NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 1221 AND 2022 CW 0783

GUSTAVE J. LABARRE, JR., ET AL. 

VERSUS

TEXAS BRINE COMPANY, LLC AND GEORGIA GULF CHEMICALS & 

VINYLS, LLC

L Judgment Rendered. APR 2 8 2023 . 

23rd Judicial District Court

In and for the Parish of Assumption

State of Louisiana

Case No. 30650

The Honorable Jason Verdigets, Judge Presiding

James M. Garner

Peter L. Hilbert

Martha Curtis

Darnell Bludworth

Brandon W. Keay

New Orleans, Louisiana

Jason Rogers Williams

Hannah Beth Salter

New Orleans, Louisiana

Kenneth J. Dupaty

Gonzales, Louisiana

Travis J. Turner

Gonzales, Louisiana

Michael H. Rubin

Justin O' Brien

Counsel for Third -Party Plaintiff/ 

Appellee

Texas Brine Company, LLC

Counsel for Appellant

Indian Harbor Insurance Company
Baton Rouge, Louisiana

Timothy E. Pujol

Barbara Lane Irwin

Gonzales, Louisiana

Antonio " Tony" Clayton

D'Ann Rose Penner

Port Allen, Louisiana

Paula M. Wellons

New Orleans, Louisiana

M. Keith Moskowitz, pro hac vice

John Grossbart, pro hac vice

Marilyn B. Rosen, pro hac vice

Chicago, Illinois

BEFORE: WELCH, LANIER, and WOLFE, JJ. 

2
LANIER, J. 

In this appeal, the appellant, Indian Harbor Insurance Company ( Indian

Harbor), seeks review of the Twenty -Third Judicial District Court' s denial of a

motion for partial summary judgment. Additionally, Indian Harbor has applied for

a supervisory writ regarding the same issue addressed in the instant appeal. For the

following reasons, we dismiss the appeal and deny the writ. 

FACTS AND PROCEDURAL HISTORY

The instant case involves extensive litigation dating back to 2007. The

pertinent facts are as follows: In 1965, Pierre LaBarre granted a salt and storage

lease of land he owned to a company, which ultimately assigned its interest to

Texas Brine Company, LLC and Georgia Gulf Chemicals and Vinyls, LLC

collectively Texas Brine). The LaBarre plaintiffs' filed suit against Texas Brine

in December 2007 alleging, among other things, that Texas Brine breached the

lease by disposing of waste materials in caverns or "jugs" on the LaBarre property. 

A May 2009 second supplemental and amending petition added claims for water

and soil contamination from the spillage and/or disposal of toxic processing wastes

on, in, and adjacent to the LaBarre property without consent of the LaBarre

plaintiffs. According to Texas Brine, the second supplemental and amending

petition transformed the action from a lease dispute to a property contamination

suit. 

Indian Harbor, as insurer for Texas Brine, issued two pollution and

remediation legal liability (" PARLL") policies, one providing coverage from

November 2005 to November 2008, and the other providing coverage from

November 2008 to November 2011. Both policies covered Texas Brine locations

l " LaBarre plaintiffs" collectively refers to all the plaintiffs who now share an interest in Pierre

LaBarre' s property. 

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nationwide, including three locations in Louisiana and two in New York. The

policies contain a New York choice of law provision, which reads: 

Choice of Law - All matters arising hereunder including questions

related to the validity, interpretation, performance and enforcement of

this Policy shall be determined in accordance with the laws and

practice of the State of New York ( notwithstanding New York' s

conflicts of law rules). 

In December 2012, Texas Brine filed a third -party demand against Indian

Harbor, alleging entitlement to defense and indemnification under the 2008 policy

for the LaBarre plaintiffs' claims. Indian Harbor answered the third -party demand, 

denying that the 2008 policy was applicable and denying that the 2008 policy

provided coverage and indemnification for Texas Brine' s actions. Indian Harbor

also reconvened against Texas Brine, asserting a claim for partial rescission of the

2008 policy based upon allegedly false and incomplete statements made by Texas

Brine in its sworn Facilities Pollution Application Form for its 2008 insurance

policy, upon which the 2008 policy was based. 

