Louisiana is a “direct action” state, meaning a plaintiff may name an insurer in a lawsuit. In most other states, if you bring a personal injury lawsuit, you cannot name the insurance carrier in that lawsuit. Louisiana on the other hand was one of the first to enact a direct action statute. It expresses Louisiana’s long public policy that “an insurance policy against liability is not issued primarily for the protection of the insured but for the protection of the public.” Davies v. Consolidated Underwriters, (La. 1942).
La. R.S. 22:1269 does not create an independent cause of action against the insurer, and it does not extend the protection of the liability policy to risks that were not covered by the policy or were excluded by it. Rather, it grants a plaintiff a procedural right of action against the insurer in a case where the plaintiff has a substantive cause of action against the insured. This gives the injured party the right to sue the insurer directly in two instances:
- Where the insurance policy was issued or delivered in Louisiana; or
- Where the accident or injury occurred in Louisiana.
The statute was enacted to give special rights to tort victims. In its absence, a plaintiff would have no right of action against a defendant’s liability insurer because the obligation between the plaintiff and the defendant is delictual in nature, and the plaintiff has no contractual relationship with the defendant’s insurer. Soileau v. Smith True Value & Rental, (La. 2013). The plaintiff may bring the action against the insured or against the insured and the liability insurer. The action may be brought against only the insurer when:
- The insured is bankrupt or has filed for bankruptcy;
- The insured is insolvent;
- Service can not be made on the insured;
- The cause of action is for damages between children and their parents or between married persons;
- The insurer is an uninsured motorist carrier; or
- The insured is deceased.