Wolcott v. Trailways Lines12/6/2000
Application for rehearing may be filed within the delay allowed by art. 2166, La. C.C.P.
Plaintiffs, Holton J. Wolcott, Jr., John F. Wolcott, George M. Wolcott, Janet Wolcott Dickerson and Joan Wolcott Lane, appeal from this wrongful death/survival action, the grant of an exception of res judicata dismissing Defendant, Bobby Haley, Jr., and the grant of an exception of No Right of Action and/or No Cause of Action dismissing Defendant, Ranger Insurance Company. For the reasons stated herein, we reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On October 4, 1985, Kathryn Wolcott, a Louisiana resident, was riding as a passenger on a bus which was owned and operated by Trailways Lines, Inc. and driven by a Trailways Lines, Inc. employee, Bobby Haley, Jr. The bus was traveling from Shreveport, Louisiana, to Canada on a "fall foliage" tour, for which Mrs. Wolcott was acting as tour guide. The bus was involved in an accident while traveling through Illinois and Mrs. Wolcott sustained fatal injuries. On October 3, 1986, Mrs. Wolcott's children, Plaintiffs herein, filed a wrongful death/survival action against Trailways Lines, Inc. and Mr. Haley. On June 23, 1987, Trailways Lines, Inc. filed a Certificate of Amendment of Restated Certificate of Incorporation with the Secretary of State of Delaware, changing its name to TLI, Inc.
In early 1996, Plaintiffs added National Union Insurance Company ("National Union") and Ranger Insurance Company ("Ranger") as defendants on the theory that these companies provided liability insurance coverage for Trailways Lines, Inc. and Mr. Haley at the time of the October 4, 1985 accident. The parties do not dispute that any insurance policy naming Trailways Lines, Inc. as an insured would also cover as additional insureds any employee of Trailways Lines, Inc., such as Mr. Haley, pursuant to the respective policy's omnibus clause while the said policy was in full force and effect.
In July 1996, Plaintiffs settled for $30,000 with National Union and an entity named New Trails, Inc., one of National Union's named insureds, because it was disputed as to whether National Union insured Trailways Lines, Inc. and its employees at the time of the October 4, 1985 accident. The document, entitled "Receipt and Release," provided, in pertinent part, as follows:
[I acknowledge receipt of $30,000.00 from] National Union Fire Insurance Company of Pittsburgh, PA on behalf of its insured, New Trails, Inc., in full and complete compromise and satisfaction of any and all claims, causes of action, actions and demands of any nature whatsoever which I now have, or which I might hereafter have against National Union Fire Insurance Company of Pittsburgh, PA and New Trails, Inc., and any and all persons for whom either might be liable or responsible growing out of the accident which occurred on October 4, 1985. (Emphasis added.)
National Union was dismissed by judgment of the trial court on August 13, 1996. The judgment provided, in pertinent part, as follows:
IT IS HEREBY ORDERED that the demands of George M. Wolcott, John F. Wolcott, Janet W. Dickerson, Joan W. Lane and Holton J. Wolcott, Jr., plaintiffs against National Union Fire Insurance Company of Pittsburgh, PA, defendant, hereby is dismissed, with prejudice, with all rights reserved against any defendant not specifically dismissed herein. (Emphasis added.)
In June 1997, the trial court issued an opinion granting summary judgment in favor of Plaintiffs and against Ranger, holding that Ranger's policies provided coverage for this accident. The opinion, however, contemplated the signing of a final judgment on the qu
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