In October 2013, Indian Harbor moved for partial summary judgment

regarding choice of law, noting there were material differences between New

York, Texas, and Louisiana law on the various issues in the case. The trial court

set aside the motion and did not rule upon it at that time. Both Indian Harbor and

Texas Brine proceeded to file numerous pleadings and exceptions. In a judgment

signed August 22, 2016, the trial court denied exceptions of no cause of action and

prematurity filed by Texas Brine.' The trial court also ruled that the contractual

choice of law clause was inapplicable since there was no inherent link to the State

ofNew York in the instant case, and Louisiana law would therefore apply.3

2 As these exceptions were not provided to this Court, we cannot determine the bases for Texas

Brine' s objections of no cause of action and prematurity. 

3 In open court on October 7, 2016, in response to Indian Harbor' s argument that the trial court' s

ruling on the choice of law issue was outside the scope of the objections pled in the exceptions, 

the trial court stated that the exception of prematurity allowed the trial court to consider evidence

outside the pleadings, that evidence was submitted that New York had no connection to the claim

4
Thereafter, Indian Harbor renewed its motion for partial summary judgment

regarding choice of law. The trial court denied Indian Harbor' s motion, again

finding that Louisiana law applied to the choice of law issue. Indian Harbor

moved for reconsideration of this ruling, which was denied for the same reasons

given in its ruling on the exceptions of no cause of action and prematurity. Indian

Harbor applied for supervisory writs on the denial of its motion for partial

summary judgment, which this Court denied on January 23, 2017. See LaBarre v. 

Texas Brine Company, LLC, 2016- 1466 ( La. App. 1 Cir. 1123117), 2017 WL

325239 (unpublished writ action).' 

Indian Harbor again moved for partial summary judgment on the choice of

law issue, following the Louisiana Supreme Court' s opinion in Creekstone Juban I, 

L.L.C. v. XL Insurance America, Inc., 2018- 0748 ( La. 518119), 282 So.3d 1042. 

Tracking the supreme court' s language regarding party autonomy and freedom to

contract, Indian Harbor asserted that New York law clearly applied to the instant

case, making the choice of law clause in the insurance contract effective. 

Alternatively, Indian Harbor urged that if the choice of law clause was not upheld, 

Texas law rather than Louisiana law should apply. 

Texas Brine opposed Indian Harbor' s motion, asserting that the trial court

had considered the merits of the choice of law issue and concluded that Louisiana

law applied. The trial court denied Indian Harbor' s motion. Indian Harbor applied

for supervisory writs, and also filed the instant appeal. On October 11, 2022, this

Court referred the writ to the panel with which the appeal was lodged. See

LaBarre v. Texas Brine Company, LLC, 2022- 0783 ( La. App. 1 Cir. 10/ 11/ 22) 

unpublished writ action). 

at issue, and that Indian Harbor argued at the hearing on the exception that New York law

applied. 

This Court stated therein: " This Court declines to exercise its supervisory jurisdiction. The

criteria set forth in Herlitz Construction Company, Inc. v. Hotel Investors ofNew Iberia, Inc., 

396 So.2d 878 ( La. 1981) ( per curiam) are not met." 

5
DISCUSSION

Motion for Appeal

On May 26, 2022, the hearing on the motion for partial summary judgment

was held. Following argument, the trial court denied Indian Harbor' s motion

finding Creekstone was not relevant to reverse the previous decision on the choice

of law issue. Indian Harbor then orally moved that the judgment be certified as

appealable, arguing that it was an important issue to be decided prior to trial. The

trial court agreed and designated the judgment as final and appealable pursuant to

La. C. C.P. art. 1915( B). A written judgment reflecting this ruling was executed

and signed by the trial court on June 30, 2022. 

A judgment that does not determine the merits but only preliminary matters

in the course of the action is an interlocutory judgment. La. C. C.P. art. 1841. " An

interlocutory judgment is appealable only when expressly provided by law." La. 

