1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-31274

WILLIAM J. McAVEY,

Plaintiff-Appellee,

v.

CHEN-HORNG LEE; CHIN-LI LEE,

Defendants-Appellees,

v.

FIRST FINANCIAL INSURANCE CO.,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Louisiana

July 25, 2001

Before GARWOOD, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

William J. McAvey brought this diversity action against ChenHorng Lee (Mr. Lee), his wife, C hin-Li Lee (Mrs. Lee), and Ming

Chun, Inc. d/b/a Tomfort Lodge (“M i ng Chun”) (collectively, “the

insureds” or “the i nnkeepers”), and First Financial Insurance

Company (“First Financial”), the in s ureds’ commercial liability

insurer, for damages for persona l injury to McAvey caused by the

negligence of the insureds and their employees in failing to take2

reasonable precautions and to exercise proper vigilan ce for the

safety and security of their hotel guests. McAvey alleged that he

fractured his heel while chasing two unidentified ro b bers who had

taken hi s wallet by force in his Tomfort Lodge motel room. He

furt her averred that the criminals entered the motel and the hall

outside his room without detection by the motel employees, tricked

him into opening his door, committed the robbery, and escaped

without being iden t ified or detained, because of the defendants’

inadequate motel security and safety precautions and the negligence

of the motel clerk in failing to exercise reasonable efforts to

monitor and protect hotel guests against such dangers. A t the close

of the plaintiff’s case at trial, the district cou rt entered a

judgment as a matter of law (“JMOL”) dismissing the action against

Mr. and Mrs. Lee. After completion of the trial, the jury returned

a verdict in favor of McAvey, fixing damages and apportioning fault

between him and the innkeepers. The district court rendered a

judgment in McAvey’s favor against First Financial.

First Financial appealed, contending, inter alia , that its

policy excluded coverage for bodily injuries arising from assault

or battery; that all of McAvey’s i njuries arose from a battery by

the robbers; that the dismissal of the suit against two of First

Financial’s insureds, Mr. and Mrs. Lee, and the plaintiff’s failure

to properly serve the third insured, Ming Chun, effectively

extinguished the plaintiff’s right to a direct action and judgment

against the insurer; and that the district court erred in not3

instructing the jury to determine whethe r the fault of the

unidentified criminals was a legal cause of McAvey’s injuries, and,

if so, to apportion a share of the fault and liability to them.

I.

McAvey, a truck driver, arrived in New Orleans, Louisiana, on

the evening of November 6, 1995, with a load of household goods to

be delivered the ne xt morning. McAvey checked into the Tomfort

Lodge, a modestly priced motel on Tulane Avenue.

Mr. and Mrs. Lee had purchased the building in which the

Tomfort Lodge was located in 1988, and Mr. Lee had managed a motel

business in the building from 1988 to 1995. At some point prior to

1993, the motel business was taken over by Ming Chun, Inc. (“Ming

Chun”). The Lees leased the building to Ming Chun for minimum and

percentage-of-profits rentals, pursuant to an oral agreement. In

1995, the Lees and Ming Chun signed a written le ase formalizing

their existing or al lease agreement. Mr. Lee continued to manage

the motel business for Ming Chun.

According to McAvey, he was awakened around 11 p.m. the night

of his sta y at the Tomfort Lodge by a man who knocked on the door

and announced himself as “motel security.” When McAvey opened the

door, two men forced their way in and hurled him onto the bed. As

McAvey struggled with one assailan t, the other grabbed McAvey’s

wallet and ran. McAvey pursued the robber outside the room and down4

the motel stairs. During the chase, the second robber made contact

with McAvey as he passed McAvey on the stairs; McAvey’s bare right

h eel landed on the edge of one of the steps, fracturing his heel

bone.

McAvey filed suit in district court initially only against Mr.

Lee. First Financial, the innkeepers’ commercial liability insurer,

refused to defen d the claim against Mr. Lee on the ground that

McAvey’s claim arose from a battery, a risk it alleged was excluded

from coverage under the policy. McAvey added Mrs. Lee as a

defendant in h is First Amended Complaint, and added Ming Chun and

First Financial as defendants in his Second Amended Complaint.

First Financial moved for summary judgment on the basis that

McAvey’ s loss arose from a battery, which it claimed was excluded

from coverage by the policy. On November 20, 1997, the district

court denied the insurer’s mot ion, holding that the documents

constituting the insurance contract were ambiguous as to whether an

assault and battery exclusion had been incorporated by reference and

therefore must be construed in favor of coverage. On August 8,

1998, for the same reasons, the district court granted Mr. and Mrs.

Lee’s motion for a partial summary judgment, decree ing that the

policy did not include an assault and battery exclusion.

During trial, after McAvey rested his case-in-chief, the Lees’

a ttorney, James Swanson, moved orally for a JMOL to di smiss the

action against the Lees on the ground that “[t]here is no evidence

. . . that Mr. Lee did anything that was unreasonable under the5

circumstances. The evidence seems to be that at worse the desk

clerk should have done something and he wasn’t Mr. Lee’s employee,

he was the corporation’s employee.” The district court granted JMOL

dismissing the action agains t the Lees “for the reasons argued by

the plaintiff [sic].” Evidently, the district court meant “for the

reasons argued by the defendants’ attorney, Mr. Swanson.” After the

defendants presented their case-in-chief, First Financial moved for

dismissal of Ming Chun on the grounds that the corporation had not

been properly served pursuant to Federal Rule of Civil Procedure 4.

After that motion was de nied, First Financial moved for a JMOL

pursuant to Rule 50(a)(2) to dismiss McAvey’s suit on t he grounds

that Louisiana’s di rect action statute did not permit the

maintenance of a direct action against an insurer when the insureds

were no longer parties to the action, arguing that the Lees had been

dismissed and Ming Chun, the o nly other insured, had not been

properly served. The district court denied the motion and, after

closing arguments and instructions, submitted the case to the jury.

