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 28 2023 .

23rd Judicial District Court In and for the Parish ofAssumption

State of Louisiana Case No. 30650 

### The HonorableJason 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 forThird - Party Plaintiff/ Appellee 

### Texas Brine Company, LLC

Counsel for Appellant Indian Harbor Insurance CompanyBaton 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.

2LANIER,J. In this appeal, the appellant, Indian Harbor Insurance Company ( Indian Harbor), 

### seeks review ofthe Twenty - Third Judicial District Court's denial of a motion forpartial summaryjudgment. 

### Additionally, Indian Harbor has applied for a supervisory writregardingthe same issue addressed inthe instant appeal. For the 

### following reasons,we dismissthe appeal and denythe 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 ofwaste 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/ordisposal oftoxic 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" collectivelyrefersto allthe plaintiffswho nowshare aninterest in Pierre LaBarre' s property. 9nationwide, 

### including three locations in Louisiana and two in New York. The

policies contain a New York choice oflaw 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 underthe 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 ofthe 

### 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,uponwhichthe 2008 policywas 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 lawwould therefore apply.3

2 As these exceptions were not provided to this Court, we cannot determine the bases for Texas Brine's objections ofno cause ofaction 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 ofthe objections pled in the exceptions, the trial court stated that the exception ofprematurity 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 summaryjudgment



### 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 ofthis ruling, which was denied for the same reasons given in its ruling on the exceptions ofno cause ofaction and prematurity. Indian 

### Harbor applied for supervisory writs on the denial of its motion for partial summaryjudgment, 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 summaryjudgment on the choice of law issue, following the Louisiana Supreme Court's opinion in CreekstoneJuban 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 ifthe choice oflaw clause was not upheld, Texas law ratherthan Louisiana lawshould apply. Texas Brine opposed Indian Harbor's motion, asserting that the trial court had considered the merits ofthe 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." 5DISCUSSION MotionforAppeal 

### On May 26, 2022, the hearing on the motion for partial summaryjudgment was held. 

### Following argument, the trial court denied Indian Harbor's motion 

### finding Creekstone was not relevantto reverse the previous decision on the choice of law issue. 

### Indian Harbor then orally moved that the judgment be certified as 

### appealable, arguing that itwas an important issue to be decided priorto 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 bythetrial court on June 30, 2022. 

### Ajudgment that does not determine the merits but only preliminary matters in the course ofthe action is an interlocutoryjudgment. La. C.C.P. art. 1841. " An 

### interlocutoryjudgment 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 ofa motion for partial summaryjudgment. 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 anyjudgment on the pleading 

### or summary judgment." Thus, 

### a denial of a motion for summary judgment, in 

### whole or in part, is an interlocutoryjudgment 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 summaryjudgment as afinaljudgment, it does not provide that 

### a judgment denying a motion for summary judgment can be so designated. Moreover,La.C.C.P. art.968 expresslyprovides thatajudgment denying a motion for summaryjudgment is not appealable. 

### See Youngv. CityofPlaquemine, 2004- C,

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



### on the motion for partial summaryjudgment is not appealable, and we therefore dismiss the appeal. 91'ritAction 

### Supervisoryjurisdiction may be exercised to reverse atrial court's denial of a motion for summaryjudgment, and to enter summaryjudgment in favor ofthe

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 ofthe court. Herlitz Construction Company, Inc. v. Hotel Investors ofNew Iberia, Inc., 396 So.2d 878 ( La. 1981) ( per curiam). 

### This general policy, however, should not be applied mechanically. 

### When the denial ofthe 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 ofthe 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. ofLouisiana, 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),

7which 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 

### courtwas arguably incorrect in findingthat Creekstonewas irrelevantto 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 forsupervisorywrits. 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 ofthis state regardless of where made or delivered, shall contain any condition, stipulation, or agreement either: 1) Requiring itto be construed according to the laws ofany other state orcountry except as necessary to meet the requirements of the motor vehicle financial responsibility laws ofsuch other state orcountry. 8