C.C.P. art. 2083( 0). Further, the provisions of La. C.C.P. art. 1915( B) do not

apply to a denial of a motion for partial summary judgment. See La. C.C.P. art. 

1915( B)( 1). Similarly, La. C.C.P. art. 968 provides, in pertinent part, that: " An

appeal does not lie from the court' s refusal to render any judgment on the pleading

or summary judgment." Thus, a denial of a motion for summary judgment, in

whole or in part, is an interlocutory judgment that is not appealable and cannot be

certified as such pursuant to La. C.C.P. art. 1915( B). Ascension School Employees

Credit Union v. Provost Salter Harper & Alford, L.L.C., 2006- 0992 ( La. App. 1

Cir. 3123107), 960 So.2d 939, 940. 

Based on the foregoing, although La. C.C.F. 1915( B) allows a trial court to

designate a partial summary judgment as a final judgment, it does not provide that

a judgment denying a motion for summary judgment can be so designated. 

Moreover, La. C. C.P. art. 968 expressly provides that a judgment denying a motion

for summary judgment is not appealable. See Young v. City ofPlaquemine, 2004- 

C, 
2305 ( La. App. 1 Cir. 11/ 4/ 05), 927 So.2d 408, 410- 11. The trial court' s judgment

on the motion for partial summary judgment is not appealable, and we therefore

dismiss the appeal. 

91'ritAction

Supervisory jurisdiction may be exercised to reverse a trial court' s denial of

a motion for summary judgment, and to enter summary judgment in favor of the

mover. Campbell v. Markel American Ins. Co., 2000- 1448 ( La. App. 1 Cir. 

9/ 21/ 01), 822 So.2d 617, 620, writ denied, 2001- 2813 ( La. 1/ 4/ 02), 805 So.2d 204. 

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. 

Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396

So.2d 878 ( La. 1981) ( per curiam). This general policy, however, should not be

applied mechanically. When the denial of the motion is arguably incorrect, when a

reversal will terminate the litigation, and when there is no dispute of fact to be

resolved, judicial efficiency and fundamental fairness to the litigants dictates that

the merits of the application for supervisory writs should be decided in an attempt

to avoid the waste of time and expense of a possibly useless future trial on the

merits. See Id. 

In the instant case, we find the denial of Indian Harbor' s motion for partial

summary judgment is not arguably incorrect. At issue in Creekstone is an

insurance contract that contained a forum selection clause, which contained a

choice of law provision. According to Creekstone, forum selection clauses in

contracts are enforceable, except in very limited circumstances. See Creekstone, 

282 So. 3d at 1047- 48, citing Shelter Mut. Ins. Co. v. Rimkus Consulting Group, 

Inc. of Louisiana, 2013- 1977 ( La. 7/ 1/ 14), 148 So.3d 871, 879- 82. While it is

plausible that the holding in Creekstone could ultimately apply to choice of law

clauses, the supreme court specifically declined to address La. R.S. 22: 868(A)( 1), 

7
which prohibits choice of law clauses in insurance contracts.5 Creekstone, 282

So.3d at 1049, n. 7. Therefore, the question whether Creekstone would apply to

choice of law clauses remains unanswered. 

Based on the present law and jurisprudence, we do not find that the trial

court was arguably incorrect in finding that Creekstone was irrelevant to the instant

case. In order to avoid piecemeal and potentially contradictory rulings by this

Court, the choice of law issue would be more appropriately addressed on appeal

after a trial on the merits. As such, pursuant to Herlitz, we deny Indian Harbor' s

application for supervisory writs. 

APPEAL DISMISSED; WRIT DENIED. 

5 Specifically, La. R.S. 22: 868( A)(1) states, in pertinent part: 

A. No insurance contract delivered or issued for delivery in this state and

covering subjects located, resident, or to be performed in this state, or any

group health and accident policy insuring a resident of this state regardless of

where made or delivered, shall contain any condition, stipulation, or

agreement either: 

1) Requiring it to be construed according to the laws of any other state or country

except as necessary to meet the requirements of the motor vehicle financial

responsibility laws of such other state or country. 

8