28,950 La.App. 2 Cir. 12/11/96, Thomas v. Albertsons, Inc.

• Decision Date: 11 December 1996
• Citation: 685 So.2d 1134
• Parties: 28,950 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1134

685 So.2d 1134

28,950 La.App. 2 Cir. 12/11/96

Eugenia THOMAS Plaintiff-Appellee, v. ALBERTSONS, INC., et al., Defendants-Appellants.

No. 28950-CA.

Court of Appeal of Louisiana Second Circuit.

Dec. 11, 1996.

Rehearing Denied Jan. 16, 1997.

Writ Denied March 27, 1997.

Mayer, Smith and Roberts by Kim Purdy Thomas, for Defendant-Appellant Essex Ins., Co.

Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, for Defendant-Appellant Albertsons, Inc.

Ronald J. Miciotto, Shreveport for Plaintiff-Appellee.

Before STEWART, GASKINS and PEATROSS, JJ.

STEWART, Judge.

Eugenia Thomas filed a petition for damages in the 26th Judicial District Court, Bossier Parish, Louisiana, alleging personal injury suffered as the result of a slip and fall. Essex Insurance Company, insurer of Craig Evans, d/b/a Evans Floor Care, and Albertsons, Inc., appeal the judgment of the trial court in favor of Ms. Thomas awarding general damages in the amount of $20,000 and special damages as established at trial. Essex asserts three assignments of error while Albertsons asserts two assignments of error. For the following reasons, we affirm the judgment of the trial court against Essex and reverse the judgment against Albertsons.

FACTS

At approximately 1:30 a.m. on April 4, 1993, Ms. Thomas slipped and fell in a puddle of water on the floor, apparently spilled from a mop bucket, of the Albertsons' store located on East Texas Street in Bossier City, Louisiana. She suffered a severe ankle sprain and pain and numbness through the left side of her body which she continues to experience to this date.

She filed a petition for damages against Albertsons, Craig Evans, d/b/a Evans Floor Care, and Essex, Evans' insurer. Evans was never served with the lawsuit. The trial court denied, with written reasons assigned, a motion for summary judgment filed by Essex. Following trial, the court rendered a written decision finding both Essex and Albertsons at fault and awarding damages to Ms. Thomas.

DISCUSSION

Essex' Assignment of Error # 1: The trial court erred in denying Essex' motion for summary judgment.

Essex contends that the trial court erred in denying the motion for summary judgment filed by them in which they assert that Endorsement # 1, a warranty of coverage provision, would exclude coverage for this accident because Evans failed to follow the procedures attached to the policy entitled "Evans Floor Care Nightly Procedures," specifically the provisions regarding posting caution signs on the front door, at all entrances, and at both ends of the area being cleaned and never leaving wet floors unattended.

No appeal lies from denial of a motion for summary judgment. La. C.C.P. art. 968. A trial court's overruling a motion for summary judgment is an interlocutory judgment, causing no irreparable injury, which can only be appealed with the final judgment in the case. Mobley v. State Farm Mutual Automobile Insurance Co., 28,357 (La.App.2d Cir. 5/8/96), 674 So.2d 1117; Leonard v. Stephens, 588 So.2d 1300 (La.App. 2d Cir.1991). The general standard to be applied in reviewing the grant or denial of a summary judgment motion is the same as that which the trial court is required to employ initially. On summary judgment, the inferences to be drawn from the underlying facts contained in the summary judgment evidence and materials must be viewed in the light most favorable to the party opposing the motion. Billiot v. B.P. Oil Co., 93-1118 (La.9/29/94), 645 So.2d 604. For the reasons stated herein, we hold that the trial court correctly determined that the issue of coverage pursuant to the policy of insurance issued by Essex to Craig Evans d/b/a Evans Floor Care was an issue of material fact precluding summary judgment.

Certain basic principals regarding interpretation of insurance polices were enunciated by the Louisiana Supreme Court in Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co., 93-C-0911 (La.1/14/94), 630 So.2d 759. An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166; Smith v. Matthews, 611 So.2d 1377 (La.1993). Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Ledbetter v. Concord General Corp., supra; Garcia v. St. Bernard Parish School Board, 576 So.2d 975 (La.1991). The insurer bears the burden of proving that a loss comes within a policy exclusion. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd's of London, 616 So.2d 1250 (La.1993); Capital Bank & Trust v. Equitable Life, 542 So.2d 494 (La.1989); Lado v. First National Life Insurance Co., 182 La. 726, 162 So. 579 (1935). The judicial responsibility in the interpretation of an insurance policy is the determination of the common intent of the parties. Garcia v. St. Bernard Parish School Board, supra; W. McKenzie & H. Johnson, 15 Louisiana Civil Law Treatise, Insurance Law and Practice Sec. 4 (1986).

