26,643 La.App. 2 Cir. 3/1/95, Ledbetter v. Concord General Corp.

• Decision Date: 01 March 1995
• Citation: 651 So.2d 911
• Parties: 26,643 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 911

651 So.2d 911

26,643 La.App. 2 Cir. 3/1/95

Lucy Wilinda LEDBETTER, et al., Plaintiff-Appellee/Appellant, v. CONCORD GENERAL CORPORATION, Defendant-Appellant/Appellee.

No. 26,643-CA.

Court of Appeal of Louisiana Second Circuit.

March 1, 1995.

Writ Granted May 12, 1995.

Bethard & Davis, L.L.P. by Robert E. Bethard, Couchatta, for plaintiffs-appellants Lucy Wilinda Ledbetter, Jessica Veara and Roger Daniel Grimes, Jr.

Hoffman, Sutterfield, Esenat & Bankston by Michael W. McKay, Baton Rouge, for defendant-appellant Classic Syndicate, Inc., Insurer of the Worth Motel.

Davidson, Nix, Arceneaux, Jones & Askew by James H. Askew, Shreveport, for defendant-appellee Balvantrai Govindji Patel a/k/a Patel and Manjulaven Dahyabhai Patel d/b/a Worth Motel.

Before SEXTON, LINDSAY and WILLIAMS, JJ.

LINDSAY, Judge.

This is a civil suit arising from the rape of a motel patron. The trial court found that the motel's insurance policy provided coverage for the damages suffered by the victim. The trial court also apportioned fault among the parties and made a general damage award of $240,000 to the victim of the rape, reduced by the victim's percentage of fault and by settlement with one of the parties. The trial court denied damage claims for lost business revenue to the victim, a mental anguish claim by the victim's granddaughter and a loss of consortium claim by the victim's son. The defendant insurance company and all the plaintiffs have appealed. For the following reasons, we reverse in part and affirm in part the trial court judgment.

FACTS

The plaintiff, Lucy Wilinda Ledbetter, was employed as a traveling salesperson of nursery plants. Her employment required her to frequently spend the night "on the road." When she was in the Coushatta, Louisiana area, Mrs. Ledbetter stayed at the Worth Motel, owned and operated by B.G. Patel and his wife.

On August 12, 1988, Mrs. Ledbetter checked into the Worth Motel with her six year old granddaughter, Jessica Veara. Mrs. Ledbetter requested and was assigned Room 4, the room she usually occupied. The room did not have a dead bolt lock, but did have a chain on the door. Before retiring for the night, Mrs. Ledbetter checked the chain, but was not certain she checked the door handle to be sure it was locked. While her granddaughter slept in a separate bed, Mark McGraw, another guest at the motel who was employed by Zaval Tex, a pipeline construction company, gained unauthorized entry into the room. While threatening Mrs. Ledbetter with a tire tool, McGraw raped her. He then forced her into her car and the two drove a short distance from the motel, at which point, Mrs. Ledbetter jumped out of the car and escaped.

Local law enforcement officials were summoned and Mrs. Ledbetter was taken back to the motel where her granddaughter was still sleeping. McGraw was apprehended, prosecuted for the offense and was convicted. He was sentenced to serve life in prison. See State v. McGraw, 564 So.2d 727 (La.App. 2d Cir.1990), writ denied 567 So.2d 1126 (La.1990).

On December 30, 1988, suit was brought against Balvantrai Govindji Patel, his wife, Manjulaven Dahyabhai Patel, d/b/a Worth Motel, Concord General Corporation and Illinois Insurance Exchange, then believed to be the motel's insurers, and the perpetrator of the offense, Mark McGraw. Concord General and Illinois Insurance were later dismissed. Classic Syndicate, Inc., insurer of the Worth Motel, and Zaval Tex, the employer of the perpetrator, were added as defendants.

Plaintiffs in the suit were Mrs. Ledbetter, the victim, as well as her daughter, Jennifer Veara, the natural tutrix of the granddaughter, Jessica Veara, and her son, Roger Daniel Grimes, Jr. Ms. Veara alleged that her daughter, Jessica, was significantly traumatized by seeing her grandmother after the incident. Mr. Grimes alleged that he resided with his mother and had been damaged as a result of the rape because his mother was unable to perform such maternal functions as cooking and cleaning.

The Patels and Classic Syndicate, Inc. filed a third party demand/cross claim against McGraw and his employer, Zaval Tex, arguing that the employer was on notice that McGraw had been in "some trouble," but failed to investigate and learn that he had two previous rape convictions, one in North Carolina and one in Texas.

