author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    TAXICAB INSURANCE STORE, LLC v. AMERICAN SERVICE INSURANCE COMPANY, INC., Regions Insurance, Inc., Michael Joseph Harrington, and Charlotte Louise Leblanc
    NO. 2017-CA-0004
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 12, 2017

      LARRY S. BANKSTON, JENNA H. LINN, BANKSTON & ASSOCIATES, LLC, 8708 Jefferson Hwy., Suite A, Baton Rouge, Louisiana 70809, Counsel for Plaintiff/Appellant
    LARRY FELDMAN, JR., VICKIE A. ELMER, MARK J. CHANEY III, McGLINCHEY STAFFORD, PLLC, 601 Poydras Street, Suite 1200, New Orleans, Louisiana 70130, Counsel for Defendant/Appellee, American Service Insurance, Inc.
    WILLIAM D. SHEA, ADAMS AND REESE, LLP, 450 Laurel Street, Suite 1900, Baton Rouge, Louisiana 70801, Counsel for Defendants/Appellees, Regions Insurance, Inc., Charlotte Louise Leblanc and Michael Joseph Harrington
    (Court composed of Chief Judge James F. McKay III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   JAMES F. MCKAY III, CHIEF JUDGE

| plaintiff, Taxicab Insurance Store, LLC (“TIS”)) seeks appellate review of the trial court’s September 20, 2016 judgment, granting the exceptions of nti cause of action and no right of action filed by American Service Insurance Company, Inc. (“ASIC”), Michael J. Harrington (“Harrington”), Charlotte Louise LeBlanc (“LeBlanc”), and Regions Insurance Inc. (“Regions”) (collectively referred to as “the defendants”), dismissing TIS’s action in its entirety, with prejudice. For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In 2011, TIS began operating as a producer for Imperial Fire and Casualty Insurance Company (“Imperial”), providing commercial automobile insurance policies to taxicab drivers in Louisiana. Thereafter, ASIC also began issuing insurance policies to taxicab drivers in the greater New Orleans area. Regions, Harrington, and Le-Blanc acted as producers for ASIC.

12TIS filed a petition for damages and a supplemental/amending petition against the defendants. Therein, TIS claims that the defendants were working together to solicit business from TIS’s customers by offering illegal insurance' policies at unapproved premium rates. The petition maintains that the defendants specifically marketed the illegal policies to TIS’s customers, representing that ASIC could offer lower rates and better coverage. TIS asserts that the defendants weré aware that the rates were not approved by the Insurance Commissioner, and that certain unapproved discounts and products were being offered to the taxicab insureds in violation of the law. TIS further alleges a significant loss of business as a result of the defendants’ actions.

The petition for damages, as amended, asserts the following eight counts, or causes of action, against the defendants: 1) tort; 2) fraud; 3) tortious interference with a contract; 4) tortious interference with a business relationship; 5) violations of the Louisiana Unfair Trade Practices Act (“LUTPA”), La. R.S. 51:1401, et seq.; 6) violations of the Louisiana Anti-Trust Act, La. R.S. 51:122 and 123; 7) unjust enrichment; and alternatively, 8) declaratory relief, asserting that La. R.S. 51:1406(1) is unconstitutional.

In response to TIS’s supplemental and amending petition, the defendants filed exceptions of no cause of action and no right of action, arguing, generally, |athat the alleged violations of the Insurance Code cannot support a private cause of action for damages because the Insurance Commissioner has exclusive jurisdiction to enforce the Insurance Code. More specifically, the defendants argued in support of the exceptions that: 1) TIS does not have a claim for tort, fraud, or unjust enrichment because it does not allege that the defendants made any representations or had any duty to TIS; 2) TIS does not have a tortious interference with a contract claim because there was no contract between TIS and the defendants; 3) TIS does not have a tortious interference with a business relationship claim because the petition fails to allege facts to show malice or ill-will or that the defendants prevented any party from dealing with TIS; 4) TIS does not have a LUTPA claim because such claims are subject to the exclusive jurisdiction of the Louisiana Insurance Commissioner; and 5) TIS does not have an anti-trust claim because it does not allege the existence of a horizontal or vertical agreement and does not allege facts that would support a monopoly claim.

The matter was heard on September 9, 2016. In a judgment dated September 20, 2016, the trial court granted the defendants’ exceptions of no cause of action and no right of action and dismissed the action in its entirety, with prejudice. TIS timely appealed.

On appeal, TIS sets forth eight assignments of error, asserting that the trial court erred in granting the exceptions, and in finding that TIS failed to set forth a Lcause and/or right of action against the defendants for: 1) tort, 2) fraud; 3) tor-tious interference with a contract; 4) tor-tious interference with a business relationship; 5) unfair trade practices; 6) antitrust violations; 7) unjust enrichment; and 8) declaratory relief concerning the constitutionality of La. R.S. 51:1406(1). For the reasons set forth below, we find no merit in these assignments of error.

LAW AND ANALYSIS

Standard of Review

In Zeigler v. Housing Authority of New Orleans, 2015-0626, pp. 4-5 (La. App. 4 Cir. 3/23/16), 192 So.3d 175, 178, this Court reiterated the standard of review regarding exceptions of no cause of action and no right of action, as follows:

“Exceptions of no cause of action present legal questions, and are reviewed under the de novo standard of review.” Phillips v. Gibbs, 2010-0175, p. 3 (La. App. 4 Cir. 5/21/10), 39 So.3d 795, 797. This exception is designed to test the legal sufficiency of a petition by determining whether a party is afforded a remedy in law based on the facts alleged in the pleading. Id., 2010-0175 at p. 3, 39 So.3d at 797-98. “All well-pleaded allegations of fact are accepted as true and correct, and all doubts .are resolved in favor of sufficiency of the petition so as to afford litigants their day in court.” Foti v. Holliday, 2009-0093, p. 5 (La. 10/30/09), 27 So.3d 813, 817. “The burden of demonstrating that a petition fails to state a cause of action is upon the mover.” Id., citing Ramey v. De Caire, 2003-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 119.
Likewise, “[pjeremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of iaw.” Fortier v. Hughes, 2009-0180, p. 2 (La. App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186. “The exception of no right of action tests whether the plaintiff has a real and actual interest in the action.” Weber v. Metro. Cmty. Hospice Found., Inc., 2013-0182, p. 4 (La. App. 4 Cir. 12/18/13), 131 So.3d 371, 374, citing La. C.C.P. art. 927(5). The function of the exception is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the lawsuit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015, p. 4 (La. 11/30/94), 646 So.2d 885, 888. “The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.” Indus. Companies, Inc. v. Durbin, 2002-0665, p. 12 (La. 1/28/03), 837 So.2d 1207, 1216.

Cause of Action!Count 1 (Tort)

TIS alleges that the defendants owed a duty to compete fairly and honestly and to comply with the rules prescribed by the Louisiana Insurance Code. La. R.S. 22:12 provides that “[n]o person shall be authorized to transact or shall transact a business of insurance in this state without complying with the provisions of this Code.” The petition alleges that the defendants breached their duty to comply with the state’s insurance regulations, claiming that the defendants, in issuing unlawful insurance contracts, intentionally violated the Insurance Code in order to commandeer business away from TIS.

The Insurance Commissioner . is charged with the enforcement of the Insurance Code. See La. R.S. 22:11. La. R.S. 22:13(A) lists the remedies for violations of the provisions of the Insurance Code, which includes penalties .assessed by the Commissioner. The Insurance Code, however, does not provide for a private right of action for violations. See Clausen v. Fidelity and Deposit Company of Maryland, 95-0504, p. 4 (La. App. 1 Cir. 8/4/95), 660 So.2d 83, 86.

