McAvey v. Lee

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 Chen-

Horng Lee (Mr. Lee), his wife, Chin-Li Lee (Mrs. Lee), and Ming

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

insureds” or “the innkeepers”), and First Financial Insurance

Company (“First Financial”), the insureds’ commercial liability

insurer, for damages for personal injury to McAvey caused by the

negligence of the insureds and their employees in failing to take

1
reasonable precautions and to exercise proper vigilance for the

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

fractured his heel while chasing two unidentified robbers who had

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

further 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 identified 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. At the close

of the plaintiff’s case at trial, the district court 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 injuries 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 not

2
instructing the jury to determine whether 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 next 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 lease formalizing

their existing oral 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 stay 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 assailant, the other grabbed McAvey’s

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

3
the motel stairs. During the chase, the second robber made contact

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

heel 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 defend 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 his 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 motion, 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, decreeing that the

policy did not include an assault and battery exclusion.

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

attorney, James Swanson, moved orally for a JMOL to dismiss the

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

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

4
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 against 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 denied, First Financial moved for a JMOL

pursuant to Rule 50(a)(2) to dismiss McAvey’s suit on the grounds

that Louisiana’s direct 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 only 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 as insurer of Ming Chun, awarding McAvey a net sum of

$301,600 in damages after discounting his recovery by his

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

trial were denied. First Financial appealed from the district

5
court’s final judgment. McAvey appealed from the JMOL dismissing

his action 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 contends that the policy for 1995, the

applicable policy year, excluded coverage for losses arising from

assault or battery; and that McAvey’s injuries resulted from a

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

coverage for such 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, which

1
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
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 by 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 CHARLES ALAN

WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL

3D § 2716 (1998) (quoting FED. R. CIV. P. 56(c)) (citing, inter alia,

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

1985); McCrae v. Hankins, 720 F.2d 863 (5th Cir. 1983)). “[O]n

summary judgment the inferences to be drawn from the underlying

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

and exhibits] must be viewed in the light most favorable to the

party opposing the motion.” United States v. Diebold, Inc., 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

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

(1962); see also John v. La. Bd. of Trustees, 757 F.2d 698 (5th Cir.

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

The record contains numerous documents pertaining to contracts

of commercial general liability insurance between First 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 connection

7
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; Policy 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. 701192; Policy period: April 26, 1995 to April 26,

1996 (hereinafter “1995 policy”).

Each policy incorporated and/or deleted by reference other

documents, 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(11/85)[.]” (footnote and other forms listed omitted). That

form, entitled “General Commercial Liability Coverage Part

2
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
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)

(Intermediate 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) Expected 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 or suppression of an assault or

battery.

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

to: a. ‘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.” 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 continue or re-adopt the assault or battery

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

9
 In consideration of the payment of the premium, it is

agreed that the Policy designated herein is renewed for

the period stated, subject to all its terms unless

otherwise specified below.

RENEWAL TERMS:

. . . In consideration of our continuing 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 clearly

10
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-G-

042 492 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-adopt the assault or battery

exclusion. 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 exclusion 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 coverage of the insured. Huey T. Littleton Claims, Inc. v.

Employers Reinsurance Corp., 933 F.2d 337, 340 (5th 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 LA. CIV. CODE ANN. art. 2056

(West 2000) (“In case of doubt 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 one

11
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 Erie held,3 to apply Louisiana law,

which here mandates that we resolve the 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, LA. REV. STAT. ANN. § 22:655 (West 2000),

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

3
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Under Erie,
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. Id. at 78. If the decisions of that court are silent on
an issue, we must conscientiously determine how that court would
decide the issue before us, looking to the sources of law–including
intermediate appellate court decisions of that state–that the
state’s highest court would look to for persuasive authority.
Transcont. Gas v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir.
1992); see also 19 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 4507, at 126 (2d ed. 1996).

12
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 point, First Financial urges us to Erie guess that the Supreme

Court of Louisiana would hold that the statute bars the district

court’s judgment against the insurer because none of the insureds

was a party to the direct action against the insurer when final

judgment was rendered against the insurer. According to First

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

presence of at least one of the insureds.”

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

conclusion 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 opening provisions of

section 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) provisions

restricting suits against an “insurer alone,” which were added to

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

13
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

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

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

plaintiff’s right, remedy, 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

jurisprudential 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 statute would be

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

that establishes for automobile accident victims and other injured

plaintiffs substantive rights and remedial actions, accruing

immediately with the insured tortfeasor’s wrongful act, which are

enforceable directly against the insurer to the same extent as

14
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,

LA. REV. STAT. ANN. § 655(D) (West 2000), can be effectuated only

through the substantive rights and direct remedial 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 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 the

insurer alone, or against both 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 whereby the insurer may

15
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

legal purposes, they are irreconcilable and cannot all be given

meaning as required by one of the paramount principles of statutory

construction. See LA. CIV. CODE ANN. art. 13 (West 2000) (“Laws on

the same subject matter must be interpreted 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.”); LA. REV. STAT.