The jury returned a verdict finding that the negligence of the

innkeeper and McAvey were legal causes of McAvey’s injury, charging

the insureds with eighty percent of the fault and McAvey with twenty

percent. The district court entered final judgment against First

Financial a s insurer of Ming Chun, awarding McAvey a net sum of

$301,600 in damages after discounting his rec overy by his

apportioned fault. First Financial’s motions for a JMOL and a new

tr i al were denied. First Financial appealed from the district1 The Lees reserved their rights as appellees regarding First

Financial’s appeal, insofar as that appeal implicated the propriety

of the partial summary judgment awarded to the Lees on the issue of

coverage.

6 court’s final judgment. McAvey appealed from the JMOL dismissing

his ac tion against the Lees. Mr. and Mrs. Lee appealed from

evidentiary and legal rulings made during the trial and the final

judgment. After appellate briefs had been filed, however, McAvey

and the Lees settled the dispute between them. Upon a joint motion

by McAvey and the Lees, their appeals were dismissed by order of the

Clerk of Court on July 21, 1999. 1

II.

A.

First Financial cont ends that the policy for 1995, the

a pplicable policy year, excluded coverage for losses arising from

assault or bat t ery; and that McAvey’s injuries resulted from a

battery. We conclude, however, that (1) the policy did not exclude

coverage for suc h losses and, (2) therefore, whether McAvey’s

injuries arose from a battery is irrelevant to determination of the

insurer’s liability. This coverage issue was raised by Mr. and Mrs.

Lee’s partial motion for summary judgment, which the district court

granted, and First Financial ’s motion for summary judgment, which7

was denied by the trial court.

“The general standard that an appellate court applies in

reviewing the grant or denial of a summary-judgment motion is the

same as that employed b y the trial court initially under Rule

56(c )–a summary judgment is proper when it appears ‘that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.’” 10A C HARLES A LAN

W RIGHT

, A RTHUR R. M ILLER

, & M ARY K AY K ANE

, F EDERAL P RACTICE AND P ROCEDURE : C IVIL

3 D § 2716 (1998) (quoting F ED

. R. C IV

. P. 56(c)) (citing, inter alia

,

GATX Aircraft Corp. v. M/V Courtney Leigh , 768 F.2d 711 (5 t h Cir.

1985); McCrae v. Hankins

, 720 F.2d 863 (5 t h Cir. 1983)). “[O]n

summary judgment the i nferences to be drawn from the underlying

facts contained in such materials [such as affidavits, depositions,

and exhibits] must be viewed in the light mos t favorable to the

party opposing the motion.” U nited States v. Diebold, I nc. , 369

U.S. 654, 655 (1962). “[W]e look at the record on summary judgment

in the light most favorable to

. . . the party opposing the motion

. . . .” P oller v. Columbia Broad. Sys., Inc. , 368 U.S. 464, 473

(1962); see also John v. La. Bd. of Trustees

, 757 F.2d 698 (5 th Cir.

1985); Simon v. United States , 711 F.2d 740 (5 th Cir. 1983).

The record contains numerous documents pertaining to contracts

of commercial general liability insurance between F irst Financial

and Ming Chun. First Financial issued one new policy and two

renewal policies for the annual policy periods commencing in 1993,

1994, and 1995, insuring Ming Chun against liability in connection2 The policy was amended on April 26, 1995, to change the

named insureds to “Chen-Horng Lee, Chin-Li Lee, and Ming Chun Inc.

DBA: Tomfort Lodge.”

8 with the motel business and property: (1) First Financial New

Policy No. F0070G400045; Named Insured: Ming Chun, Inc., DBA Carib

Motel, 4025 Tulane Avenue, New Orleans, La. 70119; P o licy period:

April 25, 1993 to April 26, 1994 (hereinafter “1993 policy”); (2)

First Financial Renewal Policy No. F0070G400045 R1; Named Insured:

Ming Chun, DBA Comfort Lodge, 4025 Tulane Ave., New Orleans, La.

70119; Policy period: April 26, 1994 to April 26, 1995 (hereinafter

“1994 policy”); (3) First Financial Renewal Policy No. F0070G400045

R-2; Named Insured: Ming Chun, DBA Tomfort Lodge, 4025 Tulane Ave.,

New Orleans, La. 70119 2 ; Policy period: April 26, 1995 to April 26,

1996 (hereinafter “1995 policy”).

Each policy incorporated and/or deleted by ref erence other

do cuments, forms, and endorsements governing various aspects of

coverage. The policies referred to the separate documents by

company form numbers. Consequently, the contours of coverage of

each policy cannot be determined without laboriously tracking down

each pertinent document incorporated or deleted by reference among

the numerous documents, forms, and endorsements in the record..

The 1993 policy, in pertinent part , provided: “Form(s) and

Endorsement(s) made a part of this policy at time of issue: . . .

CL150(11/8 5)[.]” (footnote and other forms listed omitted). That

form , entitled “General Commercial Liability Coverage Part9

Declarations,” filed of record with the 1993 policy, in pertinent

part provides: “Forms and Endorsements applying to this Coverage

Part and made part of this policy at time of issue: . . . BG-2-

CW( 9/92)[.]” (numerous others omitted). “BG-2-CW(9/92)

(Interm e diate Form)” contains exclusion BG-G-042 492 entitled

“Exclusion–Assault Or Battery,” which provides:

Exclusion (a ) of Coverage A (Section 1) is replaced by

the following: a. ‘bodily injury,’ ‘property damage,’ or

‘personal injury’: (1) Expe c ted or intended from the

standpoint of any insured; or (2) Arising out of assault

or battery, or out of any act or omission in connection

with the prevention o r suppression of an assault or

battery.

The replaced Exclusion (a) provides: “This insurance does not apply

to: a. ‘Bodi ly injury’ or ‘property damage’ expected or intended

from the standpoint of the insured. This exclusion does not apply

to ‘bodily injury’ resulting fro m the use of reasonable force to

protect persons or property.” Thus, the 1993 policy plainly

excluded coverage of bodily and personal injury and property damage

arising out of assault or battery.

