provisions had never been enforced against Alleman and/or Floyd Bergeron ("Bergeron"), another named plaintiff, the suit sought reimbursement of premium payments, S.I.R. payments, voidance of the insurance policies, attorney's fees, and costs. At some point thereafter, Porobil enrolled as cocounsel in the underlying suit.
Throughout the pendency of the underlying suit, the class action plaintiffs produced no evidence that they had actually suffered damages. Only four plaintiffs were ever named: Alleman, Bergeron, Elite, and Montaster Girgis ("Girgis").
In addition, neither Alleman nor Bergeron had an attorney's fee contract with their lawyers. Neither Alleman nor any of the other plaintiffs paid for any litigation expenses; Alleman had no idea who bore those costs. In his deposition, Porobil stated that he and LaPlace bore all the
On 24 March 2005, Prime filed a motion for summary judgment to show that, prior to the filing of the underlying suit, Prime and the DOI had begun negotiations to correct any defects in the Prime policies. Within two months of the filing of the suit, Prime and the DOI had entered into an agreement that essentially mooted all claims brought in the lawsuit. This final agreement between Prime and the DOI was made known to the plaintiffs on numerous occasions through written discovery, depositions, and Prime's 2005 motion for summary judgment. Despite their awareness of Prime's agreement to correct all of its policies going forward and backward, the plaintiffs continued with their lawsuit.
At the 22 May 2006 hearing on the Prime's motion for summary judgment, the court found that its 11 April 2005 ruling that the policies violated Louisiana law needed clarification. The court explained, "[T]he auto polices of insurance issued that failed to meet the mandatory insurance requirements, including minimum limits are automatically reformed in accordance with the law." ("[The S.I.R.] provisions are without legal effect and the policies were reformed as a matter of law.") Thus, this holding meant that all of Prime's policyholders who purchased the policies with S.I.R. and defense cost provisions had paid for entirely legal taxicab insurance.
Nevertheless, Porobil continued to prosecute the claims by amending the suit two more times. On September 13, 2007, the fifth amended petition redefined the class action plaintiffs' theories to add the claim of declaratory relief that the policies be reformed, even though the 2006 ruling held that the policies were automatically reformed. A year later, on 13 October 2008, the suit was amended for the sixth time to add Girgis as another class representative on the purported basis that he was harmed when Prime attempted to collect a $500 deductible from him after settling with a third-party claimant. The deductible was never paid by Girgis; thus, no damages were incurred by him.
Finally, on 17 February 2009, almost seven years after the underlying suit had been filed and after several requests for continuance, the plaintiffs' motion for class certification was heard by the court. At the hearing, Prime presented an overwhelming amount of evidence that established, as already known to Porobil, that no plaintiff had ever been aggrieved and/or damaged. The plaintiffs offered no countervailing evidence or live witnesses to dispute Prime's position. In the face of such
After the class action petition was dismissed, Prime immediately filed a motion for summary judgment to dismiss the individual claims of the three remaining class representatives — Alleman, Elite, and Girgis; Prime's motion for was unopposed.
Once the underlying suit was dismissed, Prime filed the instant matter against Imperial, Porobil and his law firm, Alleman, and N.O. Elite, alleging malicious prosecution, conspiracy, restraint of trade, and a violation of the Louisiana Unfair Trade Practices Act ("LUTPA"). Once the depositions of the principal actors were taken, Imperial and Porobil filed separate motions for summary judgment; the trial court granted the motion filed by Imperial, but denied the motion filed by Porobil. Porobil has not sought appellate review of the denial of his motion.
Prime filed this appeal arguing that genuine issues of material fact exist concerning Imperial's involvement in the underlying suit, thereby precluding summary judgment.
In its brief filed to this court, as well as in the court below, Imperial argues that Prime has absolutely no direct evidence to demonstrate that Imperial was involved in the underlying suit, either on its own or through Porobil or Alleman. It contends that the depositions of the parties involved, including Porobil, Alleman, Brignac, and Prime's CEO and chairman, Richard J. Lindsey, do not link Imperial to the underlying suit in any way. Thus, Imperial argues that the trial court correctly granted its motion for summary judgment and dismissed it from the instant lawsuit.
We review a summary judgment determination de novo, the same standard applied by the trial court in deciding the motion for summary judgment. Lingoni v. Hibernia National Bank, 09-0737, p. 4 (La.App. 4 Cir. 3/3/10), 33 So.3d 372, 375, writ denied, 10-0975 (La.5/28/10), 36 So.3d 255.
Prime has assigned four errors for our review, each of which addresses a cause of action asserted by it against Imperial. The most important one, whether a civil conspiracy existed between Porobil and Imperial, is discussed first.
