Anthony Cemo Versus State Farm Mutual Automobile Insurance Company

ANTHONY CEMO NO. 21-C-731

VERSUS FIFTH CIRCUIT

STATE FARM MUTUAL AUTOMOBILE COURT OF APPEAL

INSURANCE COMPANY STATE OF LOUISIANA

February 18, 2022

Susan Buchholz First Deputy Clerk

IN RE ANTHONY CEMO

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A. ROWAN, JR., DIVISION "L", NUMBER 800-124

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg

WRIT GRANTED

Relator, Anthony Cemo, seeks review of the Twenty-Fourth Judicial District Court’s November 19, 2021 judgment denying his Motion for Leave to File Plaintiff’s First Supplemental and Amended Petition for Damages. On October 9, 2018, Relator was rear-ended in a hit-and-run accident at a stop light while traveling southbound on Manhattan Boulevard, near Gretna Boulevard, by a Ford F-150 pickup truck. The driver of the truck “fled the scene on foot” after the collision and the owner of the truck claimed his vehicle had been stolen. Relator filed suit against his uninsured motorist (“UM”) insurer State Farm Mutual Automobile Insurance Company (“State Farm”) on October 3, 2019 and State Farm filed its answer on October 29, 2019. The matter was set for trial by jury on November 3, 2021.

On September 30, 2021, a week after an unsuccessful attempt at mediation between the parties, Relator filed his Motion for Leave to File Plaintiff’s First Supplemental and Amended Petition for Damages. Relator sought to supplement his Petition for Damages to allege bad faith adjustment of his UM bodily injury claims and request damages, penalties, attorney fees pursuant to La. R.S. 22:1892 and 22:1973. The district court ordered State Farm to appear on November 15, 2021 to show cause why Relator’s motion should not be granted.

In response, State Farm filed Defendant’s Opposition to Plaintiff’s Motion for Leave to File First Supplemental and Amended Petition on November 5, 2021. Relator claims that he sustained injuries to his left shoulder, left knee, neck, back,

and right hip as a result of the accident. State Farm argued that there was a legitimate dispute regarding causation of the injuries to Relator’s left shoulder and right hip. State Farm averred that Relator “has a longstanding history of shoulder complains and [their medical expert] does not believe the accident caused the rotator cuff tear, necessitating the shoulder surgery.” State Farm noted that Relator’s initial complaints about his right hip occurred eight months after the accident, Relator’s hip surgeon “also conceded that the timing of plaintiff’s initial complaints of hip pain is atypical,” and Relator’s hip revision surgery was required as a result of injuries sustained in a fall, rather than the accident. State Farm also disputes the extent to which all injuries, treatment, and medical expenses can be attributed to the October 2018 accident. In Relator’s reply memorandum, he claimed that the deposition transcripts of his treating physicians establish medical causation.

After “considering the pleadings, memoranda, and argument of counsel, and finding the law and evidence in favor of defendant,” State Farm, the district court denied Relator’s motion for leave. Relator timely filed a Notice of Intent. In the writ application, Relator argues that the district court erred when, in denying his motion for leave, it “made a summary judgment type decision by weighing evidence on the issue of whether defendant’s conduct was ‘arbitrary and capricious’”. Relator also alleges the district court abused its discretion when it, instead of “the ultimate trier of fact,” determined whether State Farm’s conduct was arbitrary and capricious. Relator also charges that the district court’s ruling deprived him of a cause of action in this instance where an insurer “has hired an expert to render an opinion to refute one or more of the essential elements” of Relator’s claims. State Farm counters that the district court properly denied Relator’s motion for leave, as Relator is precluded as bringing a claim of bad faith as a matter of law because there is a legitimate dispute regarding the medical causation of Relator’s injuries.

Pursuant to La. C.C.P. art. 1151, after an answer has been served, a plaintiff may amend a petition only by leave of court or by written consent of the adverse party. The court may permit the mover to file a supplemental petition setting forth causes of action which have become exigible since the date of filing the original petition and are related to or connected with the cause of action. La. C.C.P. art. 1155. The decision to grant leave to amend or supplement a pleading is within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion indicating a possibility of resulting injustice. Amendments should be permitted if: 1) the movant is acting in good faith; 2) the amendment is not being used as a delay tactic; 3) the opponent will not be unduly prejudiced; and 4) the trial will not be unduly delayed.

Stein v. City of Gretna, 17-554 (La. App. 5 Cir. 5/30/18); 250 So.3d 330, 340 (citations omitted).

Applying the criteria outlined in Stein, we find that the trial court committed error when it denied Plaintiff’s Motion for Leave to File Plaintiff’s First Supplemental and Amending Petition. Our review of the court record, writ application, and requested supplement to the application - - the transcript of the November 15, 2021 hearing on Relator’s motion - - does not reveal any findings

that justify the trial court’s exercise of its discretion to deny Relator’s motion for leave. Relator filed a Motion and Order to Set Status Conference, which the district court set for May 17, 2021, after several months where neither party filed any pleadings. The parties attempted to mediate Relator’s claims. Relator filed his motion for leave on September 30, 2021, five days before the last pre-trial conference was scheduled. A jury trial was to commence on November 3, 2021. The district court set the hearing on the motion for leave on November 15, 2021. Last, State Farm will not be unduly prejudiced if Relator is granted leave to file Plaintiff’s First Supplemental and Amending Petition when the original petition sought damages for injuries sustained as a result of an auto accident. State Farm was already on notice that causation of Relator’s injuries and possible damages awards for past and future medical expenses, pain and suffering, etc., are at issue. The expert testimony and documents that State Farm has and will submit into evidence to challenge causation of certain injuries and potentially defend itself against bad faith claims is the same. Instead of using the criteria outlined in Stein, supra, to determine whether to grant Relator’s request to amend and supplement his claim, the trial court considered the merits of Relator’s bad faith claims, and made factual determinations regarding a matter not yet properly before it at the time of the hearing.

Based on the foregoing, the writ application is granted. Relator is granted leave to file Plaintiff’s First Supplemental and Amended Petition within 15 days of this disposition.

Gretna, Louisiana, this 18th day of February, 2022.

MEJ RAC HJL

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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21-C-731 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Donald A. Rowan, Jr. (DISTRICT JUDGE) Ross F. Lagarde (Relator) Joseph M. Messina (Respondent)

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PS Form 3811, July 2015 PSN 7530-02-000-9053