The 1995 policy in effect at the time of McAvey’s injury,

however, failed to c o ntinue or re-adopt the assault or battery

exclusion. The 1995 policy, in pertinent part, provides:10

In consideration of the payment of th e premium, it is

agreed that the Policy designated herein is renewed for

t he period stated, subject to all its terms unless

otherwise specified below.

RENEWAL TERMS:

. . . In consideration of our continu ing coverage and

the premium charged, you understand and agree that the

following forms changes are made and apply, or no longer

apply, as the case may be, to coverage provided by this

policy.

These forms are deleted and no longer apply: FIF(4/89

Revised 5/92; BG-I-051(4/92); CG0001(11/88);

CG0300(11/85); CG2244(11/85)

These forms are added and apply: FIF(4/89)Revised

6/94; BG-1-015(2/94); CG0001( 10/93); CG0300(10/93);

CG2244(10/93)

Form CG0001(10/93), the Commercial General Liability Coverage Form

filed of record with the 1995 policy, provides in pertinent part:

“2. Exclusions. This insurance does not apply to: a. Expected or

Intended Injury[:] ‘Bodily injury’ or ‘property damage’ expected or

intended from the standpoint of the insured. This exclusion does

not apply to ‘bodily injury ’ resulting from the use of reasonable

force to protect persons or property.”

But the foregoing quoted 1995 policy provisions clearly11

deleted and made inapplicable Form CG0001(11/88), the original

Commercial General Liability Coverage Form, which had been amended

by the “BG-2-CW(9/92) (Intermediate Form)” that contained the BG-G042 492 assault or battery exclusion. The 1995 policy contains only

the much narrower exclusion of injury or damage expected or intended

by the insured, unless resulting from use of reasonable force to

protect persons or property. Consequently, it is evident that the

1995 policy did not continue or re-adop t the assault or battery

excl usion. Thus, McAvey’s injuries arising out of assault or

battery are not excluded from coverage under the 1995 policy.

Furthermore, assuming arguendo that it is reasonable to

interpret the insurance documents as First Financial proposes, viz.,

that the parties’ unexpressed intention was that the 1993 assault

and battery ex clusion would affect all future contracts unless

expressly abrogated, that would only provide an alternative reading

of an ambiguous contract. We have recognized that Louisiana courts

have required that insurance policy ambiguities be resolved in favor

of c overage of the insured. H uey T. Littleton Claims, Inc. v.

Employers Reinsurance Corp.

, 933 F.2d 337, 340 ( 5 th Cir. 1991)

(citing Benton Casing Serv., Inc. v. AVEMCO Ins. Co.

, 379 So. 2d 225

(La. 1979); Stewart v. La. Farm Bureau Mut. Ins. Co. , 420 So. 2d

1217 (La. Ct. App. 3d Cir. 1982)); accord L A

. C IV

. C ODE A NN

. art. 2056

(West 2000) (“In case of do ubt that cannot be otherwise resolved,

a provision in a contract must be interpreted against the party who

furnished its text. A contract executed in a standard form of one3 E rie R.R. Co. v. Tompkins

, 304 U.S. 64 (1938). Under E rie

,

when confronted with a diversity case arising under state law, we

must apply the law of that state as the state’s highest court would

apply it. I d. at 78. If the decisions of that court are silent on

an issue, we must conscientiously determine how t hat court would

decide the issue before us, looking to the sources of law–including

intermediate appellate court decisions of t h at state–that the

state’s highest court would look to for persuasive authority.

Transcont. Gas v. Transp. Ins. Co.

, 953 F.2d 985, 988 (5 th Cir.

1992) ; see also 19 C HARLES A LAN W RIGHT

, A RTHUR R. M ILLER & E DWARD H. C OOPER

,

F EDERAL P RACTICE AND P ROCEDURE § 4507, at 126 (2d ed. 1996).

12 party must be interpreted, in case of doubt, in favor of the other

party.”); Crabtree v. State Farm Ins. Co.

, 632 So. 2d 736, 741 (La.

1994) (“If after applying the other general rules of construction

an ambiguity remains, the ambiguous contractual provision is to be

construed against the insurer who issued the policy and in favor of

the insured.”). Accordingly, even if we accept First Financial’s

contractual interpretation as a reasonable choice, we are

constitutionally required, as E rie held, 3 to apply Louisiana l aw,

which here mandates that we resolve th e ambiguity by adopting the

other reasonable interpretation that favors coverage for the benefit

of the insured.

B.

First Financial next argues that the district court erred in

rendering judgment against the insurer alone, because Louisiana’s

direct action statute, L A

. R EV

. S TAT

. A N N . § 22:655 (West 2000),

provides that “such action may be brought against the insurer alone13

only when” the insured is deceased, insolvent, unable to be served,

engaged in bankruptcy proceedings, or a spouse, child, or parent of

the plaintiff, and none of these exceptions applies in the present

case. Id. § 655(B)(1)(a)-(e). In the absence of a Louisiana case

on p oint, First Financial urges us to E rie guess that the Supreme

Court of Louisiana would hold that the statute bars the district

court’s judgment agai n st the insurer because none of the insureds

was a party to the direct action agains t the insurer when final

judgment was rendered against the insurer. According to First

Financial’s argument, McAvey “has no r ight of action without the

presence of at least one of the insureds.”

We do not think the State’s highest court would reach that

conclus ion in the present case. On the contrary, as indicated by

that court’s previous decisions, we believe that it would hold that

the injured plaintiff’s substantive right and remedial direct action

against the insurer and the insured tortfeasor accrues immediately

upon the commission of the tort under the openin g provisions of

sect i on 655(B). Because those provisions of the direct action

statute have not been changed, we think that the Supreme Court of

Louisiana would conclude that the accrual of the injured plaintiff’s

right and remedy against the insurer under the direct action statute

has not been substantively altered. Instead, we believe that the

court would decide that the section 655(B)(1)(a)-(e) p rovisions

res t ricting suits against an “insurer alone,” which were added to

the end of that section by amendment in 1988, set forth a procedural14

joinder requirement that authorizes the insurer, subject to

specified exceptions, to object to non-joinder of an insured and

seek dismissal of the direct action if the insured is not joined.

