United States Court of Appeals,
Fifth Circuit.
No. 91-3220.
Jonathan P. GRUBBS, Plaintiff-Appellant,
v.
GULF INTERNATIONAL MARINE, INC., et al., Defendants-Appellees.
Feb. 7, 1994.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before KING, JOHNSON and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Jonathan P. Grubbs appeals the district court's grant of summary judgment dismissing his
Jones Act/general maritime law action against his employer, Gulf International Marine, Inc. (Gulf),
and its insurer, American Steamship Owners' Mutual Protection and Indemnity Association, Inc.
(American Steamship). We certified to the Louisiana Supreme Court the question of whether a P &
I insurance policy is a marine insurance policy exempt from application of Louisiana's Direct Action
Statute. The Louisiana Supreme Court granted certification and answered that question in the
negative. We now apply that ruling in our disposition of this appeal. We vacate in the district court's
order granting summary judgment and remand for further proceedings.
I.
The summary judgment evidence revealed the following undisputed facts:
In 1986, Jonathan Grubbs was injured in Texas territorial waters while employed as an
engineer on the tug, the M/V THOMAS HERBERT. Gulf, Grubbs' Louisiana-based employer, was
insured under a marine protection and indemnity (P & I) policy issued by American Steamship.
American Steamship has its only U.S. office in New York, New York. It delivered the policy to
Gulf's broker, Seahawk International, Inc. (Seahawk), at Seahawk's New York office. The principals
of Gulf made several requests to American Steamship and Seahawk for a copy of t he policy, but
neither complied with these requests. American Steamship and Seahawk did however furnish
certificates of insurance to Gulf's customers upon Gulf's request.
Grubbs filed suit against Gulf and American Steamship in December 1986 to recover for his
injuries. American Steamship filed a motion for summary judgment on a number of grounds.
American Steamship argued first that it was exempt from application of the Direct Action Statute
because the P & I policy it issued to Gulf was an "ocean marine" insurance policy within the meaning
of an exception to the Direct Action Statute. It also argued that it was not amenable to suit under
the Louisiana Direct Action Statute because the accident occurred outside Louisiana and the policy
was neither written nor delivered in Louisiana. American Steamship further contended that it
committed no independent tort of failure to pay maintenance and cure because, under the terms of
Gulf's P & I policy, American Steamship was only obligated to reimburse Gulf for maintenance and
cure if Gulf actually paid to an injured employee. According to American Steamship, Gulf had never
paid maintenance and cure to Grubbs.
Grubbs argued to the district court that a material issue of fact was presented on whether the
policy had been constructively delivered to Gulf in Houma, Louisiana, and thus subject to the Direct
Action Statute. He also argued that American Steamship's refusal to deliver the policy in Louisiana
as requested was a strategy to avoid the Direct Action Statute and that such conduct should not be
allowed to defeat application of the statute.
The district court concluded that American Steamship's policy was not delivered in Louisiana
and thus the Direct Action Statute did not apply. Based on this conclusion, the district court granted
American Steamship's motion for summary judgment. The defendants later informed the court that
Gulf's corporate charter had been dissolved upon the completion of its bankruptcy proceedings and
that Gulf was no longer in existence. The court then dismissed the action against Gulf, the only
remaining defendant, because the corporate entity had been dissolved.
Following argument, we reversed the district court's dismissal of Gulf, but we affirmed the
district court's dismissal of American Steamship because the P & I policy issued to Gulf was an
"ocean marine" policy exempt from application of the Direct Action Statute. Grubbs, in his
application for rehearing, pointed out two contrary Louisiana appellate court decisions on this issue.1
We then granted rehearing, withdrew the opinion and certified to the Louisiana Supreme Court the
following question of law:
Whether the Louisiana Direct Action Statute, LSA-R.S. 22:655 (West Supp.1992) permits
an injured party to maintain a direct action against a marine protection and indemnity insurer.