In Louisiana, legal responsibility in tort is determined by application of a duty/risk analysis. This analysis requires the plaintiff to prove four distinct elements: (1) existence of a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) the breach is a cause in fact of damage; arid (4) actual damage was sustained by the plaintiff. Private Connection Property, Inc. v. Fox Cars, LLC, 2008-1129, p. 9 (La. App. 4 Cir. 2/10/09), 6 So.3d 866, 872 (citing Becnel v. Grodner, 2007-1041, p. 3 (La. App. 4 Cir. 4/2/08), 982 So.2d 891, 894).

In the present case, the only duty alleged to have been breached by the defendants is their violations of the Insurance Code. The petition does not assert a legal relationship between TIS and the defendants, and it fails to establish the existence of a duty owed to TIS. Thus, TIS’s tort claim fails as a matter of law.

Cause of Action/Count II (Fraud)

TIS alleges that the defendants committed fraud by knowingly issuing illegal policies to taxicab drivers, and by intentionally misrepresenting and/or suppressing the truth to the taxicab drivers regarding the policies. It is further alleged that this misrepresentation was done with the intention of obtaining an unjust advantage, while luring business away from TIS.

To state a cause of action for fraud, the following three elements must be alleged: “ ‘(1) a misrepresentation of material fact, (2) made with the intent to deceive, (3) causing justifiable reliance with resultant injury.’” Chapital v. Harry Kelleher & Co., Inc., 2013-1606, p. 13 (La. App. 4 Cir. 6/4/14), 144 So.3d 75, 86 (quoting Becnel, 2007-1041, p. 3, 982 So.2d at 894).

La. C.C. art. 1963 defines fraud as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” However, in order to find fraud from silence or suppression of the truth, there must exist a duty to speak or disclose information. 1100 S. Jefferson Davis Parkway, LLC v. Williams, 2014-1326, p. 7 (La. App. 4 Cir. 5/20/15), 165 So.3d 1211, 1218 (citing Becnel, 2007-1041, p. 4, 982 So.2d at 894).

17Here, it is evident that the fraud alleged in the petition is based on the defendants’ misrepresentations to the taxicab drivers, not to TIS. The petition sets forth no misrepresentations made directly toward TIS. Moreover, there are no allegations that TIS relied upon any representations made by the defendants or took any action in relation to the alleged misrepresentations. Accordingly, we find that the petition fails to state a 'cause of action in fraud.

Cause of Action/Count III (Tortious Interference with a Contract)

TIS argues that the defendants tortiously interfered with the contracts between TIS and approximately six hundred taxicab drivers. The petition alleges that the defendants solicited TIS’s insureds and offered them an illegally low'premium in order to damage TIS’s business. The petition further alleges that the defendants acted in a manner which they knew would be detrimental to TIS’s business interests.

In 1989, the Louisiana Supreme Court for the first time recognized a very limited cause of action for tortious interference with contract in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La. 1989). The Court in 9 to 5 Fashions held that a corporate officer has a duty to a third person who has a contractual relationship to the corporation not to intentionally cause the company to breach the contract. The Court further held that “[i]t is not our intention, however, to adopt whole and undigested the fully expanded common law doctrine of interference with contract ... [i]n the present case we recognize ,.. only a corporate officer’s duty to refrain from intentional and unjustified interference With the contractual relation between his employer and a third person.” Id. at 234.

In MD Care, Inc., v. Angelo, 95-2361, 95-2362, (La. App. 4 Cir. 3/20/96), 672 So.2d 969, this Court addressed the cause of action for intentional interference with a contract, as follows:

The Supreme Court has not expanded the holding of 9 to 5 Fashions but has reiterated its “resolve in that case to advance with care.” Great Southwest Fire Insurance Co. v. CNA Insurance Cos., 557 So.2d 966, 969 (La. 1990). Appellate courts generally have disallowed a cause of action for tortious interference with a contract outside the facts of 9 to 5 Fashions, See Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La. App. 3 Cir. 8/9/95), 661 So.2d 1027, 1033.
However, this Court has expressed a willingness to expand the cause uf action when the facts warrant. In Tallo v. Stroh Brewery Co., 544 So.2d 452 (La. App. 4th Cir.), writ den. 547 So.2d 355 (La.1989) this Court affirmed a dismissal for failure to state a cause of action where plaintiff alleged that the brewery company’s rejection of an application for change of control of a distributorship constituted intentional interference with the contract between plaintiff and the distributor. Noting that 9 to 5 Fashions refused to wholly adopt the common law tort of interference with contract rights which consists of a “rather broad and undefined tort in which no specific conduct is prescribed ‘[sic],” this Court examined whether the defendants owed a duty to the plaintiff. Tallo held defendants owed no duty to 'plaintiff and plaintiff did not assert a cause of action. Tallo, 544 So.2d at 455. A concurrence stated the exception -in 9 to 5 Fashions is limited. Id.
In Neel v. Citrus Lands of Louisiana, Inc., 629 So.2d 1299 (La. App. 4th Cir. 1993), plaintiff alleged the defendant wrongfully denied access to defendant’s property in violation of a mineral lease between defendant and plaintiff’s employer and was liable for intentional interference, with plaintiffs employment relationship. The trial court granted defendant’s exception of no cause of action, but this Court reversed:
(T)here is the strong implication [in 9 to 5 Fashions] that the court recognized that the Louisiana law of intentional interference with contractual relationships should be far broader than the narrow facts before the court in 9 to 5 Fashions, although less broad than the amorphous law of some jurisdictions that seemed insusceptible of definition and reasonable limitation.
* * sh * * *
| ¡¡If Mr. Neel can establish that Citrus Lands .had a -duty to allow him to go on the land leased to [Neel’s employer], then he may well be able to prove that Citrus Lands violated that duty and is liable for the consequent damages such as the loss of’his job.
Neel v. Citrus Lands of Louisiana, Inc., 629 So.2d at 1301.
The plaintiff in Durand v. McGaw, 635 So.2d 409 claimed the defendant’s complaints to plaintiffs employer resulted in the plaintiffs-discharge from his employment and he alleged negligent and intentional interference with the contract. The trial court dismissed the claim on an exception of no cause of action, and this Court affirmed:
The facts' as alleged in' this case do not warrant expansion here [of 9 to 5 Fashions]. Considering .the basic principles underlying Louisiana tort law, as well as “modern empirical considerations and’the objectives of delictual law,” 9 to 5 Fashions, Inc. v. Spurney, supra at 231, defendants owed no obligation to plaintiff as a third person employee ... to refrain from expressing an opinion to (plaintiffs employer) concerning the nature and scope of the employee’s work. The. facts alleged do not constitute fault, and plaintiffs petition fails to state a cause of action for intentional interference with contract. ¡
Durand v. McGaw, 635 So.2d at 412.
Tallo, Neel, and Durand each examined whether the facts warranted expansion of the cause of action in 9 to 5 Fashions, The Court recognized the cause of action is based on fault, and the determinative factor in each case' was whether the defendant owed the plaintiff a duty, the breach of which might constitute intentional interference,with,a contract.

MD Care, Inc., 95-2361, 95-2362, pp. 5-7, 672 So.2d at 972-73.

Based on the jurisprudence, it is clear that before an action for tortious interference-with a contract .will be permitted, the plaintiff must identify a duty existing between it and the alleged tortfeasor, the violation of which would give rise to delictual liability. In the present case, as discussed hereinabove, TIS has not identified any such duty owed by the defendants. Therefore, TIS has failed to state a claim for tortious interference with contract upon which relief can be granted.

UnCause of Action/Count TV (Tortious Interference with a Business Relationship)

The petition alleges that the defendants improperly influenced certain taxicab drivers to cease business with TIS by intentionally misrepresenting the legality of the coverage provided under the ASIC policies and by offering the taxicab drivers an illegally low premium. The petition further alleges that the defendants acted with actual malice, deliberately intending to unlawfully damage TIS’s business.

The defendants contend that TIS failed to state a claim for tortious interference with a business relationship. They argue that TIS has failed to plead specific facts to support a finding that the defendants prevented TIS from dealing with third parties or that the defendants acted with actual malice.

