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Marcello v. Snell's Limbs & Braces of New Orleans, Inc.
Citations: 688 So. 2d 677; 96 La.App. 5 Cir. 700; 1997 La. App. LEXIS 534; 1997 WL 29359Docket: No. 96-CA-700
Court: Louisiana Court of Appeal; January 27, 1997; Louisiana; State Appellate Court
Plaintiffs-appellants Anthony and Jeannine Monte Marcello appeal a July 19, 1996 judgment from the 24th Judicial District Court, which granted a partial summary judgment in favor of the defendant, St. Paul Fire and Marine Insurance Co. The judgment dismissed the plaintiffs’ bad faith claims for penalties and attorney fees under LSA-R.S. 22:1220 B.(5) and denied their motion to compel discovery related to these claims. The case arose after Anthony Marcello suffered a leg amputation due to diabetes and subsequently ordered a prosthesis from a surgical supply house. The initial prosthesis was unsuitable, leading to the creation of a custom prosthesis that collapsed during fitting, causing injury to the plaintiff. Legal proceedings were initiated on April 25, 1995, naming the surgical supply house, its owners, and St. Paul as defendants. In January 1996, the plaintiffs amended their petition to allege that St. Paul failed to pay their claim within 60 days, thus incurring penalties and attorney fees for arbitrary and capricious inaction. St. Paul responded to the amended petition and filed a motion for partial summary judgment, which was heard on June 17, 1996. The trial court ruled in favor of St. Paul, leading to the current appeal. The court first addressed jurisdiction, referencing a previous case (Caire v. Fremen) where a similar appeal was deemed premature. The court concluded that the partial summary judgment in question did not dismiss any parties and was not authorized under C.C.P. Article 1915, characterizing it as an interlocutory judgment not subject to appeal without showing irreparable injury. As no such injury was claimed or evident, the court dismissed the appeal as premature, allowing the appellants to raise their objections again in the final appeal on the matter. The motion for rehearing was denied.