Grubbs, 985 F.2d 762, withdrawing 975 F.2d 186 (5th Cir.), certification accepted, 616 So.2d 691
(La.1993).
In response to our certified question, the Louisiana Supreme Court held that the Louisiana
Direct Action Statute permits an injured party to maintain a direct action against a marine P & I
insurer. Grubbs, 625 So.2d 495 (La.1993). Because the Direct Action Statute applies to Gulf's P
& I policy, we must now determine whether the facts surrounding Grubbs' accident or the relationship
between American Steamship and its insured permit Grubbs to maintain this direct action.
II.
A.
The Louisiana Direct Action Statute permits an action against an insurer of a tort-feasor if the
plaintiff can establish one of the following:
(1) the accident occurred in Louisiana;
(2) the policy was written in Louisiana; or
(3) the policy was delivered in Louisiana.
LSA-R.S. 22:6552; Webb v. Zurich Insurance Co., 251 La. 558, 205 So.2d 398 (1967). In this case,
the parties agree that the policy was neither written in Louisiana nor physically delivered in Louisiana.
1
See Hae Woo Youn v. Maritime Overseas Corp., 605 So.2d 187 (La.App. 5th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 2342, 124 L.Ed.2d 252 (1993), writ granted, 609 So.2d 239
(La.1992), vacated in part on other grounds, 623 So.2d 1257 (La.1993), and Treadway v. Certain
Underwriters at Lloyds, No. 92-C-1500 (La.App. 4th Cir. Sept. 15, 1992).
2
LSA-R.S. 22:655 provides in pertinent part:
This right of direct action shall exist whether the policy of insurance sued upon
was written or delivered in the State of Louisiana or not and whether or not such policy
contains a provision forbidding such direct action, provided the accident or injury
occurred within the State of Louisiana.
Grubbs asserts, however, that the Direct Action Statute should apply for two reasons. First, Grubbs
argues that American Steamship constructively delivered the policy to its insured in Louisiana.
Second, Grubbs argues that American Steamship's failure to pay maintenance and cure benefits is an
injury which occurred in Louisiana.
B.
Grubbs argues that he meets the requirements of the Direct Action Statute because the policy
was constructively delivered in Louisiana. Grubbs contends that Gulf made several requests for a
copy of the policy from American Steamship and American Steamship fraudulently refused to comply
with these requests to avoid triggering Louisiana's Direct Action statute. In support of his argument,
Grubbs points to Schexnider v. McDermott Int., Inc., 688 F.Supp. 234, 236-38 (W.D.La.1988),
where a policy insuring McDermott International and all of its subsidiaries was delivered to
McDermott's agent in Houston. The agent delivered the policy to a McDermott subsidiary in
Houston; copies of the policy were then forwarded by the subsidiary t McDermott's corporate
o
headquarters in New Orleans. The summary judgment evidence was uncontradicted that the delivery
was orchestrated solely to avoid application of Louisiana's Direct Action Statute.
The court regarded the Houston delivery as "nothing other than fiction," and stressed that the
coverage was procured by and the policies were to be administered by the parent corporation in New
Orleans. Id. at 237. The court therefore treated the Texas delivery as a sham and deemed the
policies delivered in Louisiana for purposes of the Louisiana Direct Action Statute.3 Id.
In its opinion responding to our certified question, the Louisiana Supreme Court strongly
suggested that when an insurer fraudulently refuses to deliver a policy in Louisiana for the purpose
of evading the Direct Action Statute, the policy will be considered delivered in Louisiana for purposes
3
The Schexnider court distinguished Signal Oil & Gas Co. v. Barge W-701, 654 F.2d 1164,
1175 (5th Cir.1981), where the court held that delivery to a company's parent outside of
Louisiana did not amount to delivery under the Direct Action Statute. The Schexnider court
noted that the policy in Signal Oil was delivered to the location where it was procured and where
it would be administered—the parent corporate headquarters. Conversely, the policy in
Schexnider was delivered to the Houston subsidiary and copies were immediately sent to the New
Orleans parent headquarters, where claims arising under the policy would be administered.