Discussing the cause of action for tor-tious interference with a business relationship, this Court has stated:

Although this cause of action has an ancient vintage, Louisiana jurisprudence has viewed it with disfavor. Louisiana courts have limited this cause of action by imposing a malice element, which requires that the plaintiff show the defendant acted with actual malice. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 602 (6th Cir.1981). “Although its meaning is not perfectly clear, the malice element seems to require a showing of spite or ill will, which is difficult (if not impossible) to prove in most commercial cases in which conduct is driven by the profit motive, not by bad feelings. In fact, there appear to be no reported cases in which anyone actually has been held liable for the tort.” George De-negre, Jr., et al., Tortious Interference and Unfair Trade Claims: Louisiana’s Elusive Remedies for Business Interference, 45 Loy. L.Rev. 396, 401 (1999). “Simply put, in most cases in which a corporation is acting to maximize profits-rather than to harm another business-it will be difficult for a plaintiff to produce evidence of bad faith or malicious intent.” Id. at 404.

JCD Mktg. Co. v. Bass Hotels and Resorts, Inc., 2001-1096, p. 11 (La. App. 4 Cir. 3/6/02), 812 So.2d 834, 841.

| nIn Bogues v. Louisiana Energy Consultants, Inc., 46,434, p. 11 (La. App. 2 Cir. 8/10/11), 71 So.3d 1128, 1134-35 (citing our holding in JCD Mktg.), the Second Circuit Court explained:

The cause of action for tortious interference with business derives from La. C.C. art. 2315. Tortious interference is based on the principle that the right to influence others not to enter into business relationships with others is not absolute. Junior Money Bags, Ltd. [v. Segal, 970 F.2d 1 (5th Cir.1992)], citing Ustica Enterprises, Inc. v. Costello, 434 So.2d 137 (La. App. 5th Cir.1983). Louisiana law protects the businessman from “malicious and wanton interference,” though it permits interferences designed to protect legitimate interests of the actor. Dussouy [v. Gulf Coast Inv. Corp., 660 F.2d 594 (5th Cir.1981)]. A plaintiff bringing a claim for tortious interference with business must ultimately show “by a preponderance of the evidence that the defendant improperly influenced others not to deal with the plaintiff.” Junior Money Bags, Ltd., supra. Significantly, it is not enough to allege that a defendant’s actions affected plaintiffs business interests; the plaintiff must allege that the defendant actually prevented the plaintiff from dealing with a third party. TJstica, supra.

A review of the petition in the present case reveals that TIS has not advanced any factual allegations that the defendants influenced the taxicab drivers not to deal with TIS or that the defendants actually prevented TIS from dealing with the taxicab drivers. The crux of the allegations made by TIS is that the defendants misrepresented the terms of the policies to the taxicab drivers and offered policies at a lower rate (albeit, an unapproved rate) in order to gain their business and maximize profits. There are no allegations that the defendants’ conduct was driven by ill will or malice toward TIS. Thus, we must conclude that the allegations set forth in the petition do not sufficiently state a cause of aetion for tortious interference with a business relationship as contemplated by the jurisprudence.

Cause of Action/Count V (Unfair Trade Practices)

1 12The petition alleges that the defendants violated LUTPA by acting in concert to unlawfully damage TIS’s business. Defendants counter, arguing that claims under the jurisdiction of the Commissioner of Insurance are exempt. The trial court accepted this argument and dismissed the LUTPA claims. We find no error in that ruling.

LUTPA is set out in La. R.S. 51:1401-1418 and provides at Sec. 51:1405(A) that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” However, La. R.S. 51:1406(1) specifically provides that the statute shall not apply to “actions or transactions subject to the jurisdiction of ... the insurance commissioner.”

La. R.S. 22:2(A)(1) states that “[i]t shall be the duty of the commissioner of insurance to administer the provisions of [the Louisiana Insurance Code].” La. R.S. 22:1961 states:

The purpose of this Part is to regulate the trade practices in the business of insurance, in accordance with the intent of congress as expressed in Public Law 15-79th Congress, by defining or providing for the determination of all acts, methods, and practices which constitute unfair methods of competition and unfair or deceptive acts and practices in this state, and to prohibit the same.

La. R.S. 22:1967 states that “[t]he commissioner of insurance shall have power to examine and investigate the affairs of every person engaged in the business of insurance ... in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by this Part.”

La. R.S. 22:1964, in pertinent part, provides:

The following are declared to be unfair methods of competition and unfair or deceptive acts or practices in the business of insurance:
hs(l) Misrepresentations and false advertising of insurance policies. Making, issuing, circulating, or causing to be made, issued, or circulated any estimate, illustration, circular or statement, sales presentation, omission, or comparison that does any of the following:
(a) Misrepresents the benefits, advantages, conditions, or terms of any policy issued or to be issued.
(b) Misrepresents the dividends or share of the surplus to be received on any policy.
(c) Makes a false or misleading statement as to the dividends or share of surplus previously paid on similar policies.
(d) Makes any misleading representation or any misrepresentation as to the financial condition of any insurer, or as to the legal reserve system upon which any life insurer operates.
(e) Misrepresents to any policyholder insured by any insurer for the purpose of inducing or tending to induce such policyholder to lapse, forfeit, or surrender his insurance.
(f) Uses any name or title of any policy or class of policies misrepresenting the true nature thereof.
(g) Makes a misrepresentation for the purpose of effecting a pledge or assignment or effecting a loan against any policy.
(h) Misrepresents any policy as being shares of stock.
(2) False information and advertising generally. Making, publishing, disseminating, circulating, or placing before the public, or causing, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, an advertisement, announcement or statement containing any assertion, representation or statement with respect to the business of insurance or with respect to any person in the conduct of his insurance business, which is untrue, deceptive or misleading.

The LUTPA claims asserted against the defendants can clearly be characterized as misrepresentation, false information and/or false advertising in the issuance of the policies, as set forth in La. R.S. 22:1964. As such, these claims fall within the jurisdiction of the Insurance Commissioner. In light of the clear | ^pronouncement of La. R.S. 51:1406, we find that the actions taken by the defendants in issuing the taxicab insurance policies are specifically exempted from LUTPA.

Cause of Action/Count VI (Anti-Trust Violations)

TIS has alleged violations of both the Louisiana antitrust statute, La. R.S. 51:122, and the Louisiana anti-monopoly statute, La. R.S. 51:123. La. R.S. 51:122(A) provides that “[ejvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.” La. R.S. 51:123 provides, in part, that “[njo person shall monopolize, or attempt to monopolize, or combine, or conspire with any other person to monopolize any part of the trade or commerce within this state.”

The petition alleges that the defendants, by knowingly utilizing illegal rates, priced their products in an unfair manner with an object to eliminate or retard competition and thereby illegally gain and exercise control over prices in the metropolitan New Orleans taxicab insurance market. The petition further alleges that the defendants conspired to eliminate TIS as a competitor and to acquire a monopoly in the taxicab insurance market.

Unreasonable, Restraint of Trade (La. R.S. 51:122)

As the First Circuit Court set forth in Van Hoose v. Gravois, 2011-0976, pp. 7-8 (La. App. 1 Cir. 7/7/11), 70 So.3d 1017, 1022:

The Louisiana antitrust statute provides that “[ejvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.” La. R.S. 51:122(A). The federal and state antitrust laws were intended to be sweeping in breadth, encompassing every conspiracy, contract, or combination that restrains trade. Louisiana Power & Light Co. v. United Gas Pipe Line Co., 493 So.2d 1149, 1154-55 & n. 12 (La. 1986). Not every business arrangement that restrains trade in some manner is illegal, however. The first step in analyzing an agreement l1Bto restrain trade is to determine whether it should be categorized as horizontal or vertical. A horizontal conspiracy is an agreement between competitors that restrains trade at the same level of distribution, and such agreements are generally considered “per se” violations of antitrust law. Plaquemine Marine, Inc., 859 So.2d at 117; Southern Tool & Supply, Inc., 862 So.2d at 280. A vertical restraint is imposed by persons at different levels of distribution, usually by one higher up in the distribution chain' than the party restrained. When a vertical conspiracy is alleged, plaintiffs must show that the restraint of trade violates the “rule of reason.” Plaquemine Marine, Inc., 859 So.2d at 118.
The rule of reason analysis under both federal and Louisiana law requires proof of three elements: that the defendants (1) engaged in a conspiracy (2) that restrained trade or injured competition (3) in a particular market. Abraham v. Richland Parish Hosp. Service Dist. 1-B, 41,141 (La. App. 2d Cir. 8/23/06), 938 So.2d 1163, 1172, writ denied, 2006-2534 (La. 1/8/07), 948 So.2d 124.