The insurance policy admitted into evidence establishes that Essex issued a comprehensive general liability insurance policy to Craig Evans d/b/a Evans Floor Care for the period from March 11, 1993 to March 11, 1994, with certain restrictive endorsements. The policy provision pursuant to which Essex contends that coverage is excluded is attached as Endorsement # 1. That endorsement states "It is a warranty of this coverage that the attached procedures shall be adhered to at all times by employees or no coverage will be in force." Essex asserts that Evans' employees failed to comply with the specified procedures and that, therefore, coverage for this incident is excluded. Those procedures are enumerated as follows:

EVANS FLOOR CARE

NIGHTLY PROCEDURES

1. ADVISE STORE OF YOUR ARRIVAL.

2. CHECK SCRUBBER, START BUFFER.

REPORT ANY MACHINE FAILURE IMMEDIATELY.

3. POST CAUTION SIGN ON FRONT DOOR.

4. POSITION WET FLOOR SIGN AT ALL ENTRANCES. IF STRIPPING, TAPE OFF AREA.

5. POSITION WET FLOOR SIGNS AT BOTH ENDS OF AREA YOU INTEND TO BEGIN WITH.

ONLY AFTER YOU HAVE COMPLETED ALL ABOVE TASKS MAY YOU BRING THE SCRUBBER OR MOP BUCKETS ONTO THE SALES FLOOR.

6. MOVE WET FLOOR SIGNS ACROSS STORE AS YOU MOVE TO NEW AREAS.

7. UPON COMPLETION OF WORK, STORE ALL WARNING SIGNS, DRAIN AND PLUG IN SCRUBBER. CLEAN BUFFER AND FILTER. CHECK OUT WITH MANAGER ON DUTY. NEVER LEAVE WET FLOORS UNATTENDED. FAILURE TO FOLLOW THESE PROCEDURES WILL RESULT IN IMMEDIATE TERMINATION.

Upon consideration of the record, we find that Essex failed to carry its burden of proving that the loss came within the policy exclusions. Although Ms. Thomas and Danny Turner, Albertsons' courtesy clerk on duty the night of the incident, whose deposition was admitted into evidence, testified that they did not notice any warning signs or see an Evans' employee attending the mop bucket, Essex did not establish that mopping of the floor was in progress or that Evans' employees failed to comply with any other procedure.

Further, Evans paid a premium of approximately $26,000.00. Clearly, a review of the insurance policy indicates that the policy was purchased to provide coverage for incidents such as the one at issue in this case. If coverage is to be excluded for failure to comply with the procedures as written, then under any imaginable scenario, coverage would be excluded. Such an interpretation of the insurance policy would violate public policy. Therefore, this assignment of error is without merit.

Essex' Assignment of error # 2: The trial court erred in finding that Ms. Thomas and Albertsons established that Craig Evans, d/b/a Evans Floor Care, had contracted with Albertsons to maintain the floors and was actually doing so at that location, and the trial court erred in not finding that Albertsons' failure to call witnesses within their control who could have testified regarding such a contract created a presumption that their testimony would have been unfavorable.

Essex further contends that neither Ms. Thomas nor Albertsons established that Albertsons had contracted with Evans at the East Texas location and that Evans was providing service at the time of the accident. In support of their position, Essex notes that Evans was never served with the petition, no contract that was effective at the time of the accident was introduced into evidence, and the manager of that particular Albertsons on the date of the incident was not called as a witness.

An appellate court may not set aside a trial court's finding of fact absent manifest error or unless the fact finder is clearly wrong. Lewis v. State through DOTD, 94-2730 (La.4/21/95), 654 So.2d 311; Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Stobart v. State, through DOTD, 617 So.2d 880 (La.1993).

Essex argues that the "manifest error" standard does not apply in that the trial court failed to articulate evidentiary facts upon which the court's conclusion was based. Essex asserts that this court should review the record and make its own independent finding. Bloxom v. Bloxom, 512 So.2d 839 (La.1987); McCartney v. Columbia Heights Nursing Home, 25,710 (La.App. 2 Cir. 3/30/94), 634 So.2d 927; Guy v. State, through DOTD, 576 So.2d 122 (La.App. 2 Cir.1...