First Financial’s argument misinterprets the procedural

join der requirement of section 655(B)(1), ending in subparagraphs

(a)-(e), a s a substantive condition precedent to the injured

plaintiff’s right, re medy, and judgment against the insurer under

the direct action statute. Consequently, First Financial

erroneously contends that the dismissal by directed verdict of

McAvey’s action against two of the insureds, Mr. and Mrs. Lee, and

his alleged failure to properly serve the insured corporation, Ming

Chun, nullified his substantive right, remedial action, and judgment

against the insurer.

We are convinced that the Supreme Court of Louisiana would

reject First Financial’s theory of interpretation, however, because

it is incompatible with the text, structure, history, and

jurisprudent i al environment of the direct action statute. Under

First Financial’s proposed reading of the direct action statute, the

opening provision of section 655(B)(1) would be effectively repealed

and the basic historical public purpose of the stat ute would be

defeated; for it is the beginning provision of secti on 655(B)(1)

that establishes for automobile accident victims and other injured

plaintiffs s u bstantive rights and remedial actions, accruing

imm ediately with the insured tortfeasor’s wrongful act, which are

en f orceable directly against the insurer to the same extent as15

against the insured tortfeasor, subject to the coverage and limits

of the liability insurance policy. The express purpose of the

direct action statute, to ensure that all liability policies inure

to the benefit of people injured through the fault of the insured,

L A

. R EV

. S TAT

. A NN

. § 655(D) (West 2000), can be effectuated only

through the substantive rights and direct remedi al actions

established by the initial provision of section 655(B)(1).

The first provision of section 655(B)(1), which has been the

principal substantive part of the direct action statute since 1930,

plainly states:

The injured person or his or her survivors or heirs

. .

. at thei r option, shall have a right of direct action

against the insurer within the terms and limits of the

policy; and, such action may be brought against the

insurer alone, or against bot h insured and insurer

jointly and in solido . . . .

Id. (emphasis added). Without the creation of a substantive right

for the injured plaintiff against the insurer by that provision, all

else in the statute would be useless and meaningless. It is

axiomatic that without a right there can be no remedy or action;

and it is self-evident that without the plaintiff’s right and action

or remedy against the insurer there would have been no need for the

legislature to create a procedural method wh e reby the insurer may16

have the court require the joinder of insureds. Unless the three

elements of section 655(B)(1)–substantive right, remedial action,

and procedural joinder–are understood as fulfilling three different

l egal purposes, they are irreconcilable and cannot all b e given

meaning as required by one of the paramount principles of statutory

constructio n

. S ee L A

. C IV

. C ODE A NN

. art. 13 (West 2000) (“Laws on

the same subject matter must be interpre ted in reference to each

other.”); cf. id. art. 2050 (“Each provision in a contract must be

interpreted in light of the other provisions so that each is given

the meaning suggested by the contract as a whole.”); L A

. R EV

. S TAT

.

A NN

. § 1:3 (West 2000) (“Words and phrases shall be read with their

context and shall be construed according to the common and approved

usage o f the language.”); s ee also ABL Management, Inc. v. Bd. of

Supervisors of Southern U.

, 773 So. 2d 131, 135 (La. 2000) (“It is

presumed that every word, sentence or provision in the statute was

intended to serve some useful purp ose, that some effect is to be

given to each such pro vision, and that no unnecessary words or

provisions were used.

. . . The Legislature is presumed to have

enacted each statute with deliberation and with full knowl e dge of

all existing laws on the same subject. . .

. Where it is possible,

the courts have a duty in the interpretation of a statute to adopt

a construction which harmo n izes and reconciles it with other

provisions. . . . A construction of a law which creates an

inconsistency should be avoided when a reasonable interpretation can

be adopted whi ch will not do violence to the plain words of the4 The distinctions between rights, remedies, and procedure

have been clearly described by Professor Dobbs. S ee 1 D AN B. D OBBS

,

D OBBS L AW OF R EMEDIES §§ 1.1-1.10, esp. §§ 1.1, 1.6, 1.7 (2d ed. 1993).

Under common-law theory, a right is a creature of substantive law,

a remedy is created by remedial law, and procedural rules are

products of procedural law. See id.

The law of remedie s is thus sharply distinguished from

the substantive law of rights. It is also distinguished

from the law of procedure. Procedural law deals with the

process of getting from right to remedy. The methods for

presenting both substantive and remedial issues are its

concern. Some remedies questions are closely connected

with the substantive law or with procedural problems and

more is to be said about that later. For most purposes,

h owever, remedies questions and remedies law are qui t e

distinct from both substance and procedure.

Id. at 2. Although in both civil-law and common-law theory, the

concept of “right” is distinct from that of “action” or “remedy,”

civil law theory does not distinguish between procedure, action, or

remedy but, in fact, considers all three to be part of “procedural

law.” S ee A.N. Y IANNOPOULOS

, P ROPERTY § 239, at 472-74 (2 L OUISIANA C IVIL

L AW T REATISE ) (3d ed. 1991). In both common and civil law systems,

rights and actions or remedies are interdependent corollaries; that

is, if one has a right one may have an action or remedy, and vice

versa. S ee id. ; 1 D OBBS

, supra ; J ULIUS S TONE

, T HE P R OVINCE AND F UNCTION

OF L AW : L AW AS L OGIC

, J USTICE

, AND S OCIAL C ONTROL

, A S TUDY IN J URISPRUDENCE

128-29 (reprint 1973).

17 statute and will carry out the Legislature's intention.”).