Here, the petition fails to allege that either a horizontal or vertical conspiracy existed. The petition alleges that TIS and the defendants are- competitors. It does not allege,that the defendants are competitors. The horizontal conspiracy test requires that there be an agreement between competitors that restrains trade at the same level of distribution. Thus, there is no horizontal conspiracy alleged here. Additionally, the petition does not allege that TIS is in the distribution chain for the policies issued by the defendants. To the contrary, TIS acts as a producer for a totally different insurer. Accordingly, the petition does not allege a vertical restraint of trade. In sum, we find that TIS has not stated a cause of action for a restraint of trade violation under La. R.S. 51:122.

Monopolization (La. R.S. 51:123)'

To establish a cause of action for monopoly, the pleadings must state facts sufficient to show that the defendant:. (1) possessed monopoly power in a clearly defined economic and geographic market (the relevant market); and (2) that the defendant had the specific .purpose or intent to exercise or maintain that, power, as 11fidistinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. Abraham v. Richland Parish Hosp. Serv. Dist. 1-B, 39,841, p. 6 (La. App. 2 Cir. 2/8/05), 894 So.2d 1229, 1234 (citing Plaquemine Marine, Inc. v. Mercury Marine, 2003-1036, p. 12 (La. App. 1 Cir. 7/25/03), 859 So.2d 110, 119).

“Monopoly power is the ability to. control prices or to exclude competition from the market. Market power, or the power to restrict competition in a particular market, may occur because of the seller’s high market share in a particular, area, or when the seller offers a unique product that competitors are not able to offer.” HPC Biologicals, Inc. v. UnitedHealthcare of La., Inc., 2016-585, p. 17 (La. App. 1 Cir. 5/26/16), 194 So.3d 784, 798 (citing Plaquemine Marine, Inc., 2003-1036, p. 12, 859 So.2d at 119-20).

“The plaintiff charging attempted monopolization must prove a dangerous probability of actual monopolization of a particular market and specific intent to monopolize.” Plaquemine Marine, Inc., 2003-1036, p. 12, 859 So.2d at 119 (citing Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459, 113 S.Ct. 884, 892, 122 L.Ed.2d 247 (1993)).

In this case, TIS alleges that defendants attempted to acquire monopoly-power in the New Orleans metropolitan area commercial taxicab liability insurance market. It is further alleged that given their dominant market power, the defendants possessed the power to control prices and exclude competition. These allegations are mere conclusory statements of fact. The petition fails to sufficiently set forth facts to support the allegations that the defendants possessed monopoly power, a necessary element of its cause of action under La. R.S. 51:123. Moreover, TIS does not allege that the defendants had a specific intent to | ^monopolize and a dangerous probability of success. Accordingly, we find that the petition fails to state a cause of action for anti-trust violations.

Cause of Action/Count VII (Unjust Enrichment)

The petition alleges that the defendants were unjustly enriched and TIS was impoverished as a result of the defendants’ issuing and producing taxicab insurance with illegal rates.

The jurisprudence has identified the following five elements required to establish an unjust enrichment claim: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and resulting impoverishment; (4) an absence of “justification” or “cause” for the enrichment and impoverishment; and (5) no other remedy at law available to plaintiff. JCD Marketing Co. 2001-1096, p. 13, 812 So.2d at 842 (citing Baker v. Maclay Properties Co., 94-1529, p. 18 (La. 1/17/95), 648 So.2d 888, 897). The Legislature has codified unjust enrichment in La. C.C. art. 2298, which provides: “[a] person who has been enriched without cause at the expense of another person is bound to compensate that person.” Article 2298 further provides that “[t]he remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or ■ declares a contrary rule.”

The Supreme Court, in discussing the nature of a claim for unjust enrichment, has explained:

There is a general concept of quasi contractual obligations; it is a concept based upon the principle that where there is an unjust enrichment of one at the expense or impoverishment of another, then the value of that enrichment or else, in some cases, the amount of the impoverishment must be restituted. Pla-niol, Traite Elementaire De Droit Civil, T. 2, nO 812, nO 813 (8th ed. 1939). (footnote omitted).
Under this general theory of quasi contractual obligations founded upon an unjust enrichment we find the civil law action De in | 1srem verso. See Nicholas, Unjustified Enrichment in Civil Law, Part I, 36 Tul.L.Rev. 605 (1962), Part II, 37 Tul.L.Rev. 49 (1962). The Action de in rem verso, although recognized by this Court long ago, was not treated definitively and was only applied in the two cases to which we referred above. Garland v. Scott’s Estate, 15 La.Ann. 143 (1860); Payne & Harrison v. Scott, 14 La.Ann. 760 (1859).
The action, however, has been well developed in France, influenced in large measure by the French Civil Code articles from which our own are copied. See Nicholas, supra. Nicholas says: ‘Among the essentials of the civil law remedy are its generality and its corrective or supplementary character.’
An early statement of the Actio de in rem verso is to be found in Patureau-Miran v. Boudier, Cour de Cassation (Ch. req.) June 15, 1892, (1893) S.I. 281, (1892) D.I. 596 (Fr.). Speaking of the derivation and nature of the action, the Court said:
* * It derives from the principle of equity which forbids enrichment at the expense of another, and since it has been regulated by no provision of the enacted law, its exercise is subject to no precise rules; it is sufficient that the plaintiff allege and undertake to prove that as a result of some sacrifice or act on his part he has procured an advantage to the defendant.’

Minyard v. Curtis Products, Inc., 251 La. 624, 650-51, 205 So.2d 422, 432 (La. 1967).

It is evident from the record that there was no business relationship of any kind between TIS and the defendants; no quasi-contractual obligation existed. More importantly, the petition does not allege that an impoverishment occurred as a result of any sacrifice or act on the part of TIS. The fact that the defendants’ business practices may have detracted business away from TIS, a competitor, does not give rise to a cause of action for unjust enrichment.

Cause of Action!Count VIII (Declaratory Relief, La. R.S. 51:1406(A) is unconstitutional)

In the alternative, it is asserted that if the court finds no right of action under LUTPA, then La. R.S. 51:1406 is unconstitutional as it deprives TIS of due process l^of law (La. Const. Art. 1 § 2) and access to courts (La. Const. Art. 1 § 22). Specifically, it is alleged that the statute denies TIS the right to bring a claim for damages as a result of unfair trade practices solely because it is a member of the insurance industry.

Regarding constitutional challenges to state statutes, the Supreme Court in State v. Brenan, 99-2291, p. 3 (La. 5/16/00), 772 So.2d 64, 67, stated:

It is well established that statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Griffin, 495 So.2d 1306, 1308 (La.1986) (citations omitted). Because a state statute is presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. The attack will fail if the court determines that a reasonable relationship between the law and the promotion or protection of a public good, such as health, safety or welfare exists. Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515 (La. 1983).

Due Process:

La. Const. Art. 1 § 2 guarantees freedom from the deprivation of life, liberty or property without due process of law. TIS argues that it is deprived of a vested property right, which is protected by the guarantee of due process. The defendants counter, arguing that TIS never had a vested property right to such a claim. Thus, there can be no due process violation by the enactment of La. R.S. 51:1406(1). We agree.