Zaval Tex filed a third party demand against the Patels, Classic Syndicate, and McGraw. Eventually, the plaintiffs settled their claim against Zaval Tex and that company was dismissed from the proceedings by agreement of all parties.

On September 5, 1989, Classic Syndicate, Inc. filed a motion for summary judgment, asserting that its policy did not provide coverage in this case because of an assault and battery exclusion in the policy. A hearing was held on the motion and on October 23, 1989, the trial court denied the motion, finding that there were genuine issues of material fact as well as issues regarding coverage. The parties appealed that decision to this court.

In Ledbetter v. Concord General Corporation, 564 So.2d 732 (La.App. 2d Cir.1990), this court reversed the trial court, finding that partial summary judgment should be granted. This court found that the policy provided coverage for damages sustained as a result of a wrongful entry. The policy did not provide coverage for damages resulting from the actual assault and battery, that is the rape and kidnapping, which took place after the wrongful entry occurred. However, this court found that, from the record before the court, we could not determine whether any damages actually resulted from the wrongful entry, separate and apart from the assault and battery and found that this was a factual matter to be resolved at trial. Therefore, Classic Syndicate was not entitled to be dismissed entirely from the lawsuit. The case was remanded to the trial court for further proceedings.

On May 1, 1991, Classic Syndicate filed another motion for summary judgment arguing that the insurance policy excludes coverage for the claims made by the plaintiffs. This motion was denied by the trial court on May 20, 1991. Classic Syndicate applied to this court for supervisory writs.

On September 20, 1991, this court granted the writ, reversing the trial court ruling. This court stated that "the evidence submitted by the applicant, Classic Syndicate, Inc., shows there is no genuine issue of fact that the plaintiffs suffered no damage from the wrongful entry to the motel room, other than the assault, battery, rape and kidnapping damages which this court previously ruled were totally excluded from coverage by the Assault and Battery Exclusion endorsement attached to the policy."

On January 17, 1992, the Louisiana Supreme Court vacated the decision by this court, 591 So.2d 704. The Supreme Court held that there were genuine issues of material fact, accordingly, and the case was remanded to the trial court for further proceedings.

Trial on the merits was held in March, 1993. On July 21, 1993, judgment was signed by the trial court. Mr. and Mrs. Patel, d/b/a Worth Motel, were found to be 40% at fault. The court found that the motel was covered for that fault by the insurance policy with Classic Syndicate, Inc. Zaval Tex was found to be 25% at fault and Mrs. Ledbetter was found to be 35% at fault. Mark McGraw was found to be solidarily liable with the defendants for damages caused to Mrs. Ledbetter. The court found that Roger Daniel Grimes, Jr. failed to prove his claim for damages and, after conclusion of the plaintiffs' case, the defendants were granted a judgment of involuntary dismissal as to the claim of Jessica Veara.

General damages to Mrs. Ledbetter were fixed at $240,000. The court awarded her $96,000, calculated by reducing plaintiff's damages by her percentage of fault and by the percentage of fault of Zaval Tex, which claim she had previously settled.

In reasons for judgment, the trial court found that Zaval Tex was partially at fault in failing to investigate McGraw's criminal record before hiring him. The court also assessed Mrs. Ledbetter with 35% fault, finding that she was not certain that the door was locked when she went to sleep. The court noted that the evidence showed that the door could be opened from the outside while locked, but this would cause some noise. Mrs. Ledbetter did not report hearing any such noise on the night of the attack.

The court also found that the chain locking device on the door was installed backwards and was not "capable of acting in its proper capacity as a locking device."

The court further found that the insurance policy provided coverage for Mrs. Ledbetter's damage. The court stated that the violation of Mrs. Ledbetter was the result of the wrongful entry of the motel room. The court found that "entering into a philosophical debate over whether rape or kidnapping is considered to be assault and battery does not aid in this determination." The court also found that the damage claim to Mrs. Ledbetter's plant business was too speculative to allow recovery.

Classic Syndicate, Inc. and the plaintiffs appealed the trial court judgment.

INSURANCE COVERAGE

Classic Syndicate, Inc. argues that the trial court erred in finding that the insurance policy issued by the company to the Worth Motel provided coverage for the damage claims of Mrs. Ledbetter against the motel. Classic contends that the exclusion in the policy for damages arising from assault and battery barred her claim. We find that this argument has merit and accordingly reverse the trial court judgment in this regard.

The policy at issue provides coverage for personal injury resulting from a wrongful or unauthorized entry. However, claims resulting from assault and battery are excluded from coverage.

The assault and battery exclusion in Classic Syndicate's policy provides:

Notwithstanding anything contained herein to the contrary, it is understood and agreed that this policy excludes claims arising out of...