Accordingly, we calculate that the Supreme Court of Louisiana

would hold that section 65 5 (B)(1) of the direct action statute

consists o f three complementary elements 4 : (1) the injured

plaintiff’s substantive right against the insurer, which accrues

derivatively with his substan tive right against the insured

tortfeasor; (2) the injured plaintiff’s direct action or remedy

against the insurer; and (3) the procedural requirements, set forth

in t he provision ending with subparagraphs (a)-(e) of section5 The foregoing constitutes the principal part of the direct

action statute, which has not changed significantly since its

enactment in 1930. See 1930 La. Acts 55.

18 655(B)(1), which, in effect, provide the insurer a procedural means

to avoid de fending a direct action alone, except in the

circumstances listed, by objecting to the non-joinde r of the

insured.

Reading the pertinent provisions of the direct action statute

together and in light of their historical development, the state and

federal jurisprudence, and scholarly commentary further supports the

foregoing conclusions. The direct action statute, in pertinent

parts, provides:

B. (1) The injured person or his or her survivors or

heirs mentioned in Subsection A, at their option, shall

have a right of direct action against the insurer within

the terms and limits of the policy; and, such action may

be brought against t h e insurer alone, or against both

the insured and insurer jointly and in solido,[ 5 ] in the

parish in which the accident or injury occurred or in

the parish in which an action could be brou ght against

either the insured or the insurer under the general

rules of venue prescribed by Code of Civil Procedure

Art. 42 only. H oweve r, such action may be brought6 Italicized subsection added by 1988 La. Acts 934. In

subsequent amendments, the enumeration within this subsection was

changed from 22:655(B)(1)-(5) to 22:655(B)(1)(a)-(e), 1989 La. Acts

117, and the provision for bringing action solely against the

insurer in the case of the death of the insured was added as

22:655(B)(1)(f), 1992 La. Acts 584.

19 against the insurer alone only when:

(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 off ense or quasi-offense between children and

their parents or between married persons; or

(e) The insured is deceased. [ 6 ]

* * *

D. It is also the intent of this Section that all

liability policies within their terms and lim i ts are

executed for the benefit of all injured persons and

their survivors or heirs to whom the insured is liable;

and, that it is the purpose of all liability policies to

give protection and covera ge to all insureds, whether

they are named insured or additional insureds under the7 This second emboldened part of the statute was added by

1956 La. Acts 475.

20 omnibus clause, for any legal liability said insured may

have as or for a tortfeasor within the terms and limits

of said policy.[ 7 ]

(bold and emphasis added).

The original act that became part of the present direct action

statute was Act 253 of 1918. That law made it illegal to issue a

liability policy without a provision that, in case of the insured’s

insolvency or bankru ptcy, the insurer would not be released, but

subject to a direct action within the terms and limits of the policy

by the injured person or his or her heirs. 1918 La. Acts 253. In

Edwards v. Fid. & Cas. Co.

, 123 So. 162 (La. Ct. App. O rl. 1929),

the court of appeals upheld under the statute the right and action

of a person injured by an insured tort feasor to recover from the

latter’s insurer the amount of his unsatisfied judgment against the

insured. The court held that “the purpose of the statute [was] to

create, immediately upon the happening of the accident, a cause of

action in the injured party against the insurer

. . . or the party

at fault

. . . conditioned upon the obtaining of a judgment against

the party at fault and upon unsucc essful efforts to collect that

judgment[.]” Id. at 163.

In its next session, the legislature enacted Act 55 of 1930,21

codifying the Edwards holding and providing that the injured person,

at his option, “shall have a righ t of direct action against the

insurer

. . . either against the insurer company alo ne or against

both the assured and the insurer

. . . jointly and in solido.” That

provision, without significant change, has been the principal part

of the direct action statute ever since. See supra , at n. 5.

A series of Louisiana Su preme Court and court of appeals

decisions subsequently held that under the direct action statute the

insurer could not assert the insured’s spousal, parental, or

charitable immunity. E dwards v. Royal Indem. Co.

, 161 So. 191 (La.

1935) (holding similarly for tort occurring before marriage); Ruiz

v. Clancy

, 162 So. 734 (La. 193 5) (holding that insurer could not

plead f ather’s immunity to suits from children); R ome v. London &

Lancashire Indemnity Co. of America

, 160 So. 121 (La. 1935), o n

remand

, 169 So. 132 (La. Ct. App. Orl. 1936) (holding that insurer

could not plead governmental immun ity of insured); H arvey v. New

Amsterdam Cas. Co.

, 6 So. 2d 774 (La. Ct. App. Orl. 1942) (holding

that insurer could not plead insured husband’s immunity from

liability to wife); Messina v. Société Française

, 170 So. 801 (La.

Ct. App. Orl. 1936) (holding that insurer could not raise defense

of immunity for hospital).

Act 475 of 1956 added the second emboldened provision quoted

above at note 7, declaring that, within their terms and limits, all

liability policies a r e executed for the benefit of all injured

persons to whom the insured is liable and to protect and cover all22

insureds for any liability they may have as or for a tortfeasor.

In West v. Monroe Bakery, Inc.

, 46 So. 2d 122 (La. 1950), the

Louisiana Supreme Court held an insurer liable to an injured victim

despite the insured’s violat i on of a policy condition by delaying

without excuse in giving the insurer notice of the accident for more

than a year. I d. at 129 (“[I]f at the time of i njury, the

circumstances ar e such that, under the terms and limits of the

policy, the insurance carrier is liable, the rights of the injured

party against the insurer under Act No. 55 of 1930 become fixed as

of the moment of injury.”); accord Hedgepeth v. Guerin

, 691 So. 2d

1355, 1362 (La. Ct. App. 1 st C i r. 1997); Murray v. City of Bunkie

,

686 So. 2d 45, 49 (La. Ct. App. 3d Cir. 1997) ; E lrod v. P. J. St.

Pi erre Marine, Inc. , 663 So. 2d 859, 863 (La. Ct. App. 5 t h Cir.

1996); Williams v. Lemaire

, 655 So. 2d 765, 767-68 (La. Ct. App. 4 th

Cir. 1995).

Of cou rse, the injured person’s right against the insurer,

which is derived by the direct action statute from the plaintiff’s

right against the insured tortfeasor, generally is dependent upon

that substantive delictual right for its existence and scope. S ee,

e.g.

