93 1322 La.App. 1 Cir. 5/20/94, Kidd v. Logan M. Killen, Inc.

• Decision Date: 20 May 1994
• Citation: 640 So.2d 616
• Parties: 93 1322 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 616

640 So.2d 616

93 1322 La.App. 1 Cir. 5/20/94

Dr. James M. KIDD, III and Carolyn K. Kidd v. LOGAN M. KILLEN, INC.

No. 93 CA 1322.

Court of Appeal of Louisiana First Circuit.

May 20, 1994.

Rehearing Denied Aug. 17, 1994.

Charles A. Schutte, Jr., Mathews, Atkinson, Guglielmo, Marks & Day, Baton Rouge, for plaintiffs-appellants Dr. James M. Kidd, III and Carolyn K. Kidd.

Murphy J. Foster, III, Breazeale, Sachse, & Wilson, Baton Rouge, for defendant-appellee Logan M. Killen, Inc.

Arthur H. Andrews, Funderburk & Andrews, Baton Rouge, for defendant-appellee First National Ins. Co. of America (Safeco).

Before CARTER, GONZALES and WHIPPLE, JJ.

[93 1322 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a trial court judgment granting a motion for summary judgment.

FACTS

On or about December 18, 1989, plaintiffs, Dr. and Mrs. James M. Kidd, III, purchased a home located on Lot 45, Bocage Estates, in East Baton Rouge Parish from defendant Logan M. Killen, Inc. (Killen). Thereafter, the Kidds discovered numerous latent construction defects in the home. On January 17, 1991, the Kidds filed the instant suit for damages against Killen. The Kidds subsequently amended their petition to name as additional defendants Logan M. Killen, personally, ¹ and First National Insurance Company of America (Safeco). ² The Kidds' amended petition also further delineated the various defects in the home.

Killen later answered the Kidds' petition and filed a reconventional demand against the Kidds, alleging prescription, accord and satisfaction, set-off, failure to provide opportunity to repair, laches, and defamation. ³ Killen then filed a motion for summary judgment. In this motion, Killen contended that the Kidds' exclusive remedy was under the Louisiana New Home Warranty Act, LSA-R.S. 9:3141 et seq., and that the Kidds had no cause of action for bodily injury, property damage, consequential damages, or damages for intentional infliction of emotional distress. The motion for summary judgment was subsequently granted with regard to the issue of damages for mental anguish and was denied in all other respects.

[93 1322 La.App. 1 Cir. 3] On October 12, 1992, Safeco filed a motion for summary judgment. ⁴ The Kidds filed the affidavit of Carolyn K. Kidd and the act of cash sale from Killen to the Kidds, together with their memorandum, in opposition to Safeco's motion for summary judgment.

Thereafter, Killen filed a third party demand against Safeco. In the third party demand, Killen alleged that Safeco issued two commercial general liability insurance policies covering the periods from September 1, 1989 through September 1, 1990, and from September 1, 1990 through September 1, 1991. Killen further alleged that, in the principal demand, the Kidds alleged they sustained personal injury and property damage, both of which are covered under the provisions of the Safeco policy. Killen alleged that Safeco had failed to provide a defense as required by the policies and prayed that Safeco be held liable for any damages awarded to the Kidds in the principal demand.

On December 18, 1992, the hearing on the motion for summary judgment was held. At the hearing on the motion for summary judgment, Safeco introduced a copy of its insurance policy and the affidavit of Ted Brothers, the commercial underwriting manager for Safeco. At the hearing, Killen filed an affidavit by Logan M. Killen in opposition to the motion for summary judgment. After considering the evidence and argument of counsel, the trial court rendered judgment on December 22, 1992, granting Safeco's motion for summary judgment and dismissing the Kidds' claims against Safeco at their costs. Thereafter, the Kidds filed a motion for a new trial, which was denied on March 10, 1993.

From this adverse judgment, the Kidds appeal, assigning the following errors:

1. The Trial Court erred in holding, as a matter of law, that damage caused by negligent and faulty construction practices was not the result of an "occurrence," as defined in Safeco's insurance policies.

[93 1322 La.App. 1 Cir. 4] 2. The Trial Court erred in treating the issue of whether damage caused by improper and negligent construction practices was due to an occurrence, as defined in Safeco's insurance policies, as an issue of law rather than an issue of fact.

3. The Trial Court erred in failing to hold that coverage was provided by Safeco's Products-Completed Operations coverage irrespective of whether the damage was caused by an occurrence, as defined in its insurance policies.

4. If the Trial Court held that either Safeco's "work product" exclusion or its "impaired property" exclusion defeated coverage, it erred in so holding.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Thompson v. South Central Bell Telephone Company, 411 So.2d 26, 27 (La.1982); Legros v. Norcen Exploration, Inc., 583 So.2d 859, 860 (La.App. 1st Cir.), writs denied, 588 So.2d 101, 109 (La.1991).

A fact is material if it is essential to the plaintiff's cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989).

The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law is summary judgment warranted. Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381, 384 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136-37 (La.1991). To satisfy this burden, the mover must meet a [93 1322 La.App. 1 Cir. 5] strict standard by showing that it is quite clear as to what the truth is and excludes any real doubt as to the existence of material fact. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d at 1120. The court must closely scrutinize the papers supporting the position of the mover, while the papers of the party opposing the motion are to be treated indulgently. Ortego v. Ortego, 425 So.2d 1292, 1297 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 147 (La.1983).

Summary judgments are not favored and should be used cautiously and sparingly, and any reasonable doubt should be resolved against the mover. Penalber v. Blount, 550 So.2d at 583; Hollis v. City of Baton Rouge/Parish of East Baton Rouge, 593 So.2d 388, 389 (La.App. 1st Cir.1991). In determining whether material facts have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). This is true even if grave doubt exists as to a party's ability to establish disputed facts at trial. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068, 1070-71 (La.App. 3rd Cir.1985). Where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Jones v. Briley, 593 So.2d 391, 393 (La.App. 1st Cir.1991).

Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Sun Belt Constructors, Division of MCC [93 1322 La.App. 1 Cir. 6] Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5th Cir.1988).

It is well settled in Louisiana that an insurance policy is a contract, and rules governing interpretation of written agreements apply to insurance contracts. Thibodeaux v. Doe, 602 So.2d 1076, 1078 (La.App. 1st Cir.), writ denied, 605 So.2d 1377 (La.1992). An insurance contract is the law between the parties, and every provision therein must be construed as written. Massachusetts Mutual Life Insurance Company v. Nails, 549 So.2d 826, 832 (La.1989); Barnes v. Allstate Insurance Company, 608 So.2d 1045, 1046-47 (La.App. 1st Cir.1992); Thibodeaux v. Doe, 602 So.2d at 1078. In Jim Carey Distributing Co., Inc. v. Zinna, 589 So.2d 526, 528 (La.App. 1st Cir.1991), this court noted that:

The intention of parties to an insurance contract is to be determined in accordance with the plain, ordinary and popular sense of the language used in the agreement and by giving consideration on a practical, reasonable and fair basis to the instrument in its entirety. An insurance policy should not be given an interpretation which would enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or which would lead to an absurd conclusion. The words of insurance contracts and policies should be given their general and popular interpretation and not that which is strained and unusual. (Citations omitted.)

If the wording of the insurance contract is clear and expresses the parties' intent, the agreement must be enforced as written. The court...