It is well recognized that “there is no fundamental due process right to sue in tort or to recover damages because of the tortious acts of another.” Progressive Security Ins. Co. v. Foster, 97-2985, pp. 23-24 (La. 4/23/98), 711 So.2d 675, 689.

In Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381, 1387 (La. 1978), the Supreme Court explained:

| go Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. See Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 78 L.Ed. 342 (1933); Pritchard v. Norton, 106 U.S. 124, 132, 1 S.Ct. 102, 27 L.Ed. 104 (1882). However, where the injury has not yet occurred and the cause of action has not yet vested, the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Our jurisprudence has recognized the validity of legislative regulation of causes of action, including replacement and even abolition, that one person may have against another for personal injuries. See Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); See also Heirs of Fruge v. Blood Services, 506 F.2d 841 (5th Cir. 1975).

Here, the Louisiana Legislature amended Section 1406 to restrict causes of action under LUTPA by exempting “actions or transactions subject to the jurisdiction of ... the insurance commissioner.” This restriction is consistent with the provisions of La. R.S. 22:1961, et seq., cited herein-above, which provide that unfair trade practices in the insurance industry are exclusively governed by the Insurance Code and enforced by the Insurance Commissioner. Thus, we do not find that the Legislature acted arbitrarily in enacting Section 1406.

Access to the Courts:

La. Const. Art. I, § 22 provides that “[a] courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered -without denial, partiality, or unreasonable delay, for injury to him in his person, property,- reputation, or other rights.”

In M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371, p. 32 (La. 7/1/08), 998 So.2d 16, 37 (citing Crier v. Whitecloud, 496 So.2d 305 (La. 1986)), the Court explained that in adopting Article I, § 22 of the Louisiana Constitution, “the Constitutional Convention did not intend to limit the Legislature’s ability to restrict | ai causes of action. The access to courts clause does not ‘prohibit legislative restriction of legal remedies.’ Instead, the clause ‘operates only to provide remedies which are fashioned by the legislature.’ ” (internal citations omitted).

The Court further stated in Crier that “[i]n finding that the right to recover in tort is not a fundamental right, our court has noted that ‘[w]here access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machinery on any system or classification which is not totally arbitrary.’” Crier, 496 So.2d at 310 (quoting Bazley v. Tortorich, 397 So.2d 475, 485 (La. 1981) and Everett v. Goldman, 359 So.2d 1256 (La. 1978)).

As previously explained herein, pursuant to the enactment of La. R.S. 51:1406(1), TIS does not have a private right of action under LUTPA. Therefore, Art. 1§ 22 of the Louisiana Constitution affords no substantive relief in the present case.

CONCLUSION

For the foregoing reasons, we find no error on the part of the trial court in granting the defendants’ exceptions of no cause of action and no right of action, dismissing TIS’ claims with prejudice. Accordingly, we affirm.

AFFIRMED

      . TIS filed the supplemental and amending petition in response to a February 25, 2016 judgment, which granted the defendants’ exceptions of no cause of action, no right of action; and vagueness; and granted TIS an opportunity to amend its petition.

      . Prior to filing the petition for damages, TIS notified the Louisiana ‘Department of Insurance of the defendants’ alleged illegal actions.' Some regulatory actions were taken against the defendants, the details of which are not pertinent to this appeal.

      . Before considering the merits of this appeal, we reviewed the wording of the trial court judgment and determined that it contains the decretal language necessary to be a final and appealable judgment.


source: Caselaw Access Project

author: Judge Terri F. Love

license: Public Domain

text:
    Federico Espinoza MARTINEZ v. Jaroslav RAMES/World of Taste, LLC
    NO. 2016-CA-1312
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 12, 2017

      Cesar R. Burgos, Robert J. Daigre, Gabriel 0. Mondino, George M. McGregor, BURGOS & ASSOCIATES, L.L.C., 3585 Canal Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT, FEDERICO ESPINOZA MARTINEZ
    Eric 0. Person, ATTORNEY AT LAW, 1539 Jackson Avenue, Suite 100, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE, JAROSLAV RAMES/WORLD OF TASTE, LLC
    (Court composed of Chief Judge James F. McKay III, Judge Terri F, Love, Judge Rosemary Ledet)
   Judge Terri F. Love

|! This appeal arises from injuries plaintiff received when lowering a washer/dryer combination unit from a second floor apartment for defendant. Plaintiff filed a claim in workers’ compensation court contending that he was owed medical expenses and wages that he was unable to earn as a result of his injuries. The workers’ compensation court found that plaintiff was not entitled to damages because he was an independent contractor. Plaintiff appeals contending that even if he was an independent contractor, the manual labor exception made him eligible for workers’ compensation benefits.

We find that the workers’ compensation court erred by finding that plaintiff was not entitled to benefits because he was an independent contractor. Independent contractors may receive workers’ compensation benefits if they perform manual labor for a substantial amount of time and the labor is part of the principal’s trade or business. As such, in the interest of justice, we vacate the workers’ compensation court’s judgment and remand the matter for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Federico Espinoza Martinez was hired to perform work for Jarislov Rames. | gMr. Martinez was lowering a washer/dryer combination unit from a second floor apartment with the help of four other people. Mr. Martinez testified that he received a laceration on his hand when one of the cords used to lower the unit “just busted or I don’t know exactly how it happened,” causing the unit to “come down all of the [sic] sudden.” He and the others completed lowering the unit and then he informed Mr. Rames of his injury. Mr. Rames drove Mr. Martinez to the emergency room and paid the initial emergency room fee of $500 to ensure Mr. Martinez received treatment. Mr. Martinez’s laceration required stitches. When Mr. Martinez arrived to collect his pay, Mr. Rames deducted a portion of the $500 emergency room fee from Mr. Martinez’s earnings. Mr. Rames informed Mr. Martinez that he would deduct the remainder of the fee from future earnings. Mr. Martinez did not speak to Mr. Rames after the reduction of his pay.

Mr. Martinez then filed á Disputed Claim for Compensation contending that Mr. Rames owed him workers’ compensation benefits as a result of his injury. The workers’ compensation court conducted a hearing and found that Mr. Martinez was not an employee of Mr. Rames. The workers’ compensation court further found that Mr. Martinez was an independent contractor and was, therefore not entitled to workers’ compensation benefits. Mr. Martinez’s appeal followed.- • ,

Mr. Martinez asserts that the trial court erred by failing to apply the manual labor exception to the independent contractor doctrine.

STANDARD OF REVIEW

Appellate courts review workers’ compensation cases using the manifest error—clearly wrong standard of review. Chaisson v. Louisiana Rock Monsters, LLC, 13-1423, p. 3 (La. App. 4 Cir. 4/2/14), 140 So.3d 55, 57. “In applying the manifest error-clearly wrong standard of review, the appellate court must not determine whether the trier of fact was right or wrong, but only whether the factfinder’s conclusion was a reasonable one.” .Id. A choice between two permissible views of the evidence cannot be wrong. Id. “Thus, ‘if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’” Id., quoting Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La. 7/1/97), 696 So.2d 551, 556.

However, “[w]hen legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo, rather than the manifest error, standard of review applies.” Baker v. Harrah’s, 15-0229, pp. 6-7 (La. App. 4 Cir. 3/9/16), 190 So.3d 379, 386, writ denied, 16-0659 (La. 5/27/16), 192 So.3d 743. “Likewise, interpretation of statutes pertaining to workers’ compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct.” Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp., 11-0179, p. 3 (La. App. 4 Cir. 6/29/11), 70 So.3d 988, 990.

EMPLOYMENT STATUS

“The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.” Tate v. Progressive Sec. Ins. Co., 08-0950, p. 2 (La. App. 4 Cir. 1/28/09), 4 So.3d 915, 916.