The Louisiana Supreme Court has held that conspiracy by itself is not an actionable claim under Louisiana law. Crutcher-Tufts Resources, Inc. v. Tufts, 07-1556, p. 3 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094 (citing Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546). The actionable element of a conspiracy claim is not the conspiracy itself but rather the tort that the conspirators agree to perpetrate and actually commit in whole or in part. Ames v. Ohle, 11-1540, p. 11 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 393. Prime's cause of action for civil conspiracy pled in its petition clearly identifies malicious prosecution, restraint of trade, and a
As we stated in Thomas v. North 40 Land Development, Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174:
It is hornbook law that summary judgment is not a substitute for a trial on the merits, and is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, knowledge and malice; that calls for credibility determinations and the weighing of testimony. Stewart Title of Louisiana v. Chevron, U.S.A., Inc., 12-1369, p. 6 (La. App. 4 Cir. 3/27/13), 112 So.3d 949, 952. Similarly, a motion for summary judgment is rarely appropriate for the disposition of issues requiring a determination of the reasonableness of acts and conduct of parties under all the facts and circumstances of a case. See Greater Lafourche Port Com'n v. James Const. Group, LLC, 11-1548, p. 7 (La.App. 1 Cir. 9/21/12), 104 So.3d 84, 88. Whether a particular fact is in dispute can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137. As the Supreme Court has explained, a "genuine issue" is a "triable issue," or one as to which reasonable persons could disagree. Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d 773, 777. A "material fact" is a fact, the existence or non-existence of which may be essential to a cause of action under the applicable theory of recovery. Id.
Malicious prosecution requires proof of six elements and the lack of any one of these factors is fatal to such a claim. They are: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6)
We find that Prime has stated a cause of action for malicious prosecution. In response to Imperial's motion, Prime submitted sufficient evidence to raise a genuine issue of material fact as to whether probable cause existed to justify the continuation of the underlying suit, especially in light of the trial court's May 2006 ruling.
LUTPA declares it unlawful to engage in "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." La. R.S. 51:1405 A. It also creates a right of action for any person who suffers any ascertainable loss for a violation of the statute. La. R.S. 51:1409 A; Cheramie Servs. Inc. v. Shell Deepwater Production Inc., 09-1633, pp. 6-7 (La.4/23/10), 35 So.3d 1053, 1057. Claims under LUTPA are not limited to consumers and business competitors, but are available to any person who suffers any ascertainable loss as a result of violations of the statute. Hardy v. Easterling, 47,950, p. 13 (La.App. 2 Cir. 4/10/13), 113 So.3d 1178, 1187. Acts constituting unfair or deceptive trade practices are not specifically defined but are determined on a case-by-case basis. Johnson Const. Co. v. Shaffer, 46,999, p. 5 (La.App. 2 Cir. 2/29/12), 87 So.3d 203, 208; Tyler v. Rapid Cash, LLC, 40,656, p. 9 (La.App. 2 Cir. 5/17/06), 930 So.2d 1135, 1140. The Supreme Court explained:
Cheramie Servs. v. Shell Deepwater, p. 11, 35 So.3d at 1160, quoting Turner v. Purina Mills Inc., 989 F.2d 1419, 1422 (5th Cir.1993).
We also find that a LUTPA claim has been properly pled. There is evidence that the continuation of the underlying suit may have operated to remove Imperial's main competitor from the New Orleans taxi cab insurance market. This type of behavior is exactly what the LUTPA seeks to prevent.
Both Porobil and Imperial stood to benefited from the underlying suit that prevented Prime from writing taxi cab policies in the Greater New Orleans area. Without Prime and/or Maximal, Porobil would be the only agent writing taxi cab insurance for Prime's only competitor, thereby profiting from increased commissions. Of course, the benefit to Imperial is obvious.
Reading the record as a whole, we find genuine issues of material fact regarding Imperial's part in the alleged conspiracy. We note that Porobil stated in his deposition that he most likely told Brignac about the class action lawsuit, a fact that was confirmed by Brignac. When asked why he would have told Brignac, Porobil testified that they talked back and forth about Prime. Despite this, Brignac testified that he was not kept abreast of the lawsuit.
At the time of the class action, Prime was Imperial's only competitor in the New
There was also testimony in the underlying lawsuit from Ron Musser, who worked for the DOI and served as Assistant Commissioner of the Office of Financial Solvency, who stated that he learned of the class action lawsuit from Brignac, the owner of Imperial. Brignac, however, could not recall the specifics of the conversation with Mr. Musser.
Imperial argues that Mr. Musser already knew about the illegal policies because Porobil had already filed a complaint against Prime with the DOI on 22 November 2002. However, if Brignac "couldn't care less" about the lawsuit, why would he call Mr. Musser to tell him about it? We find Brignac's testimony regarding Imperial's interest and/or involvement in the underlying suit contradictory, thereby creating a genuine issue of material fact.
Credibility of a witness is a question of fact. In determining a motion for summary judgment, the court must assume that all affiants are credible. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234. Facts are "material" if they are determinative of the outcome of the dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). If reasonable minds could differ as to an issue of material fact, summary judgment is improper. Woodland Properties, LLC v. New Orleans Sewerage and Water Board, 10-0331, p. 4 (La.App. 4 Cir. 9/29/10), 49 So.3d 443, 445.
We find that Imperial's involvement, or lack thereof, in the underlying class action suit is a question of fact. We agree that Prime's evidence is far from overwhelming, however, we view this as a case to be determined by a trier of fact that is capable of determining the credibility of the witnesses.
For the reasons stated above, we reverse the summary judgment of the trial court and remand the matter for further proceedings consistent with this opinion.