, Cacamo v. Liberty Mut. Fire Ins. Co.

, 764 So. 2d 41 (La. 2000)

(holding that the direct action statute gives special rights to tort

victims, not to insureds with contractual claims against their own

insurer); Desc ant v. Adm’rs of the Tulane Educ. Fund , 639 So. 2d

246, 249 (La. 1994) (holding that the insured’s medical malpractice23

act cap also limits plaintiff’s direct recovery from insurer).

The state supreme court and appellate courts, the United

S tates Supreme Court, and this Circuit have recognized, however,

that when the injured plaintiff acquires a valid right against the

tortfeasor’s insurer under the direct action statute, that right is

substantive in nature. S ee Quinlan v. Liberty Bank & Trust Co.

, 575

So. 2d 336, 352 ( L a. 1991) (on reh’g) (“When the statute is

applicable and authorizes a direct suit against a tortfeasor’s

insurer, the statute is read into and becomes a part of a po l icy

written pursua n t thereto, even though the policy does not contain

the language required by the statute, or contains language

prohibited by the statute.

. . . [T]he Direct Action Statute is a

mandate for a tort victim to bring a direct suit to recover damages

for personal injury or corporeal property damage from the

tortfeasor’s insurer, regardless of whether the insurer has framed

the p olicy as a liability or an indemnity contract.”) (internal

citations omitted); West v. Monroe Bakery, Inc.

, 46 So. 2d 122, 123

(La. 1950) (“[The direct act ion statute] has been treated

consistently as conferring substantive rights on third par ties to

contracts of public liability insurance, which become vested at the

moment of the accident in which they are injured”); Zimmerman v.

Int’l Cos. & Consulting, Inc.

, 107 F.3d 344, 346 (5 t h Cir. 1997)

(quoting Quinlan

, supra ); Auster Oil & Gas, Inc. v. Stream

, 891 F.2d

570, 577-78 (5 th Cir. 1990) (quoting Q uinlan

, supra ) (citing West

,

supra ); In re Combustion, Inc.

, 960 F. Supp. 1056, 1061 (W.D. La.8 The foregoing cases appear to represent the prevailing view

of jurists who have carefully considered the nature of the injured

person’s right against the tortfeasor’s insurer under the direct

action statute. In other cases, when the nature of the right was

not at issue, c o urts have spoken of the right loosely as a

“procedural right,” a “cause of action,” a “right of action,” or in

other imprecise terms. S ee, e.g.

, Dumas v. United States Fidelity

& Guar. Co.

, 134 So. 2d 45, 52 (La. 1961); Ruiz v. Clancy

, 162 So.

734, 738 (La. 1935). Lack of precision in the use of “right,”

“remedy,” “action,” and “procedure” is n ot uncommon. S ee, e.g.

,

Y IANNOPOULOS

, supra

, at 473 (“Action is frequently defined as a

recourse to justice in case of contestation or violation of a

right, as well as an aspect of the right that the judge will

recognize and protect. Thus, while distinction is made in principle

between right and action, the two are frequently regarded as one

and the same thing.”); see also 1 D OBBS

, supra , at 24-25 (“Lawyers

use the word remedies in a host of different ways . . . . []that

makes it difficult to know how a remedies question differs from a

procedural or some other kind of question. . . . In a broad sense,

almost any solution to any kind of problem can be regarded as a

remedy.”).

24 1997) (quoting Quinlan

, supra ); accord Lumbermen’s Mut. Cas. Co. v.

Elbert

, 348 U.S. 48, 51 (1954) (“The Louisiana courts have

characterized the statute as creating a separate and distinct cause

of action against the insure r which an injured party may elect in

lieu of his action against the tortfeasor”); W ILLIAM S. M C K ENZIE & H.

A LSTON J OHNSON III, I NSURANCE L AW & P RACTICE § 23, at 3 2-33 (15 L OUISIANA

C IVIL L AW T REATISE 1986) (noting that Lumbermen’s Mutual approved the

view that “the statute created substantive rights which the federal

court was bound to enforce”). 8

The legislature did not affect the plaintiff’s substantive and

remedial rights under the di r ect action statute in the 1988

amendment that added the italicized portion quoted at note 6, supra

.

The 1988 amendment merely added a pr ocedural method by which the9 In the present case, we need not decide to what extent, if

any, the procedural joinder rule added by the 1988 amendment should

be read in pari materia with Louisiana’s ge neral provisions for

joinder of parties, specifically Louisiana Code of Civil Procedure

25 insurer can object to the non-joinder of the insured (other than in

the exceptional ci rcumstances listed), which operates as an

exception to the principle of Louisiana Code of Civil Procedure

article 643, which provides that the i njured plaintiff, as a

solidary obligee, may enforce his claim against either the insurer

or the insured, as a solidary obligor, or together, at the

plaintiff’s option. The legislature’s intention to preserve the

injured person’s substantive right and remedial action against the

tortfeasor’s insurer is clear. By continuing the 1930 substantiveremedial provision verbatim and intact when it added the joinder

provis i on in 1988, the legislature obviously did not intend to

abrogate the right and remedy which had been enforced for seventyone years; instead it meant simp ly to add a procedural rule of

joinder to accompany the pre-existing right a nd remedy. If the

legislature had intended to drastically limit or hamper the

substantive rights and remedial actions under Louisiana’s venerable

and unique direct action statute, surely it would have said so in

explicit, clear, and unambiguous terms. For this reason, and to

give meaning to every provision of the whole direct action statute,

as amended, we conclude that the statute must now be r ead as

establishing a substantive right, a remedial action, and a joinder

procedure. 9articles 641-64 3. Articles 641 and 642, which mirror the

provisions of Federal Rule of Civil Procedure 19, require a court

to determine via a “close factu al analysis” of the interests

involved whether an absent party should be joined, and whether the

action should proceed if the party cannot be joined. See State

Department of Highways v. Lamar Advertising Co. of La., Inc. , 279

So. 2d 671, 677 (La. 1973).

