Calderon v. Sanabria

• Decision Date: 04 May 2022
• Docket Number: 21-CA-579
• Citation: 342 So.3d 101
• Parties: Katty CALDERON, Natural Mother of the Decedent, Avril Sanabria v. Lezly SANABRIA, Suly Sanabria, Jonathan Rivera, ABC Insurance Company, DEF Insurance Company, and GHI Insurance Company
• Court: Court of Appeal of Louisiana — District of US

342 So.3d 101

Katty CALDERON, Natural Mother of the Decedent, Avril Sanabria

v.Lezly SANABRIA, Suly Sanabria, Jonathan Rivera, ABC Insurance Company, DEF Insurance Company, and GHI Insurance Company

NO. 21-CA-579

Court of Appeal of Louisiana, Fifth Circuit.

May 04, 2022

COUNSEL FOR DEFENDANT/APPELLANT, FAMILY SECURITY INSURANCE COMPANY AND UNITED PROPERTY AND CASUALTY INSURANCE COMPANY, H. Minor Pipes, III, New Orleans, Alexis Polk Joachim, Katherine S. Roth

COUNSEL FOR PLAINTIFF/APPELLEE, KATTY CALDERON, NATURAL MOTHER OF THE DECEDENT, AVRIL SANABRIA, Pedro F. Galeas, New Orleans, Scott LaBarre

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and John J. Molaison, Jr.

WICKER, J.

Appellant-Defendant, Family Security Insurance Company, appeals the trial court's May 18, 2021 judgment denying its Motion for Summary Judgment and granting Appellee-Plaintiff, Katty Calderon, natural mother of decedent Avril Sanabria's Motion for Partial Summary Judgment on the Issue of Insurance Coverage. For the reasons discussed herein, we reverse the May 18, 2021 judgment and remand this matter to the district court.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation arises out of the tragic death of two-year old Avril Sanabria ("Avril"), who remained secured in a car seat's harness in the rear of a vehicle that was parked in the residential driveway of 494 Carolyn Drive in Destrehan, Louisiana for over six hours, when the external temperature was ninety-seven degrees Fahrenheit. The underlying facts of this case are undisputed.

On October 4, 2019, Suly Sanabria ("Suly"), the decedent's paternal grandmother, drove to Walgreens located at the corner of Airline Drive and Clearview Parkway in Metairie, to pick up her daughter, Lezly Sanabria ("Lezly"), and her two-year-old granddaughter and Lezly's niece, Avril Sanabria ("Avril"). To safely transport Avril, a car seat had been installed in the rear of Suly's vehicle, and Avril was seated in it with the harness secured. Suly then drove Lezly and Avril to her residence located at 494 Carolyn Drive in Destrehan. Lezly lived in a small apartment, the mother-in-law suite, located behind the primary residence. When they arrived at the Destrehan home, Jonathon Rivera, Lezly's then boyfriend, was waiting for them in front of the house. Suly parked her vehicle in the driveway and entered her home alone, leaving Lezly, Jonathon and Avril at the car. According to Suly, she was unable to fasten or unfasten Avril in her car seat because of disabling arthritis

in her hands. Lezly and Jonathan unloaded bags from the vehicle and proceed to Lezly's apartment in the rear of Suly's home.

Neither Suly nor Lezly removed Avril from the vehicle. More than six hours later, Suly and Lezly realized that neither of them had Avril. Upon returning to her vehicle, Suly discovered Avril was still in the vehicle. As a result, Avril sustained injuries to her mind and body that led to her death.¹

On January 21, 2020, Katty Calderon, Avril Sanabria's natural mother, filed a wrongful death and survival action against Lezly Sanabria, Suly Sanabria, Jonathan Rivera, and three unknown insurance companies in the 29th Judicial District Court for the Parish of St. Charles.

On March 23, 2020, Ms. Calderon filed a First Supplemental and Amended Petition for Damages to add the proper names of the three insurance companies: (1) United Property and Casualty Insurance Company, who maintained a homeowner's policy issued to Suly Sanabria; (2) Family Security Insurance Company, a stock insurance company who was the underwriter for the homeowners’ policy and an affiliate of United Property and Casualty Insurance Company; and (3) Allstate Insurance Company ("Allstate"), the liability insurer of the vehicle involved in the loss.² On June 25, 2020, United Property and Casualty Insurance Company and Family Security Insurance Company (jointly hereinafter "UPC") filed a Declinatory exception of Lis Pendens along with Answers to Ms. Calderon's Petition for Damages, and her First Supplemental and Amended Petition for Damages. Thereafter, on September 16, 2020, Suly filed an Answer to the petition and asserted a Third Party Demand against UPC. In reply, UPC filed a Declinatory Exception of Lis Pendens and an Answer to Suly's Third Party Demand on October 13, 2020.

