Beck v. Burgueno

• Decision Date: 17 September 2008
• Docket Number: No. 43,557-CA.,43,557-CA.
• Citation: 996 So.2d 404
• Parties: Lori BECK and Charles Beck, Plaintiffs-Appellees v. Brett C. BURGUENO and LK Entertainment, LLC d/b/a Backdoor Lounge, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

996 So.2d 404

Lori BECK and Charles Beck, Plaintiffs-Appellees v. Brett C. BURGUENO and LK Entertainment, LLC d/b/a Backdoor Lounge, Defendants-Appellants.

No. 43,557-CA.

Court of Appeal of Louisiana, Second Circuit.

September 17, 2008.

Hudson, Potts, & Bernstein, LLP, by Gordon L. James, Donald H. Zeigler, III, Monroe, for Appellant LK Entertainment, LLC d/b/a Backdoor Lounge.

Jeffrey D. Guerriero, Kevin D. Alexander, Monroe, for Appellees Lori and Charles Beck.

Hayes, Harkey, Smith & Cascio, LLP, by Thomas M. Hayes, IV, Monroe, for Intervenor-Appellee Colony Ins. Co.

Before BROWN, WILLIAMS and MOORE, JJ.

MOORE, J.

The trial court granted Colony Insurance Company's motion for summary judgment based on a policy exclusion that excludes coverage arising out of "assault and battery." The insured, LK Entertainment, L.L.C., d/b/a Backdoor Lounge ("LK Entertainment"), appeals the judgment, alleging that there remained issues of material fact that preclude summary judgment. For the following reasons, we affirm.

FACTS

There are few factual details in the record regarding the event that spawned this litigation. The plaintiffs' petition alleges that on March 11, 2006, Lori Beck was patronizing the Backdoor Lounge located at 6234 Cypress Street, West Monroe, Louisiana. She alleges that while she was there, one Brett C. Burgueno physically assaulted her and caused her to suffer injuries. Ms. Beck contends that Mr. Burgueno touched her in an inappropriate and unwelcome manner and struck her. Additionally, Ms. Beck's husband, Charles Beck, alleges he has suffered a loss of consortium as a result of his wife's injuries.

The Becks sued Brett Burgueno and LK Entertainment alleging, inter alia, that Burgueno was an employee of the lounge acting within the course and scope of his employment, and that LK Entertainment was negligent for the following conduct:

(1) Failure to adequately and properly supervise its employees;

(2) Failure to provide for the safety and well-being of others;

(3) Failure to perform adequate background checks on its employees;

(4) Negligent hiring;

(5) Failure to summon the police in a timely manner;

(6) Failure to provide adequate security;

(7) Allowing its employees to consume alcohol while on the job; and

(8) Failure to warn the plaintiff.

Against defendant Burgueno, the plaintiffs allege the following negligent and intentional acts:

(1) Drinking on the job;

(2) Failure to provide for the safety and well-being of others;

(3) Touching Lori Beck in an inappropriate and unwelcome manner;

(4) Striking Lori Beck;

(5) Failing to warn Lori Beck.

LK Entertainment answered the petition specifically denying the allegation that Burgueno was its employee and denied for lack of sufficient information that the incident occurred as well as any liability to the plaintiffs.

Although the petition did not name a defendant insurer for the lounge, Colony Insurance Company ("Colony") subsequently intervened, seeking a declaratory judgment on the issue of coverage. Colony alleged that it issued a General Commercial Liability ("GCL") policy to LK Entertainment and was in force at the time of the incident, but that the incident was not covered due to the policy's "assault and battery" exclusion.

LK Entertainment answered Colony's petition to intervene and admitted Colony's allegation that Colony issued a GCL policy to LK Entertainment, but it contested the applicability of the "assault and battery" exclusion.

Colony subsequently filed a motion for summary judgment supported with an affidavit from claims adjuster Linda Hinkle, who identified the attached GCL policy in force on the date of the alleged incident. In general, the policy's "assault and battery" exclusion states that the policy does not cover bodily injury or property damages arising out of an assault and battery committed by any person and for other listed types of negligent acts or omissions related to an assault and battery.

