In an East Baton Rouge lawsuit seeking to recover unpaid insurance premiums, the defendant, Insurer’s Salvage Auction, Inc., learned the vital importance of timely serving a memorandum in opposition to the plaintiff’s motion for summary judgment. The First Circuit Court of Appeal, in Retailers Casualty Insurance Company v. Insurer’s Salvage Auction, Inc., stated that the 19th District Court properly excluded the defendant’s untimely served memorandum in opposition and supporting affidavit. As such, the First Circuit Court of Appeal affirmed summary judgment in favor of Retailers Casualty Insurance Company.
According to the applicable Louisiana rules, La. C.C.P. art. 966B(1) and La. Dist. Ct. R. 9.9(c), all parties must receive a defendant’s memorandum in opposition and supporting affidavits at least eight calendar days before the hearing on a plaintiff’s motion for summary judgment. In the instant case, Retailers Insurance Company filed its motion for summary judgment on December 29, 2013, and the hearing was originally set for March 17,2014. The hearing was later rescheduled for May 19, 2014.
On May 15, 2014, Insurer’s Salvage Auction, Inc. filed its memorandum in opposition with the clerk of the court. The certificate of service indicated that the defendant served a copy of its memorandum via mailing a copy to the plaintiff on May 12, 2014. The earliest possible date that the plaintiff could have received a copy of the memorandum was May 13, 2014, a mere six days before the May 19, 2014 hearing. Clearly Insurer’s Salvage Auction, Inc. did not serve Retailers Casualty Insurance Company with its memorandum and supporting affidavits within the time prescribed by the procedurally rules.
Insurer’s Salvage Auction, Inc.’s failure to timely serve the plaintiff with its memorandum was more than just a harmless error. It lost them the entire case. By rule, the trial court could not consider the defendant’s memorandum in opposition at the plaintiff’s motion for summary judgment hearing. As both the trial and appellate court agreed that the plaintiff’s motion for summary judgment was well founded, it was necessary for the defendant to respond to the motion to avoid summary judgment. Pursuant to La. C.C.P. art. 967B, the defendant must respond to the motion for summary judgment by affidavit, or otherwise, exhibiting sufficient facts to prove there was a “genuine issue for trial.” Of course, Insurer’s Salvage Auction, Inc. did not meet this standard because its memorandum in opposition was properly excluded.
Future defendants can certainly learn from Insurer’s Salvage Auction, Inc.’s mistakes. Notably, defendants must realize that simply filing a memorandum in opposition with the clerk of court eight days prior to a plaintiff’s motion for summary judgment hearing is insufficient under Louisiana rules. All parties, especially the plaintiff, must receive the defendant’s memorandum in opposition and supporting affidavits at least eight days prior to the motion for summary judgment hearing. Furthermore, if a defendant intends to serve its memorandum via mail, the defendant should consider how long it will take for the plaintiff to actually receive the memorandum. Defendants beware, timely serve your memorandum in opposition, or you can lose your case.
Additional Sources: RETAILERS CASUALTY INSURANCE COMPANY VERSUS INSURER’S SALVAGE AUCTION, INC.
Written by Berniard Law Firm Blog Writer: David Salisbury
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