On January 8, 2021, UPC filed a Motion for Summary Judgment on the issue of insurance coverage. Relying on a motor vehicle liability exclusion contained in the homeowners’ policy, UPC averred that Avril Sanabria's death arose "out of the occupancy," "use" and/or "unloading," of a motor vehicle, as well as the "failure to supervise and/or negligent supervision," of the child by Suly and Lezly involving a motor vehicle, which precluded coverage for any of Ms. Calderon's damages. Specifically, UPC argued that Suly's and Lezly's alleged liability arose out of four of the delineated instances in which liability, under the terms of the policy, is Motor Vehicle Liability such that no coverage exists under these facts. UPC's motion relied upon the following pertinent language contained in the policy:

HOMEOWNERS 3 - SPECIAL FORM

DEFINITIONS

B. In addition, certain words and phrases are defined as follows:

1. Motor Vehicle Liability, subject to the provisions in b. below, means the following:

a. Liability for "bodily injury" or "property damage" arising out of the:

(1) Ownership of such vehicle or craft by an "insured";

(2) Maintenance, occupancy , operation, use , loading or unloading of such vehicle or craft by any person ;

(3) Entrustment of such vehicle or craft by an "insured" to any person;

(4) Failure to supervise or negligent supervision of any person involving such vehicle or craft by an "insured "; or

(5) Vicarious liability, whether or not imposed by law, for the actions of a child or minor involving such vehicle or craft. (Emphasis added.)

b. For the purpose of this definition:

(4) Motor vehicle means a "motor vehicle" as defined in 7. Below.

7. "Motor vehicle" means:

a. A self-propelled land or amphibious vehicle[.]

8. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:

a. "Bodily Injury;" or

b. "Property damage."

SECTION II – EXCLUSIONS

This insurance will not provide coverage or payments for indemnity or expense costs under any part of the policy for any "occurrence" arising wholly or in part, out of or in connection with the following activities excluded in paragraphs A . through G .³

Exclusions should be interpreted as excluding negligence arising from or resulting in the excluded loss, including, but not limited to, the negligent hiring, employment, placement, training, supervision, investigation, reporting to the proper authorities, or failure to so report, retention of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by Paragraphs A . through G.

A. "Motor Vehicle Liability"

1. Coverages E and F do not apply to any "motor vehicle liability" if, at the time and place of an "occurrence," the involved "motor vehicle:"⁴

a. Is registered for use on public roads or property;

B. "Watercraft Liability"

C. "Aircraft Liability" or "Drone Liability"

D. "Hovercraft Liability"

E. Coverage E - Personal Liability and Coverage; F-Medical Payments to Others

F. Coverage E – Personal Liability

G. Coverage F – Medical Payments to Others

On February 11, 2021, Ms. Calderon filed a cross-motion, Motion for Partial Summary Judgment on the Issue of Insurance Coverage, countering UPC's assertion that the homeowners’ policy "Motor Vehicle Liability" exclusion precludes coverage for plaintiff's damages that arose from the October 4, 2019 incident. In her motion, Ms. Calderon averred that pursuant to La. C.C.P. art. 966(E), the issue of insurance coverage under FSIC's policy should be resolved in favor of Ms. Calderon because Suly and Lezly are both insureds under the policy, their negligent acts occurred and Avril died on the premises insured by the policy, and the failure to supervise claims did not arise out of the "use" of the vehicle.

On May 7, 2021 the trial court conducted a hearing on the cross-motions for summary judgment and on May 12, 2021 rendered its judgment granting Ms. Calderon's Motion for Partial Summary Judgment on the Issue of Insurance Coverage, which determined that the homeowners’ policy issued by UPC provides indemnity coverage for Avril's death and denying UPC's Motion for Summary Judgment. Accordingly, UPC timely sought the instant devolutive appeal seeking review of the May 12, 2021 judgment.

Standard of Review

"The denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law. However, where, as here, there are cross-motions for summary judgment raising the same issues, this Court will review the denial of a summary judgment in addressing the appeal of the granting of the cross-motion for summary judgment." Asi Fed. Credit Union v. Certain Underwriters at Lloyd's of London Syndicate 1414 Subscribing to Policy FINFR1503374 , 18-164 (La. App. 5 Cir. 11/7/18), 259 So.3d 552, 555 n.1 (citing Waterworks Dist. No. 1 of DeSoto Parish v. La. Dep't. of Pub. Safety & Corr ., 16-0744 (La. App. 1 Cir. 2/17/17), 214 So.3d 1, 3 n.1, writ denied , 17-0470 (La. 5/12/17), 219 So.3d 1103 ). See also Marseilles Homeowners Condo Ass'n v. Broadmoor, LLC , 12-1233 (La. App. 4 Cir. 2/27/13), 111 So.3d 1099, 1103 n.2, Ferguson v. Bocskov , 07-924 (La. App. 5 Cir. 3/25/08), 983 So.2d 162, 164.⁵

Appellate courts review summary judgments de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Louque v. Scott Equip. Co., LLC , 16-507 (La. App. 5 Cir. 2/8/17), 212 So.3d 1203, 1207, writ denied , 17-00372 (La. 4/13/17), 218 So.3d 629. A de novo review or an appeal de novo is an appeal in which the appellate court uses...