96 1476 La.App. 1 Cir. 7/30/97, Bilbo for Basnaw v. Shelter Ins. Co.

• Decision Date: 30 July 1997
• Citation: 698 So.2d 691
• Parties: 96 1476 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 691

698 So.2d 691

96 1476 La.App. 1 Cir. 7/30/97

Lori BILBO, as Tutrix for Minor, Jeremy BASNAW v. SHELTER INSURANCE COMPANY, Douglas Knippers, Linda Knippers and David Drago.

No. 96 CA 1476.

Court of Appeal of Louisiana First Circuit.

July 30, 1997.

Timothy J. Martinez, Steven P. Monaghan, Baton Rouge, for Plaintiffs-Appellants Lori Bilbo, et al.

Amos H. Davis, Smith & Davis, Baton Rouge, for Defendant-Appellee Shelter Mutual Ins. Co.

Kenner O. Miller, Jr., Sweeney & Miller, Baton Rouge, for Defendants-Appellees Douglas and Linda Knippers.

Linda Knippers, Baton Rouge, Defendant-Appellee in proper person.

Before CARTER, LeBLANC and PARRO, JJ.

[96 1476 La.App. 1 Cir. 2] PARRO, Judge.

The plaintiffs in this tort action appeal the district court's granting of a defendant's motion for summary judgment. The court dismissed plaintiffs' claims against the defendants' homeowner's insurance company, concluding that there were no material facts in dispute and that, as a matter of law, because the policy excluded coverage for bodily injury to another that was intended or expected by an insured, the policy did not provide coverage for the damages suffered by the plaintiffs in this case.

FACTUAL AND PROCEDURAL BACKGROUND

About 5:30 p.m. on November 2, 1993, fourteen-year-old Jeremy Basnaw ("Jeremy") was standing in the front yard of his home talking to a friend, Tiffany Drago ("Tiffany"). As they talked, Vaughn Knippers ("Vaughn"), also fourteen years old, walked up to Jeremy and punched him in the nose. As a result of this single blow to his face, Jeremy suffered a broken nose.

Lori Bilbo ("Ms. Bilbo") is Jeremy's mother; she and Jeremy's father are divorced and she has sole custody of Jeremy. She filed suit to recover damages resulting from this incident, including medical expenses, Jeremy's physical and mental pain and suffering, permanent disfigurement, and loss of enjoyment of life. In an amended petition, she also claimed damages for her loss of consortium. Named defendants were Vaughn's parents, Douglas and Linda Knippers, and their homeowner's insurer, Shelter Mutual Insurance Company ("Shelter"). ¹ The petition claimed the injuries and damages were caused by Vaughn's striking Jeremy and were also directly attributable to Vaughn's parents' negligent supervision of him. All defendants filed a general denial, and Shelter later filed a motion for summary judgment, alleging its policy did not provide coverage for the damages claimed by the plaintiffs.

For purposes of its motion, Shelter admitted it was the homeowner's insurer of Vaughn's parents on the date of the attack, and that Vaughn was an insured under the policy. However, Shelter asserted that, because the bodily injury and damages suffered by Jeremy were intended by Vaughn, its policy did not cover those damages. The [96 1476 La.App. 1 Cir. 3] comprehensive personal liability protection afforded by the Shelter policy contained the following exclusion:

Under Personal Liability and Medical Payments to Others, we do not cover:

5. bodily injury or property damage expected or intended by an insured.

The evidence before the district court on the motion for summary judgment included the insurance policy and excerpts from depositions of Vaughn, Jeremy, and Tiffany. After reviewing this evidence and the oral and briefed arguments of counsel, the judge stated the following in his oral reasons for judgment:

I'm going to save everybody a lot of time by granting the motion for summary judgment, because if you tried this case on the merits--I'm trying to tell you something about the practice of law. If you try this case on the merits, you're going to get all your steam up in your locomotive engine, try this case, do a brilliant job. The jury is going to come in with a goose egg or with no coverage. I've seen it happen too many times.