26 In this case, First Financial’s motion for JMOL was not based

on a procedural objection to non-joinder but on its misconception

that the injured plaintiff’s right, remedy, and judgment against the

insurer are substantively de pendent upon joinder of the insureds.

E ven if the motion for JMOL could be construed as a procedural

objection to non-joinder of an insured, however, the district

court’s denial was not an abuse of discr etion because the motion

came so late in the litigation–at the conclusion of all the evidence

in the cas e, two years after the filing of the initial

complaint—that granting it would have prejudiced the parties present

with undue delay; the district co urt did not err or abuse its

discretion because its denial of the motion will not result in First

Financial incurring multiple or inconsistent obligations, or in Ming

Chun being subjected to liability for which it h ad no opportunity

to defend itself. S ee Pulitzer-Polster v. Pulitzer

, 784 F.2d 1305,

1309 (5 th Cir. 1986); Schutten v. Shell Oil Co.

, 421 F.2d 869, 873-

74 (5th Cir. 1970); 7 W RIGHT § 1688.1, at 510-512.

As we have suggested above, the judgment again st First

Financial was based only on the delictual right which McAvey had

against First Financial’s insured, Ming Chun, not on any delictual10 Because we conclude that the Louisiana Supreme Court would

hold that the 1988 amendment to the direct action statute is a

procedural joinder requirement, and that First Financial’s motion

for JMOL either did not object to the non-joinder of an insured or

did not file its objection promptly so as to avoid unfair delay and

prejudice to other parties, we expressly do not reach the issue of

whether the statute’s requirement that the action be “brought

against” the insureds in this case was satisfied by the

commencement of the action against them, see L A

. C ODE C IV

. P ROC

. art.

421, F ED

. R. C IV

. P. 3, or a lso requires the perfection of service

of process against all of the insureds.

27 right which McAvey had against either Mr. or Mrs. Lee, who were also

First Financial’s insureds. First Financial’s challenge to the

service on Ming Chun plainly came too late and was hence waived.

F ED

. R. C IV

. P. 12.

Consequently, we conclude that in the pre sent case McAvey’s

right, remedy, and judgment against First Financial was not affected

by the directed verdict dismissing Mr. and Mrs. Lee or the failure

to serve Ming Chun properly. 10

C.

First Financial next argues that the district court erred when

it ruled in limine that the jury would not be instructed, or

requested in response to an interrogatory, to as s ign a percentage

of fault to the unidenti fied criminal intruders who intentionally

attacked and robbed McAvey.

“ The district court’s instructions to the jury and spe cial

interrogatories are reviewed for abuse of discretion.” E EOC v.28

Manville Sales Corp.

, 27 F.3d 1089, 1096 (5 t h Cir. 1994). “[S]o

long as the jury is no t misled, prejudiced, or confused, and the

charge is comprehensive an d fundamentally accurate, it will be

deemed adequate and without reversible error.” D avis v. Avondale

Indus., Inc. , 975 F.2d 169, 173-74 (5 th Cir. 1992).

The district court instructed the jury to answer the following

interrogatory on comparative fault:

IV. What percentage of fault do you place on each of

the parties? (You will not be asked to assign a

percentage of fault to the intruders. The percentage of

fault between the innkeeper and the plaintiff must equal

100%.)

The Innkeeper _________%

Mr. McAvey _________%

The jury assigned eighty percent of the fault to “The Innkeeper” and

twenty percent to McAvey. First Financial contends that the jury

should h ave been instructed to assign fault to the unidentified

criminal in truders, and that if the jury had done so McAvey’s

recovery from First Financial would have been reduced substantially.

On November 6, 1995, when McAvey’s rights under delictual law

and the direct action statute accrued and became veste d against

First Financial and its insured tortfeasors, neither Louisiana Civil

Code article 1 212 nor Louisiana Code of Civil Procedure article29

1812(C), or any other pertinent Lousisiana l aw, required a trial

court to cause a diminution of McAvey’s full recovery for his

injuries by instructing a jury to assign percentages of fault to

unidentified non-party intentional criminal tortfeasors. S ee

Cava lier v. Cain’s Hydrostatic Testing, Inc. , 657 So. 2d 975 (La.

1995) (“[S]ince the Legislature did not speci fy which non-parties

should have their fault quantified by the jury, the appropriateness,

and indeed the necessity, of quantifying the fault of a particular

non-party as a subs tantive requirement of the overall statutory

scheme of comparative fault is inherently a question to be decided

by the courts.”); Veazey v. Elmwood Plantation Assocs., Ltd.

, 650

So. 2d 712, 719, 720 (La. 1994) (“Louisiana law is broad enough to

a llow comparison of fault between intentional tortfeasors and

negligent tortfeasors, [but] [] whether such a comparison should be

made must be determined by the trial court on a case by case basis,

bearing in min d the public policy concerns discussed herein[,

viz.,][a]s a general rule, [] negligent t o rtfeasors should not be

allowed to reduce their fault by the intentional fault of another

that they had a duty to prevent[;] [a negligent tortfeasor] should

not be allowed to benefit at the i nnocent plaintiff’s expense by

an allocation of fault to the intentional tortfeasor under

comparative fault principles[;][b]ecause [] intenti o nal torts are

of a fundamentally different nature than negligent torts, [] a true

comparison of fault based on an intentional act and fault based on

negligence is, in many circumstances, not possible.”)(emphasis and11 S ee Aucoin v. State DOTD , 712 So. 2d 62, 67 (La. 1998)

(“[S]ince the amendment resulted in changing the amount of damages

recoverable, the change was clearly substantive. . . . As such,

the amendment can have only prospective applicat ion.”) (citing

Socor ro v. City of New Orleans , 579 So. 2d 931, 944 (La. 1991));

see also Bourgeois v. A.P. Green Indus., In c. , 783 So. 2d 1251,

1256-58 (La. 2001)

.

30 footnotes omitted).