LK Entertainment opposed the motion, contending that Colony did not show by supporting affidavits that there were no issues of material fact. It contended that, in addition to the dispute over whether the coverage exclusion applied, there remained two disputed material issues of fact; namely, whether the incident alleged by the plaintiffs occurred and whether Burgueno was an employee of LK Entertainment. It noted that LK Entertainment had denied that the incident occurred and denied that Burgueno was its employee. Additionally, LK Entertainment argued that there were allegations in the plaintiffs' petition that did not fit within the policy's "assault and battery" exclusion and thus provided coverage. Finally, LK Entertainment alleged that Colony owed it a duty to defend because the policy did not unambiguously exclude coverage.

After the second round of reply briefs, the district court granted the motion and rendered judgment in favor of Colony declaring that the GCL policy did not provide coverage for the damages claimed by the plaintiffs and that Colony did not have a duty to defend the suit.

This appeal followed.

DISCUSSION

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Jones v. Foster, 41,619 (La.App. 2 Cir. 12/13/06), 945 So.2d 262; Foley v. Sportran, 40,624 (La.App. 2 Cir. 5/17/06), 930 So.2d 368. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon's Towing, 2001-2837 (La.5/14/02), 817 So.2d 21; Jones v. Foster, supra. The motion should be 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. La. C.C.P. art. 966 B.

The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to the plaintiffs' claim. The burden then shifts to the plaintiffs to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Jones v. Foster, supra. If the plaintiffs then fail to produce such evidence, then summary judgment is proper. King v. Phelps Dunbar LLP, 98-1805 (La.6/4/99), 743 So.2d 181; Jones v. Foster, supra.

Appellate review of the grant or denial of a summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Row v. Pierremont Plaza LLC, 35,796 (La.App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952.

Insurance Coverage

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. La. C.C.P. art. 966(E);¹ Jie v. Certified Lloyds Plan, 34,545 (La.App. 2 Cir. 4/4/01), 785 So.2d 118; Simmons v. Weiymann, 2005-1128 (La.App. 1 Cir. 8/23/06), 943 So.2d 423; Broussard v. United Services Contracting Co., Inc., 94-447 (La. App. 3 Cir. 12/7/94), 647 So.2d 601; Stewart Interior Contractors, L.L.C. v. Metalpro Industries, L.L.C., 2007-0251 (La.App. 4 Cir. 10/10/07), 969 So.2d 653; Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218 (La. App. 5 Cir. 10/6/05), 912 So.2d 715, writ denied, 2005-2356 (La.3/17/06), 925 So.2d 544.

When determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy's terms. See Doerr v. Mobil Oil Corp., 2000-0947 (La.12/19/00), 774 So.2d 119, modified on other grounds on reh'g, 2000-0947 (La.3/16/01), 782 So.2d 573; Alexander v Cornett, 42,147 (La.App. 2 Cir. 7/11/07), 961 So.2d 622, writ denied, 2007-1681 (La.11/2/07), 966 So.2d 603; Jones v. Foster, supra. 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. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some provision or exclusion applies to preclude coverage. Alexander v. Cornett, supra; Simmons v. Weiymann, supra.

Insurance Policy Interpretation

An insurance policy is a contract between the parties and should be construed using the general rules of contractual interpretation. The extent of coverage provided by a policy is determined by the parties' intent, as reflected by the words of the policy. La. C.C. art. 2045; La. C.C. art. 2046; Winn v. Nation, 39,229 (La.App. 2 Cir. 1/26/05), 893 So.2d 133, writ denied, 2005-0796 (La.5/13/05), 902 So.2d 1022. Words and phrases used in an insurance policy must be given their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art. 2047; Edwards v. Daugherty, 2003-2103, 2003-2104 (La.10/1/04), 883 So.2d 932. Insurance policies should be construed to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148 (La. 1993). However, an insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Edwards, supra; Winn, supra.

Whether an insurance contract is ambiguous is a matter of law. Alexander v. Cornett, supra; Yarbrough v. Federal Land Bank of Jackson, 31,815 ...