of the Direct Action Statute.4
The Gulf owners testified that they repeatedly asked American Steamship to furnish it with
a copy of the P & I policy. Gulf's inquiries were prompted by requests from the bankruptcy court
presiding over Gulf's bankruptcy proceedings in 1984. Neither American Steamship nor Gulf's
broker, Seahawk, responded to these requests. The only explanation American Steamship offers for
its failure to respond is that it generally deals only with brokers, not individual insureds. American
Steamship claims that in accordance with this established procedure, it had previously delivered a
policy to the broker, Seahawk, in New York. American Steamship offers no explanation for
establishing this procedure. More importantly, American Steamship does not explain why it rigidly
adheres to such a practice when dealing with a simply and easily satisfied request from its insured for
a copy of the insurance policy. American Steamship's unexplained refusal to provide a copy of the
policy during Gulf's pending bankruptcy proceedings lends weight to Grubbs' argument that American
Steamship's refusal was based on its desire to avoid the Direct Action Statute. American Steamship
argues that its policy is an indemnity policy, requiring the insured to pay the loss before claiming
reimbursement or indemnity from American Steamship. According to American Steamship, if its
insured is insolvent and unable t o pay the loss, American Steamship's obligation to pay is never
triggered. If it was amenable to suit under the Direct Action Statute, however, American Steamship
could be held direct ly liable to an injured party and would not be able to rely on this indemnity
argument. We conclude that Grubbs has raised a genuine issue of material fact as to whether
American Steamship's refusal to deliver the P & I policy was motivated by a desire to avoid the Direct
Action Statute. We must therefore remand this case for trial of this issue.
C.
4
In a footnote, the Louisiana Supreme Court stated:
[Grubbs] argues that American Steamship's failure to deliver the policy in
Louisiana was calculated to avoid the Direct Action Statute and that such conduct
should not be allowed to defeat the application of the statute. Although on the
facts presented we find Grubbs' argument compelling, we decline to address issues
beyond the scope of the precise legal question certified.
Grubbs, 625 So.2d at 495.
In the alternative, Grubbs relies on Herbert v. Aetna Casualty and Surety Co., 400 So.2d 695
(La.App. 1st Cir.1981), to support his argument that a tort occurred in Louisiana when Gulf and
American Steamship failed to pay maintenance and cure. In Hebert, an intermediate Louisiana
appellate court noted that when an employer or its insurer capriciously fails to pay maintenance and
cure benefits, an "accident" occurs in Louisiana if the claim was administered in Louisiana and the
insurer's representative who denied maintenance and cure was based in Louisiana. Id. at 698. The
district court did not address this argument. The district court on remand should consider this
contention.
III.
The district court also dismissed Grubbs' case against Gulf because the company's corporate
charter was dissolved following the conclusion of its bankruptcy proceedings. The court noted that
there was no longer a defendant in the case. We disagree with that conclusion.
Louisiana law provides that "upon issuance of the certificate of dissolution, the corporate
existence shall cease as of the effective date stated in the certificate, except for the sole purpose of
any action or suit commenced theretofore by, or commenced timely against, the corporation."
L.S.A.-R.S. § 12:148(C). Actions against dissolved corporations do not abate, even after dissolution.
In River Cities Constr. Co. v. Barnard & Burk, Inc., 413 So.2d 666 (La.App. 1st Cir.1982), the
plaintiff corporation was dissolved, but on appeal the Louisiana appellate court remanded the case
for substitution of all the proper legal successors to the corporation as plaintiffs. The parties in the
case did not argue, and we state no position as to how this case should proceed. We decide only that
Grubbs is entitled to continue his suit against Gulf's proper successor irrespective of the validity of
his direct action against American Steamship.
IV.
For reasons state above, we vacate the judgment of the district court and remand this case to
the district court for further proceedings consistent with this opinion.
VACATED and REMANDED.