The Louisiana' Supreme Court has developed the following factors to help determine whether an individual is an employee or an independent contractor:
“(1) there is a valid contract between the parties; (2) the work being done is of an independent nature . such that the | contractor may employ non-exclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according, to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.”

Chaisson, 13-1423, pp. 3-4, 140 So.3d at 57-58(quoting Hickman v. S. Pac. Transp. Co., 262 La. 102, 262 So.2d 385 (1972)). “The ‘essence of the employer-employee relationship is the right to control.’ ” Chaisson, 13-1423, p. 4, 140 So.3d at 58 (quoting Hillman v. Comm-Care, Inc., 01-1140, p. 8 (La. 1/15/02), 805 So.2d 1157, 1162). “The primary factors evidencing the right to control are 1) selection and engagement, 2) payment of wages, 3) power of dismissal and 4) power of control,’ ” Id. Not one factor alone is determinative. Chaisson, 13-1423, p. 4, 140 So.3d at 58. “[T]he court must consider the totality of the circumstances.” Id.

La. R.S. 23:1021(7) defines an independent contractor as:

any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual lábor by him in carrying out the terms | of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including -fueling, driving,- connecting and disconnecting electrical lines and air hoses, hooking and' unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.

|5(emphasis added). The workers’ compensation court judge found that Mr. Martinez was not entitled to benefits because he was an independent contractor. However, he erred by concluding the analysis without further examination.

MANUAL LABOR EXCEPTION

Generally, independent contractors are not entitled :to workers’ compensation benefits. However, the Louisiana Legislature outlined an exception for manual labor contained in La. R.S; 23:1021(7).' An independent contractor may be covered by the manual labor exception if he demonstrates “that a substantial part of his work time is spent in manual labor- in carrying out the terms of .his contract with the principal and the work performed by him is part of the principal’s trade business or occupation.” Maldonado-Mejia v. Eversound Kitchen & Bath, LLC, 15-0859, p. 6 (La. App. 4 Cir. 4/20/16), 194 So.3d 1136, 1140 (emphasis in original), writ denied, 16-0963 (La. 9/6/16), 205 So.3d 914.

' “The jurisprudence has uniformly defined ‘manual labor’ as work where the ‘physical’ element predominated over the ‘mental’ element.” Riles v. Truitt Jones Const., 94-1224, p. 10 (La. 1/17/95), 648 So.2d 1296, 1300. “Even those jobs requiring skill fit within the definition of manual labor.” Id., 94-1224, p. 8, 648 So.2d at 1299. This Court previously found that the work of a skilled carpenter was manual labor. Steinfelds v. Villarubia, 10-0975, p. 9 (La. App. 4 Cir. 12/15/10), 53 So.3d 1275, 1281. The Louisiana Supreme Court also created the following list of various jobs exemplifying manual labor: car transporter, car mechanic, skilled carpenter, skilled welder, siding mechanic,- house painter, and -some supervisors. See Riles, 94-1224, pp. 8-9, 648 So.2d at 1299-1300. The Court further explained that “[s]kill affects the quality of any work, and it is acquired through experience and innate ability,” Id., 94-1224, p. 9, 648 So.2d at 1300. “Skill can be a function of both physical labor' and mental work.” Id. The Court reasoned • that “a person should not be precluded from receiving worker’s compensation coverage solely because his physical effort is skilled and therefore superior to the effort of other workers.” Id. Finally, the Court stated that “[i]t is the hands-on feature of labor combined with the strenuous quality of the work which determines whether a task is manual or not.” Id., 94-1224,p. 10, 648 So.2d at 1300.

We find that the workers’ compensation court judge erred by failing to consider whether Mr. Martinez’s work fell within the manual labor exception.

Substantial Portion

Once a workers’ compensation court finds that the manual labor exception applies, the court must then determine whether the claimant spent a substantial portion of his work time performing same. “This term has been liberally construed, and it is not a mathematical formulation.” Riles, 94-1224, p. 10, 648 So.2d at 1300. “While in some legal senses ‘substantial’ indeed has the signification of the larger part, such as in ‘substantial compliance’, legally the words ‘substantial part’ also are used not as a term of mathematical precision, but also so as to mean the converse of insubstantial or immaterial.” Welch v. Newport Indus., Inc., 86 So.2d 704, 706 (La. App. 1st Cir. 1956).

Trade, Business, or Occupation

Lastly, if the claimant performs manual labor for a substantial amount of time, he is entitled to workers’ compensation benefits if his work was part of the principal’s trade, business, or occupation. “La. R.S. 23:1061(A)(1), as last amended in 1997, provides that ‘work shall be considered part of the principal’s trade, business, or occupation if it is an. integral part of or essential to the ability oH7 the principal to generate that individual principal’s goods, products, or services.’” Moldonado-Mejia, 15-0859, p. 7, 194 So.3d at 1141 (quoting La. R.S. 23:1061(A)(1)). These terms have been interpreted liberally. Maldonado-Mejia, 15-0859, pp. 7-8, 194 So.3d at 1141. The issue “is a factual issue which must be determined under the circumstances of each case.” Lushute v. Diesi, 354 So.2d 179, 183 (La. 1977). “It is generally recognized that the definition provided in the 1997 amendment to La. R.S. 23:1061 mandated a more liberal interpretation of the statutory employer relationship.” Steinfelds, 10-0975, p. 10, 53 So.3d at 1282.

Given the above requirements to receive workers’ compensation benefits as an independent contractor, we find that the workers’ compensation court erred by failing to examine whether Mr. Martinez was entitled to benefits under the manual labor exception.

REMAND

The Louisiana Supreme Court found that “[t]he authority for an appellate court to remand a case to the trial court for proper consideration, where it is necessary to reach a just decision and to prevent a miscarriage of justice, is conferred by La. C.C.P. art. 2164.” Wegener v. Lafayette Ins. Co., 10-0810, 10-0811 (La. 3/15/11), 60 So.3d 1220, 1233-34. “Whether a particular case should be remanded is a matter which is vested largely within the court’s discretion and depends upon the circumstances of the case.” Wegener, 10-0810, 10-0811, p. 20, 60 So.3d at 1234. “[I]t is also true that, within reasonable limits, the plaintiff in a compensation case should be accorded the fullest opportunity to establish his claim in order to avoid injustice.” Williams v. New Orleans Paper Box Co., 185 So.2d 109, 113 (La. App. 4th Cir. 1966).

The workers’ compensation court ended the analysis of whether Mr. IsMartinez was entitled to workers’ compensation benefits prematurely. Having found that Mr. Martinez was an independent contractor, the workers’ compensation court judge was then required to examine whether Mr. Martinez was engaged in manual labor for a substantial amount of time that was also a part of Mr. Rames’ trade or business. The entitlement to workers’ compensation benefits is the sole component of Mr. Martinez’s case. Given the specific facts and circumstances in this case, we find that a remand is required. Like the Louisiana Supreme Court in Weg-ener, we find that “the interest of justice would be best served by remanding this case for a new trial.” Wegener, 10-0810, 10-0811, p. 20, 60 So.3d at 1234. Accordingly, the judgment of the workers’ compensation court is vacated, and the matter is remanded for further proceedings consistent with this opinion.

DECREE

For the above-mentioned reasons, we find that the workers’ compensation court erred by prematurely concluding its analysis with the determination that Mr. Martinez was an independent contractor and not entitled to workers’ compensation benefits. As such, the workers’ compensation court’s judgment is vacated, and the matter is remanded for further proceedings consistent with this opinion.