First Financial argues, however, that the 1996 amendments to

Louisiana Civil Code article 2323 and L ouisiana Code of Civil

Procedure article 1812 retroactively required the district court to

give the jury instructions to quantify the fault of the unidentified

non-party criminal intentional tortfeasors and there b y reduce

McAvey’s recovery from First Financial by a percentage of fault

assigned to the criminals. We need not decide whether First

Financial’s interpr etation of the meaning of these articles, as

amended, is correct because we conclude that the Louisiana Supreme

Court would not permit the retroactive application of t h ose laws,

and therefore would not regard the district court’s refusal to give

the instruction requested by First F inancial as harmful or

reversible error. 11 Assuming, without deciding, that quantification

of fault and reduction of recovery is now required by the 1996

l egislation, we are satisfied that the Supreme Court of Louisiana

would not permit or require those laws to be applied retroactively

to reduce McAvey’s recovery in the present case. Therefore, the

district court did not abuse its discretion and thus did not err

reversibly in its in limine ruling that the jury would not be given31

such instructions.

III.

First Financial presents a number of other arguments that are

without reversible merit. We will dispose of the issues raised by

these arguments without extended discussion.

First Financial argues that the jury erred in finding the

innkeeper liable, and, alternatively, that it erred in apportioning

eighty percent of the fault to the innkeeper. McAvey presented

evidence from which the jury reasonably could have foun d that the

only access to the motel’s guest rooms was through a lobby occupied

by a single desk clerk; the desk clerk was the only employee on duty

on the night the unidentified intruders robbed McAvey in his room;

although the innkeeper had found it necessary to employ security

guards occasionally in the past, there was no security guard on duty

at the motel because Ming Chun had decided to dispense with that

security measure on week nights; McAvey and the other guests were

not informed there was no security guard on duty (otherwise, McAvey

might not have been tricked into opening his door by the robber who

identified himself as “security”); the single desk clerk could not

adequately deter or prevent the entry of dangerous intruders because

he was unarmed, had been instructed to not protect or defend guests

who were being attacked or abused but to simply call the police, and

could not maintain an adequate lookout for u nauthorized intruders32

because he was required to deal with customers, patrol the premises,

and take restroom breaks during t he period when he was the sole

watchman and guardian of the motel; the only security monitor on the

premises changed perspective every five to ten seconds, rather than

disp laying a constant surveillance of the guestroom corridors and

the entryways. Either First Financial or a previous insurer had

required the erection of a barbed-wire-topped fence around all or

a part of the motel property, indicating that the surrounding area

was not safe. The defendants produced no evidence or testimony

regarding whether its security measure s and staffing levels were

adequate, other than Mr. Lee’s own conclusory insistence that he had

been a trained police officer in Taiwan and that he felt the Tomfort

Lodge was adequately secured.

We have long recognized that, under Louisiana law, although

the innkeeper is not the insurer of his guests against i njury or

loss due to violent crime, “‘[t]he innkeeper’s position vis-a-vis

his guests is similar to that of a c ommon carrier toward its

passengers. Thus, a guest is entitled to a high degree of care and

protection. The innkeeper has a duty to take reasonable precautions

against criminals.’” B anks v. Hyatt Corp.

, 722 F.2d 214, 22 0 (5 t h

Cir. 1984) (quoting Kraaz v. La Quinta Motor Inns, Inc.

, 410 So. 2d

1048, 1053 (La. 1982). This duty is “a more demanding duty of care

than that required of ot her businesses.” I d. at 220 n.5. In

enforcing this duty, we have found it proper for a jury to find an

innkeeper liable when the innkeeper was awar e of the risk of33

criminal assault on its guests but took inadequate safety

precautions. I d. at 226. The parties here do not dispute that this

is the precedent by which we are bound. Applying this law to the

evidence presented at trial, we believe that reasonable jurors could

have found the innkeeper negligent. S ee Reeves v. Sanderson

Plumbing Prods., Inc. , 120 S. Ct. 2097, 2109 (2000).

Nor can we find in the record such overwhelming evidence or

testimony regarding McAvey’s fault as to overcome the deference we

must show the jury’s apportionment of eighty percent of the fault

to the innkeepers. S ee Douglas v. DynMcDermott Petroleum Operations

Co.

, 144 F.3d 364, 369 (5 t h Cir. 1998) (“We will not disturb the

jury’s verdict unless, considering th e evidence in the light most

favorable to [McAvey], the facts and inferences po i nt so

overwhelmingly to [the innkeepers] that reasonable jurors could not

have arrived at a verdict except in [their] favor.”)

.

First Financial also argues that the quantum of damages

awarded to McAvey was excessive. However, where, as here, there was

testimony presented by both parties as to the amount of McAvey’s

future wages and the amount of damages incurred in repairing his

heel fracture, our review of the record reveals that the jury was

not clearly in error in determining the amount of total damages to

be awarded to McAvey. S ee Pendarvis v. Ormet Corp.

, 135 F.3d 1036,

1038 (5 th Cir. 1998) (holding that the issue of the amount of the

damages awarded by the jury is reviewed for clear error).34

Finally, First Financial argues that McAvey’s prior criminal

record should have been admitted into evidence to suppo rt its

hypothesis that McAvey was actually injured by drug dealers he might

have invited up to his hotel room. However, First Financial offered

no e vidence that tended to show that McAvey had invited anyone to

his room or that he had engaged in any drug activity that nigh t

.

Because the admission of McAvey’s prior criminal record would have

been for a purely speculative, rather than probative, purpose, and

would have had a comparatively high prejudicial effect, F ED

. R. E VID

.

403, we find t hat the district court did not abuse its discretion

in deciding not to admit the criminal records. S ee Uni ted States

v. Townsend

, 31 F.3d 2 62, 268 (5 t h Cir. 1994) (“This Court will

re verse a decision of the trial court in excluding or admitting

evidence only upon a showing that the trial court abused its

discretion in weighing the probative value of the evidence against

its prejudicial effect.”)

.

For the reasons assigned, the judgment of the District Court

is AFFIRMED.