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SHAHAID IQBAL ABBASI VERSUS STATE FARM INSURANCE COMPANY, SHANE JACKSON AND SHANNON RAMIREZ

NO. 04-CA-44 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 19-282, DIVISION "A" HONORABLE REBECCA M. OLIVIER, JUDGE PRESIDING MAY 26, 2004

MARION F. EDWARDS JUDGE

Panel composed of Judges James L. Cannella, Marion F. Edwards and Clarence E. McManus

SALVADOR M. BROCATO JIM S. HALL 800 N. Causeway Blvd.
Suite 100

Metairie, LA 70001 COUNSEL FOR PLAINTIFF/APPELLEE

DAVID A. STAUSS BRYAN J. DE TRAY CHRISTIAN A. GARBETT
201 St Charles Ave.

Suite 3800 New Orleans, LA 70170 COUNSEL FOR DEFENDANT/APPELLANT

SET ASIDE IN PART: AFFIRMED IN PART

The present appeal is taken from a final judgment of the First Parish Court for the Parish of Jefferson. Plaintiff/appellee, Shahid Iqbal Abbasi, filed suit against defendants/appellants Shannon Ramirez, Shane Jackson, and State Farm Mutual Insurance Company. Mr. Abbasi alleged that on October 27, 2000, he was injured when the vehicle which he was driving was struck by an automobile owned by Ms. Ramirez but operated by Mr. Jackson. State Farm answered the petition on its own behalf and on behalf of its insured, Ms. Ramirez, and filed an Exception of No Cause of Action. Service was never made on either Mr. Jackson or Ms. Ramirez. At the conclusion of the trial on the merits, State Farm orally moved to dismiss Mr. Jackson because he had not been served with the petition. In the judgment resulting from the trial, the court declined to dismiss Mr. Jackson, and determined that Mr. Abbasi "made adequate effort to locate the driver, Shane Jackson and requested service timely. Should this Court follow defendants'

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argument, then parties who evade service likewise prevent the insurer from being liable." The court found Mr. Jackson was at fault, and that Mr. Jackson was operating Ms. Ramirez's vehicle with her permission. The court also determined that Mr. Abassi was comparatively negligent to the degree of 30%. A judgment of $7500.00 for pain and suffering was awarded, plus $750.00 for medical expenses, and the judgment was reduced by 30%. At trial, State Farm agreed to stipulate that it's insured, Ms. Ramirez, gave permission to Mr. Jackson to operate her vehicle, and that the insurance policy in effect at the time of the accident covered the user, Mr. Jackson. On appeal, State Farm contends that insofar as there is judgment against Mr. Jackson, such is an absolute nullity as he was never served with process. We agree. Procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action against an individual.' Under La. C.C.P. art. 1201, a judgment rendered against a defendant who has not been validly cited and served with the petition is absolutely null, even if there is actual notice of the suit. Without such citation and service of process, the court does not have jurisdiction over the person of the defendant.2 Further, La. C.C.P. art.2002 (2) provides that among those judgments which may be annulled are those rendered "against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken." Therefore, the court did not have personal jurisdiction over Mr. Jackson to render a judgment against him. State Farm next alleges that the trial court made no specific finding that Ms. Ramirez was at fault. In his petition, Mr. Abbasi urged that Ms. Ramirez was

' In re Justice ofPeace Landry 2001-0657 (La. 6/29/01), 789 So.2d 1271. 2 Id, Poret v. Billy Ray Bedsole Timber Contractor, Inc., 31,531 (La.App.2 Cir. 1/22/99), 729 So.2d 632 citing U.S. Fidelity and Guaranty Co. v. Hurley, 96-1421 (La.App. 4 Cir. 8/6/97), 698 So.2d 482.

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negligent in allowing Mr. Jackson to operate her vehicle when she knew or should have known that he was not capable of doing so safely, and that she failed to properly and adequately supervise him. Mr. Abbasi testified that on the day of the accident, he was driving his cab in the right lane on Cleary Avenue, heading toward Veterans Boulevard. In that lane, one must turn right onto Veterans. The lane was clear, but traffic in the left lane was backed up due to a red light. The car driven by Mr. Jackson came straight across Cleary from a parking lot to the left, and Mr. Abassi's vehicle collided into
it.