VACATED AND REMANDED

      . Mr. Martinez does not challenge the workers’ compensation court judge’s finding that he was an independent contractor.


author: JUDGE SANDRA CABRINA JENKINS

text:
    Stuart H. SMITH, Rodney Stephens, David A. Veazey, Guadalupe Gamez, and Neal Laney v. CITY OF NEW ORLEANS, THROUGH ITS DIRECTOR OF DEPARTMENT OF PUBLIC WORKS, John H. Shires, Parking Enforcement Officers for Unit 10, Beat 100 (P. Harris, Badge 139) (Thomas, Badges 103) and (C. Wiliam, Badge 78), Director of Department of Safety and Permits, Michael Centineo, New Orleans City Planning Commission, Vieux Carre Commission, Through its Director, Larry P. Hesdorfer, Parking Solutions, LLC., and Standard Parking Corporation
    NO. 2016-CA-1139
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 12, 2017

      Stephen B. Murray, Sr., Art M. Murray, Jessica Wittmer Hayes, MURRAY LAW FIRM, 650 Poydras Street, Suite 2150, New Orleans, LA 70130 AND Salvador I. Bivalacqua, Scott M. Galante, GALANTE & BIVALACQUA, LLC, 650 Poydras Street, Suite 2015, New Orleans, LA 70130 AND Barry J. Cooper, Jr., COOPER LAW FIRM, L.L.C., 365 Canal Street, Suite 2850, New Orleans, LA 70130, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Wayne J. Lee, Michael Q. Walshe, Jr., Heather S. Lonian, STONE PIGMAN WALTHER WITTMANN, LLC, 546 Car-ondelet Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPEL-LEE ■■
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

I tin this certified class action, Stuart H. Smith, Rodney Stephens, David A. Veazy, Guadalupe Gamez, and Neal'Laney (collectively, .“Plaintiffs”) appeal the trial court’s Juñe 13, 2016 judgment granting in part the motion for summary judgment filed by defendant ACS State & Local Solutions, Inc. (“ACS”), and dismissing Plaintiffs’ conversion claims against ACS, with prejudice.

For the reasons that follow, we conclude that this partial summary judgment should not be certified as a final, appealable judgment, and .we. dismiss Plaintiffs’ appeal. We also decline to exercise our supervisory jurisdiction in this.matter. La. Const. art. V, § 10(A); La. Code Civ. P. art. 2201.

FACTUAL AND PROCEDURAL BACKGROUND

, This matter has a prolonged and. complex procedural history. In January 2005, the City of New Orleans (the “City”) privatized its parking meter, system and began replacing coin-operated parking meters with parking' control pay stations (“Pay Stations”) in certain areas of the City. The Pay Stations accepted credit and/or debit cards in addition .to coins, and serviced multiple parking spaces, unlike the mechanical coin-operated meters.

|2The .City entered into a contract with ACS to collect fines associated with parking citations from the Pay Stations. ACS employees processed citation fine payments through an online payment system and by mail, and operated payment centers where fines could be paid in person. The City also entered into a contract with defendants Standard Parking Corporation, Parking Solutions, L.L.C., and Standard Municipal Parking Joint Venture II (collectively, “Standard”) to install, maintain, and collect parking fees from the Pay Stations.

In April 2005, Plaintiffs filed a Petition for Injunctive Relief, Declaratory Judgment, Writ of Mandamus and Damages against the City and numerous other defendants. Each of the named plaintiffs had received parking citations for not having a Pay Station parking receipt and for expired time. The lawsuit alleged that because the City’s Municipal Code had not been revised to cover the new Pay Stations, there was confusion and uncertainty as to enforcement issues. The lawsuit also alleged that the Pay Stations were installed without the requisite public hearings and review by the City’s permitting and zoning departments. In July 2005, Plaintiffs filed a Motion for Class Certification.

On August 8, 2005, the City passed M.C.S., Ord. 22035, which updated the previous parking ordinances to cover the changes in technology in the method of payment from the traditional coin-operated meters to the Pay Stations. The ordinance expressly provided for retroactive application to January 1, 2005.

lain March 2008, Plaintiffs filed an Amended Restated Petition for Damages. Plaintiffs asserted claims against the City, ACS, and Standard for conversion arising from the allegedly unauthorized collection of parking fees and fines. Plaintiffs also asserted negligence claims against these defendants for, inter alia, failing to obtain legal authority to issue citations at the Pay Stations. The City filed a Third Party Demand and Cross-Claim against ACS and other defendants seeking indemnification.

In October 2009, Standard filed a Motion for Summary Judgment, seeking dismissal of the Plaintiffs’ conversion and negligence claims. The trial court granted the motion, and this court affirmed. Smith v. City of New Orleans, 10-1464 (La. App. 4 Cir. 7/6/11), 71 So.3d 525; Smith v. City of New Orleans ex rel. Shires, 11-0974 (La. App. 4 Cir. 1/4/12), 81 So.3d 1018.

In January 2010, Plaintiffs filed a Motion for Partial Summary Judgment, arguing that the August 2008 parking ordinance could not be applied retroactively to January 1, 2005. On July 22, 2010, the trial court granted the Plaintiffs’ motion. This court affirmed the trial court’s judgment, finding that M.C.S., Ord. 22035 was to be applied prospectively only. Smith v. City of New Orleans ex rel. Shires, 10-1464 (La. App. 4 Cir. 7/6/11), 71 So.3d 525.

On February 20, 2013, ’ the trial court granted Plaintiffs’ Motion for Class Certification. This court affirmed. Smith v. City of New Orleans, 13-0802 (La. App. 4 Cir. 12/23/13), 131 So.3d 511.

In November 2015, Plaintiffs filed a Motion for Partial Summary Judgment seeking a finding of liability by the City and ACS, but reserving the issue of damages for trial. In December 2015, ACS filed a Motion for Summary Judgment ^seeking dismissal of Plaintiffs’ claims for conversion and negligence. In March 2016, the City filed a Motion for Partial Summary Judgment seeking a dismissal of the claims of those named Plaintiffs who never received a citation or were cited but never paid the fines.

The trial court heard the parties’ various motions for summary judgment on May 13, 2016. On June 13, 2016, the trial court signed a judgment: (1) deferring the Plaintiffs’ Motion for Partial Summary Judgment; (2) deferring the City’s Motion for Partial Summary Judgment; (3) denying ACS’s Motion for Summary Judgment as to Plaintiffs’ negligence claims; and (4) granting ACS’s Motion for Summary Judgment as to Plaintiffs’ conversion claims.

On June 22, 2016, Plaintiffs filed a Motion for New Trial on the dismissal of Plaintiffs’ conversion claim against ACS, which the trial court denied on June 27, 2016. On August 29, 2016, Plaintiffs filed a Petition for Appeal.

JURISDICTION

“Before considering the merits in any appeal, appellate courts have the duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue.” Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Id.

Here, Plaintiffs are appealing the trial court’s judgment granting ACS’s Motion for Summary Judgment only with respect to Plaintiffs’ claims for conversion, leaving Plaintiffs’ negligence claims against ACS to be adjudicated.

Designation of a Non-Final Judgment: La. Code Civ. P. art. 1915(B)(1)

La. Code Civ. P. art. 1915(B) provides:

li;B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of. the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjur dicating all the claims and the rights and liabilities of all the parties. (Emphasis added.)

Thus, a partial summary judgment as to less than all claims against a party is not a final, appealable judgment where it is not designated as a final judgment in accordance with Article 1915(B)(1). Dupuy Storage & Forwarding, LLC v. Max Speciality Ins. Co., 16-0050, 16-0051, p. 5 (La. App. 4 Cir. 10/5/16), 203 So.3d 337, 342, writ denied, 16-1982 (La. 12/16/16), 211 So.3d 1171.

In this case, the trial court’s judgment stated as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judgment dismissing Plaintiffs’ claims against ACS for alleged conversion damages is hereby designated as final and appealable pursuant to Article 1915 of the Louisiana Code of Civil Procedure.

In designating the judgment as final and appealable under La. Code Civ. P. art. 1915(B), however, the trial court did not state that there was “no just reason for delay,” nor did it give specific reasons on the record as to why there was no just reason for delay.