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

context and shall be construed according to the common and approved

usage of the language.”); see 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 purpose, that some effect is to be

given to each such provision, and that no unnecessary words or

provisions were used. . . . The Legislature is presumed to have

enacted each statute with deliberation and with full knowledge 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 harmonizes 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 which will not do violence to the plain words of the

16
statute and will carry out the Legislature's intention.”).

Accordingly, we calculate that the Supreme Court of Louisiana

would hold that section 655(B)(1) of the direct action statute

consists of three complementary elements4: (1) the injured

plaintiff’s substantive right against the insurer, which accrues

derivatively with his substantive 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 the provision ending with subparagraphs (a)-(e) of section

4
The distinctions between rights, remedies, and procedure
have been clearly described by Professor Dobbs. See 1 DAN B. DOBBS,
DOBBS LAW OF REMEDIES §§ 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 remedies 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,
however, remedies questions and remedies law are quite
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.” See A.N. YIANNOPOULOS, PROPERTY § 239, at 472-74 (2 LOUISIANA CIVIL
LAW TREATISE) (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. See id.; 1 DOBBS, supra; JULIUS STONE, THE PROVINCE AND FUNCTION
OF LAW: LAW AS LOGIC, JUSTICE, AND SOCIAL CONTROL, A STUDY IN JURISPRUDENCE
128-29 (reprint 1973).

17
655(B)(1), which, in effect, provide the insurer a procedural means

to avoid defending a direct action alone, except in the

circumstances listed, by objecting to the non-joinder 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 the 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 brought against

either the insured or the insurer under the general

rules of venue prescribed by Code of Civil Procedure

Art. 42 only. However, such action may be brought

5
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
 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 offense 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 limits 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 coverage to all insureds, whether

they are named insured or additional insureds under the

6
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
 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 bankruptcy, 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. Orl. 1929),

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

of a person injured by an insured tortfeasor 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 unsuccessful efforts to collect that

judgment[.]” Id. at 163.

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

7
This second emboldened part of the statute was added by
1956 La. Acts 475.

20
codifying the Edwards holding and providing that the injured person,

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

insurer . . . either against the insurer company alone 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 Supreme 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. Edwards v. Royal Indem. Co., 161 So. 191 (La.

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

v. Clancy, 162 So. 734 (La. 1935) (holding that insurer could not

plead father’s immunity to suits from children); Rome v. London &

Lancashire Indemnity Co. of America, 160 So. 121 (La. 1935), on

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

could not plead governmental immunity of insured); Harvey 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 are executed for the benefit of all injured

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

21
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 violation of a policy condition by delaying

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

than a year. Id. at 129 (“[I]f at the time of injury, the

circumstances are 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. 1st Cir. 1997); Murray v. City of Bunkie,

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

Pierre Marine, Inc., 663 So. 2d 859, 863 (La. Ct. App. 5th Cir.

1996); Williams v. Lemaire, 655 So. 2d 765, 767-68 (La. Ct. App. 4th

Cir. 1995).

Of course, 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. See,

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

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

22
act cap also limits plaintiff’s direct recovery from insurer).

The state supreme court and appellate courts, the United

States 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. See Quinlan v. Liberty Bank & Trust Co., 575

So. 2d 336, 352 (La. 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 policy

written pursuant 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 policy as a liability or an indemnity contract.”) (internal

citations omitted); West v. Monroe Bakery, Inc., 46 So. 2d 122, 123

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

consistently as conferring substantive rights on third parties 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 (5th Cir. 1997)

(quoting Quinlan, supra); Auster Oil & Gas, Inc. v. Stream, 891 F.2d

570, 577-78 (5th Cir. 1990) (quoting Quinlan, supra) (citing West,

supra); In re Combustion, Inc., 960 F. Supp. 1056, 1061 (W.D. La.

23
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 insurer which an injured party may elect in

lieu of his action against the tortfeasor”); WILLIAM S. MCKENZIE & H.