Ms. Ramirez testified that she was a passenger in her car that day, as Mr. Jackson drove. In crossing Cleary, there were cars in the left lane on both sides of her vehicle. A white van stopped in the opposite lane and motioned the Ramirez car through; Ms. Ramirez did not know whether Mr. Jackson could see past the van into the right lane. She did not see the Abassi vehicle before the accident, but thought that her car was completely clear of the left lane when it was struck. Just prior to the accident, after Mr. Jackson turned and was in front of the van, he drove very slowly and looked to his right to see if there was any oncoming traffic. Negligence claims under La. Civ.Code art. 2315 are examined using a Duty/Risk analysis. The Duty/Risk analysis is a set of five separate elements that takes into account the conduct of each party and the peculiar circumstances of each case." One of the necessary considerations in the Duty/Risk analysis is to determine what, if any, duties were owed by the respective parties. Generally, there is an almost universal legal duty on the part of a defendant in a negligence case to conform to the standard of conduct of a reasonable person in like

3 Joseph v. Dickerson 1999-1046 (La. 1/19/00), 754 So.2d 912, and the cases cited therein.

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circumstances. Whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case, and the relationship of the parties.4 In Louisiana, owners of motor vehicles are ordinarily not personally liable for damages which occur while another is operating the vehicle. Exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, and when the owner is himself negligent in entrusting the vehicle to an incompetent driver." Imputation of negligence of one person to another is allowed only when there exists between them some relation of master or superior and servant or subordinate or other similar relationship. The relationship between them must be one invoking the principles of agency, or the persons must be co-operating in a common or joint enterprise, or the relationship between the parties must have been such that the person to whom the negligence is imputed must have had a legal right to control the action of the person who was actually negligent.6 Under the negligent entrustment theory, the lender of a vehicle is not responsible for the negligence of the borrower unless he knew or should have known that the borrower was physically or mentally incompetent to drive; if the lender knew or should have known of the borrower's incompetence then he is responsible for the harm resulting from the incompetent operation of the vehicle.' The evidence at trial discloses no evidence that Mr. Jackson was physically or mentally incompetent to drive, or that if any such incompetence existed, that Ms. Ramirez knew or should have known it. Moreover, there was no showing as to why Mr. Jackson was driving the car, that he was on a mission for Ms. Ramirez, or that he was either her agent or employee. Mr. Jackson and Ms. Ramirez were not married. Based on the evidence, we are unable to conclude that there existed a
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Aupiedv. Joudeh, 96-202 (La.App. 5 Cir. 4/9/97), 694 So.2d 1012, writ denied97-l583 (La. 10/10/97), 703 So.2d 605. Oaks v. Dupuy, 32,070, (La.App. 2 Cir. 8/18/99), 740 So.2d 263.

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common or joint enterprise at the time of the accident, or that Ms. Ramirez had a legal right to control the actions of Mr. Jackson. In its judgment, the trial court made no finding of fault or negligence against Ms. Ramirez. When a judgment is silent regarding an issue that was litigated, it is presumed to be a rejection of that claim." Under the facts and circumstances of the instant case, we see no manifest error in the refusal of the trial court to assess liability to Ms. Ramirez. We find no error in the assessment ofthe comparative fault of Mr. Jackson and Mr. Abassi. However, we consider the stipulations agreed to by State Farm that its insured, Ms. Ramirez, gave permission to Mr. Jackson to operate her vehicle, and that the insurance policy in effect at the time of the accident covered the user, Mr. Jackson. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Such agreements are the law of the case. * Thus, we note the elements necessary to establish Mr. Abassi's case against State Farm were sufficiently presented in the stipulation itself. State Farm argues that because "the claims against Shane Jackson should have been dismissed, and the claims against Ms. Ramirez were properly rejected," the only defendant who was properly before the court was State Farm. It further urges that under La. R.S. 22:655(B)(l), the claims against it must be dismissed because Mr. Abassi had no right to proceed directly against the insurer. This assignment of error is a misapplication of the applicable law and facts. Under R.S. 22:655(B)(l), a direct action may be brought against the insurer alone only when:

See Cuny v. Quinn, (03-649 La.App. 5 Cir. 10/28/03), (860 So.2d 232); Klein v. BMWofNorth America, Inc., 97-871 (La.App. 5 Cir. 12/30/97), 705 So.2d 1200. 9 Becht v. Morgan Bldg. & Spas, Inc 2002-2047 (La. 4/23/03), 843 So.2d I 109.

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(a) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction; (b) The insured is insolvent; (c) Service of citation or other process cannot be made on the insured; (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; or (f) The insured is deceased. It has been held that under this statute, direct actions against insurers are strictly limited to those five enumerated circumstances, and when the insured is dismissed, there is no direct right of action against the insurer.'

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