There's such a tenuous thread on the issue of the negligence of the parents, that it's not worth consideration at this point. The courts have been very broad in their permitting children, minors, to do anything they want to do without the parents being held accountable for it.

Based on this and similar observations about the likely outcome of a trial on the merits, the court granted the motion and dismissed all claims against Shelter.

APPLICABLE LAW

Motion for Summary Judgment

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 Sup'rs of Louisiana State Univ., 591 So.2d 342, 345 (La.1991); Jackson v. Slidell Nissan, 96-1017 (La.App. 1st Cir. 5/9/97), 693 So.2d 1257. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); McKey v. General Motors Corp., 96-0755 (La.App. 1st Cir. 2/14/97), 691 So.2d 164, 167. Summary judgment is warranted only when [96 1476 La.App. 1 Cir. 4] reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law. Gautreau v. Washington, 95-1731 (La.App. 1st Cir. 4/4/96), 672 So.2d 262, writ denied, 96-1164 (La. 6/28/96), 675 So.2d 1123. The court should not seek to determine whether it is likely that the party moving for summary judgment will prevail on the merits, but rather, whether there is an issue of material fact. Jarrell v. Carter, 632 So.2d 321, 324 (La.App. 1st Cir.1993), writ denied, 94-0700 (La. 4/29/94), 637 So.2d 467.

When the altercation forming the basis of this litigation occurred, Louisiana law discouraged summary judgments. See Robertson v. Our Lady of the Lake Regional Medical Ctr., 574 So.2d 381, 385 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La.1991). However, in 1996 the Louisiana legislature amended Code of Civil Procedure article 966 by adding paragraph (A)(2), which states, in pertinent part:

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.

Because the amended version is a procedural change, it is applied retroactively. Nail v. Germania Plantation, Inc., 96-1602 (La.App. 1st Cir. 5/9/97), 693 So.2d 1294, 1297.

The effect of the amendment is to level the playing field between the parties in two ways: first, the supporting evidence submitted by the parties should be scrutinized equally, and second, the overriding presumption in favor of trial on the merits is removed. Jenson v. First Guaranty Bank, 96-0381 (La.App. 1st Cir. 5/9/97), 699 So.2d 403, 404. However, this change did not alter the burden of proof; the mover still has the burden of establishing that no material factual issue exists. ² LSA-C.C.P. art. 966(C)(2); McKey, 691 So.2d at 167; Schroeder, 591 So.2d at 345. 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 recover. Material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate [96 1476 La.App. 1 Cir. 5] success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). 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. Penton v. Clarkson, 93-0657 (La.App. 1st Cir. 3/11/94), 633 So.2d 918, 922.

A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or the amount of damages. ³ LSA-C.C.P. art. 966(E). Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183. A motion for summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge. Penalber, 550 So.2d at 583.

Interpretation of Insurance Contracts

An insurance policy is an agreement between parties and should be interpreted using ordinary contract principles. Ledbetter v. Concord General Corp., 95-0809 (La. 1/8/96), 665 So.2d 1166, 1169, rehearing denied, amended 95-0809 (La. 4/18/96), 671 So.2d 915. Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art. 2045; Amend v. McCabe, 95-0316 (La. 12/1/95), 664 So.2d 1183, 1187. The intent of the parties is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the agreement. If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. LSA-C.C. art. 2046; Dunn v. Potomac Ins. Co. of Illinois, 94-2202 (La.App. 1st Cir. 6/23/95), 657 So.2d 660, 663. However, if there is any doubt or ambiguity as to the meaning of a provision in an insurance policy, it must be construed in favor of the [96 1476 La.App. 1 Cir. 6] insured and against the insurer. When the ambiguity relates to an exclusionary clause, the law requires that the contract be interpreted liberally in favor of coverage. See Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983); Ledbetter, 665 So.2d at 1169.

Intended Injury or Damage Exclusion

The exclusionary language used in the Shelter policy at issue in this case has often been determined to be ambiguous, and accordingly, has been construed in favor of coverage. Great American Ins. Co. v. Gaspard, 608 So.2d 981, 984 (La.1...