ALSTON JOHNSON III, INSURANCE LAW & PRACTICE § 23, at 32-33 (15 LOUISIANA

CIVIL LAW TREATISE 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 direct action statute in the 1988

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

The 1988 amendment merely added a procedural method by which the

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, courts have spoken of the right loosely as a
“procedural right,” a “cause of action,” a “right of action,” or in
other imprecise terms. See, 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 not uncommon. See, e.g.,
YIANNOPOULOS, 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 DOBBS, 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
insurer can object to the non-joinder of the insured (other than in

the exceptional circumstances listed), which operates as an

exception to the principle of Louisiana Code of Civil Procedure

article 643, which provides that the injured 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 substantive-

remedial provision verbatim and intact when it added the joinder

provision in 1988, the legislature obviously did not intend to

abrogate the right and remedy which had been enforced for seventy-

one years; instead it meant simply to add a procedural rule of

joinder to accompany the pre-existing right and 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 read as

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

procedure.9

9
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 general provisions for
joinder of parties, specifically Louisiana Code of Civil Procedure

25
 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 dependent upon joinder of the insureds.

Even 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 discretion because the motion

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

in the case, two years after the filing of the initial

complaint—that granting it would have prejudiced the parties present

with undue delay; the district court 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 had no opportunity

to defend itself. See Pulitzer-Polster v. Pulitzer, 784 F.2d 1305,

1309 (5th Cir. 1986); Schutten v. Shell Oil Co., 421 F.2d 869, 873-

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

As we have suggested above, the judgment against First

Financial was based only on the delictual right which McAvey had

against First Financial’s insured, Ming Chun, not on any delictual

articles 641-643. Articles 641 and 642, which mirror the
provisions of Federal Rule of Civil Procedure 19, require a court
to determine via a “close factual 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
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.

FED. R. CIV. P. 12.

Consequently, we conclude that in the present 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 assign a percentage

of fault to the unidentified criminal intruders who intentionally

attacked and robbed McAvey.

“The district court’s instructions to the jury and special

interrogatories are reviewed for abuse of discretion.” EEOC v.

10
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 LA. CODE CIV. PROC. art.
421, FED. R. CIV. P. 3, or also requires the perfection of service
of process against all of the insureds.

27
Manville Sales Corp., 27 F.3d 1089, 1096 (5th Cir. 1994). “[S]o

long as the jury is not misled, prejudiced, or confused, and the

charge is comprehensive and fundamentally accurate, it will be

deemed adequate and without reversible error.” Davis v. Avondale

Indus., Inc., 975 F.2d 169, 173-74 (5th 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 have been instructed to assign fault to the unidentified

criminal intruders, 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 vested against

First Financial and its insured tortfeasors, neither Louisiana Civil

Code article 1212 nor Louisiana Code of Civil Procedure article

28
1812(C), or any other pertinent Lousisiana law, 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. See

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

1995) (“[S]ince the Legislature did not specify 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 substantive 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

allow 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 mind the public policy concerns discussed herein[,

viz.,][a]s a general rule, [] negligent tortfeasors 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 innocent plaintiff’s expense by

an allocation of fault to the intentional tortfeasor under

comparative fault principles[;][b]ecause [] intentional 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 and

29
footnotes omitted).

First Financial argues, however, that the 1996 amendments to

Louisiana Civil Code article 2323 and Louisiana 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 thereby reduce

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

assigned to the criminals. We need not decide whether First

Financial’s interpretation 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 those laws,

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

the instruction requested by First Financial as harmful or

reversible error.11 Assuming, without deciding, that quantification

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

legislation, 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 given

11
See 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 application.”) (citing
Socorro v. City of New Orleans, 579 So. 2d 931, 944 (La. 1991));
see also Bourgeois v. A.P. Green Indus., Inc., 783 So. 2d 1251,
1256-58 (La. 2001).

30
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 found 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 unauthorized intruders

31
because he was required to deal with customers, patrol the premises,

and take restroom breaks during the 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

displaying 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 measures 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 injury or

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

his guests is similar to that of a common 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.’” Banks v. Hyatt Corp., 722 F.2d 214, 220 (5th

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 other businesses.” Id. 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 aware of the risk of

32
criminal assault on its guests but took inadequate safety

precautions. Id. 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. See 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. See Douglas v. DynMcDermott Petroleum Operations

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

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

favorable to [McAvey], the facts and inferences point 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. See Pendarvis v. Ormet Corp., 135 F.3d 1036,

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

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

33
 Finally, First Financial argues that McAvey’s prior criminal

record should have been admitted into evidence to support its

hypothesis that McAvey was actually injured by drug dealers he might

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

no evidence that tended to show that McAvey had invited anyone to

his room or that he had engaged in any drug activity that night.

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, FED. R. EVID.

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

in deciding not to admit the criminal records. See United States

v. Townsend, 31 F.3d 262, 268 (5th Cir. 1994) (“This Court will

reverse 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.

34