The Louisiana Supreme Court has declared that, “[i]n order to assist the appellate court in its review of designated final judgments, the trial court should give explicit reasons, either oral or written, for its determination that there is no just reason for delay.” R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La. 3/2/05), 894 So.2d 1113, 1122. If the trial court fails to do so, however, the ^appellate court cannot summarily dismiss the appeal. Id. “If no reasons are given, but some justification is apparent from the record, the appellate court should make a de novo determination of whether the certification was proper.” Id., 04-1664, pp. 13-14, 894 So.2d at 1122.

This court, in conducting its de novo review, may use the following nonexclusive factors when deciding whether a partial judgment should be designated as appealable:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Id., 04-1664, p. 14, 894 So.2d at 1122 (citation omitted). The overriding inquiry, however, is “whether there is no just reason for delay.” Id., 04-1664, p. 14, 894 So.2d at 1122-23.

Addressing the relationship between the adjudicated and unadjudicated claims, we note that Plaintiffs’ claims against Standard have been dismissed through motions for summary judgment. The following claims have not been adjudicated: (1) Plaintiffs’ claims against the City of New Orleans (which are the subject of a pending motion for summary judgment that was deferred by the trial court); (2) Plaintiffs’ negligence claims against ACS; and (3) the City’s Third-Party Demand and Cross-Claim against ACS.

|7As for this first factor, we note that the claims that have been adjudicated and those that have not been adjudicated involve the same set of operative facts, which all relate to the wrongful collection of parking fees and fines. All of these interrelated facts depend on each other for common resolution, and should not be separated on appeal. Dupuy, 16-0050, p. 7, 203 So.3d at 343.

The second factor is the possibility that the need for review might or might not be mooted by future developments in the trial court. With respect to this factor, we note that La. Code Civ. P. art. 1915(B)(2) permits the trial court to revise its ruling granting in part ACS’s Motion for Summary Judgment at any time prior to a final judgment, which would thereby render moot the need for an immediate appeal of the partial judgment. Id.

The third factor is the possibility that this Court might be obliged to consider the same issue a second time. As for this factor, we note that the sole issue to be addressed by this appeal is whether the trial court erred in finding that Plaintiffs were not entitled to assert a claim for conversion against ACS. On review, whether we affirm or reverse the summary judgment, any ruling by this Court would not end the litigation, but would only result in the matter being remanded to the trial court for resolution of the Plaintiffs’remaining claims at trial. Dupuy, 16-0050, p. 8, 203 So.3d at 343 (citing Robert v. Robert, 04-1127, p. 5 (La. App. 4 Cir. 6/28/06), 936 So.2d 223, 225-26). As in Dwpuy, “in the event of a remand, it is likely that this court will consider the same issue in a subsequent appeal.” Id. See also Setliff v. Slayter, 09-817, p. 3 (La. App. 3 Cir. 8/26/09), 19 So.3d 43, 45 (where trial court granted summary judgment on breach of contract claim, but did not dispose of defamation claim, “[w]e find that Appellant should await final adjudication of the remaining claim before seeking appellate review”).

IsFinally, we find that judicial resources would be wasted by appellate review of the partial summary judgment at this time, considering the probability of a later appeal after adjudication of the Plaintiffs’ remaining negligence claims against ACS, their claims against the City, and the City’s Third-Party Demand and Cross-Claim. An immediate determination of whether Plaintiffs have a cause of action against ACS for conversion of the parking fines will not significantly shorten the length of the trial, narrow the scope of evidence to be adduced at trial, or decrease the costs of litigation. Plaintiffs will still have to put on evidence of the alleged failure to obtain legal authority to issue citations at the Pay Stations when litigating Plaintiffs’ remaining claims against ACS and the City.

In sum, based on our de novo review of the record and applying the factors set forth in Messinger, we find that reversal of the judgment in this case, which granted a motion for partial summary judgment on a single claim, will not foreclose the possibility that this court will have to consider this same issue again after a trial o.n-the merits. In addition, because the trial. court could revise its.ruling on the partial summary judgment at any time prior to final judgment pursuant to La.' Code Civ. P. art. 1915(B)(2),' the need for this appeal may be rendered moot. We also find that judicial resources would be wasted by appellate review of the partial summary judgment at this time, considering the probability of a later appeal after the adjudication of the parties’- remaining claims. Thus, we conclude that there are just reasons for delay, and that the partial judgment should not be certified as a final, appealable judgment. Accordingly, we dismiss Plaintiffs’ appeal for lack of appellate jurisdiction,

jjjConversion of Appeal to Writ Application

“ ‘A court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time, according to the discretion of. the court.’ ” Dupuy, 16-0050, p. 9, 203 So.3d at 344 (quoting Favrot v. Favrot, 10-0986, p. 5 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104). Thus, we have the discretion to consider this partial judgment under our supervisory authority. Id. ■“ ‘Because - the proper procedural vehicle for seeking review of an interlocutory judgment is ordinarily by application for supervisory review, we can—when appropriate—convert the improper appeal to such an application.’” Id. (quoting Succession of Scheuermann, 15-0041, p. 13 (La. App. 4 Cir. 5/22/15), 171 So.3d 975, 983).

An important criterion that we use in guiding our discretion is whether or not exercising our supervisory jurisdiction is dictated under the factors set forth in Herlitz Constr. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981). Id. And the primary consideration under Herlitz is whether review and decision by us would result in a final disposition of all issues in this case. Dupuy, 16-0050, pp. 9-10, 203 So.3d at 344 (citing Scheuermann, 15-0041, p. 14, 171 So.3d at 983).

After the partial summary judgment, all of the parties still remain in this litigation. Plaintiffs still have remaining claims against ACS and the City that will be adjudicated at trial. Thus, the partial summary judgment, whether affirmed or reversed at this point in the litigation, would not result in the termination of this litigation.

Furthermore, we ordinarily will not convert an improperly filed appeal to a supervisory writ application unless the motion or petition for appeal was filed within the delay permitted for applying for supervisory review. Andrew Paul Gerber Testamentary Trust v. Flettrich, 16-0065, pp. 6-7 (La. App. 4 Cir. 11/2/16), 204 So.3d 634, 639. Here, Plaintiffs’ Petition for Appeal was not filed until August 29, 2016, well beyond the 30-day period for applying for a supervisory writ. See Rule 4-3, Uniform Rules—Courts of Appeal. Because the Petition for Appeal was filed outside the limited time allowed for filing a writ application, we decline to exercise our supervisory jurisdiction by converting the improperly filed appeal to a writ application.

Accordingly, we have neither appellate nor supervisory jurisdiction to review the trial court’s June 13, 2016 judgment.

CONCLUSION

Based upon our de novo review of the record, we find that allowing an immediate appeal of this partial judgment would only encourage the parties’ history of multiple appeals and piecemeal litigation, causing further delay and judicial inefficiency. Because Plaintiffs’ appeal from the partial summary judgment was improperly designated as a final, appealable judgment, Plaintiffs do not have a right to appeal the judgment. Accordingly, we dismiss the appeal. We also decline to convert the appeal to an application for supervisory review. La. Const. art. V, § 10(A); La. Code Civ. P. art. 2201.

APPEAL DISMISSED

      . The other named defendants are John H. Shires, in his official capacity as the Director of the City’s Department of Public Works; the Parking Enforcement Officers for Unit 10, Beat 100; Michael Centineo, in his official capacity as the Director of the City's Department of Safety and Permits; the New Orleans City Planning Commission; Larry P. Hesdor-fer, in his official capacity as the director of the Vieux Carre Commission; Parking Solutions, L.L.C.; Standard Parking Corporation; and Standard Municipal Parking Joint Venture II.

      . If the trial court provides explicit reasons for its determination, appellate courts review the certification under the abuse of discretion standard. Id.

      . Because the Petition for Appeal was filed outside of the 60-day period for taking a devolutive appeal, we asked the parties to brief this jurisdictional issue. Plaintiffs argue that two executive orders issued by the governor after the massive flooding in Louisiana in August 2016 suspended the deadline. Given our disposition of this appeal on other jurisdictional grounds, we need not address this issue.